# Official Journal C 194/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.194.eng |
| --- | --- |
| Official Journal
  of the European Union | C 194 |
| | |
| English edition | Information and Notices | Volume 542 July 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.194.eng

Official Journal

of the European Union

C 194

English edition

Information and Notices

Volume 542 July 2011

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 194/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 186, 25.6.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 194/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 186, 25.6.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 194/02 | Case C-147/08: Judgment of the Court (Grand Chamber) of 10 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Hamburg — Germany) — Jürgen Römer v Freie und Hansestadt Hamburg (Equal treatment in employment and occupation — General principles of European Union law — Article 157 TFEU — Directive 2000/78/EC — Scope — Concept of pay — Exclusions — Occupational pension scheme in the form of a supplementary retirement pension for former employees of a local authority and their survivors — Method of calculating that pension favouring married recipients over those living in a registered life partnership — Discrimination based on sexual orientation) | 2 |
| 2011/C 194/03 | Joined Cases C-230/09 and C-231/09: Judgment of the Court (First Chamber) of 5 May 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany) — Hauptzollamt Koblenz v Kurt Etling, Thomas Etling (C-230/09), Hauptzollamt Oldenburg (C-231/09) v Theodor Aissen, Hermann Rohaan (Agriculture — Milk and dairy sector — Regulation (EC) No 1788/2003 — Levy in the milk and dairy sector — Regulation (EC) No 1782/2003 — Direct support schemes under the common agricultural policy — Transfer of individual reference quantities — Repercussions on the calculation of the levy — Repercussions on the calculation of the dairy premium) | 3 |
| 2011/C 194/04 | Case C-391/09: Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Vilniaus miesto 1 apylinkės teismas (Republic of Lithuania)) — Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius (Citizenship of the Union — Freedom to move and reside in the Member States — Principle of non-discrimination on grounds of nationality — Articles 18 TFEU and 21 TFEU — Principle of equal treatment of persons irrespective of racial or ethnic origin — Directive 2000/43/EC — National rules requiring that the surnames and forenames of natural persons must be entered on certificates of civil status in a form which complies with the rules governing the spelling of the official national language) | 4 |
| 2011/C 194/05 | Case C-543/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland (Electronic communications — Directive 2002/22/EC — Article 25(2) — Directive 2002/58/EC — Article 12 — Provision of directory enquiry services and directories — Obligation placed on an undertaking assigning telephone numbers to pass to other undertakings data in its possession relating to the subscribers of third-party undertakings) | 5 |
| 2011/C 194/06 | Case C-107/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria)) — Enel Maritsa Iztok 3 AD v Direktor Obzhalvane i upravlenie na izpalnenieto NAP (Reference for a preliminary ruling — VAT — Directives 77/388/EEC and 2006/112/EC — Refund — Time-limit — Interest — Set-off — Principles of fiscal neutrality and proportionality — Protection of legitimate expectations) | 5 |
| 2011/C 194/07 | Case C-144/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Kammergericht Berlin (Germany)) — Berliner Verkehrsbetriebe (BVG), Anstalt des öffentlichen Rechts v JPMorgan Chase Bank NA, Frankfurt Branch (Jurisdiction in civil matters — Articles 22(2) and 27 of Regulation (EC) No 44/2001 — Exclusive jurisdiction of the courts of the State in which a company has its seat to adjudicate upon disputes relating to the validity of decisions of the company’s organs — Scope — Action brought by a legal person governed by public law for a declaration that a contract is void on account of alleged invalidity of the decisions of its organs relating to the conclusion of the contract — Lis pendens — Obligation on any court other than the court first seised to stay proceedings — Scope) | 6 |
| 2011/C 194/08 | Joined Cases C-201/10 and C-202/10: Judgment of the Court (Fourth Chamber) of 5 May 2011 (references for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Ze Fu Fleischhandel GmbH (C-201/10), Vion Trading GmbH (C-202/10) v Hauptzollamt Hamburg-Jonas (Regulation (EC, Euratom) No 2988/95 — Protection of the European Union’s financial interests — Article 3 — Recovery of an export refund — 30-year limitation period — Limitation rule forming part of the general civil law of a Member State — Application by analogy — Principle of legal certainty — Principle of the protection of legitimate expectations — Principle of proportionality) | 7 |
| 2011/C 194/09 | Case C-294/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Augstākās Tiesas Senāts (Republic of Latvia)) — Andrejs Eglītis, Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija (Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Compensation of passengers in the event of cancellation of a flight — Exemption from the obligation to pay compensation in the event of extraordinary circumstances — Implementation, by the air carrier, of all reasonable measures to avoid extraordinary circumstances — Organisation of resources in good time to be able to ensure the operation of the flight after such circumstances have ended) | 7 |
| 2011/C 194/10 | Case C-479/10: Judgment of the Court (Fifth Chamber) of 10 May 2011 — European Commission v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Environment — Directive 1999/30/EC — Pollution control — Limit values for concentrations of PM10 in ambient air) | 8 |
| 2011/C 194/11 | Case C-128/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 March 2011 — UsedSoft GmbH v Oracle International Corp. | 8 |
| 2011/C 194/12 | Case C-165/11: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 4 April 2011 — Daňové riaditeľstvo Slovenskej republiky v Profitube spol. s.r.o. | 9 |
| 2011/C 194/13 | Case C-173/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 8 April 2011 — Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League, PA Sport UK Ltd v Sportradar GmbH (a company registered in Germany), Sportradar (a company registered in Switzerland) | 10 |
| 2011/C 194/14 | Case C-177/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 15 April 2011 — Sillogos Ellinon Poleodomon kai Khorotakton v (1) Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, (2) Ipourgos Ikonomias kai Ikonomikon, (3) Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis | 10 |
| 2011/C 194/15 | Case C-209/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 4 May 2011 — Sportingbet plc v Ipourgos Politismou and Ipourgos Ikonomias kai Ikonomikon | 11 |
| | General Court |
| 2011/C 194/16 | Case T-423/07: Judgment of the General Court of 19 May 2011 — Ryanair v Commission (State aid — Competition — Abuse of a dominant position — Aviation sector — Exclusive use of Terminal 2 at Munich Airport — Action for failure to act — Adoption of a position by the Commission — No need to adjudicate — Obligation to act — None) | 12 |
| 2011/C 194/17 | Case T-502/07: Judgment of the General Court of 18 May 2011 — IIC-Intersport International v OHIM — McKenzie (McKENZIE) (Community trade mark — Opposition proceedings — Application for the Community figurative trade mark McKENZIE — Earlier Community figurative and word marks McKINLEY — 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)) | 12 |
| 2011/C 194/18 | Case T-207/08: Judgment of the General Court of 18 May 2011 — Habanos v OHIM — Tabacos de Centroamérica (KIOWA) (Community trade mark — Opposition proceedings — Application for Community figurative mark KIOWA — Earlier Community and national figurative marks COHIBA — 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)) | 13 |
| 2011/C 194/19 | Case T-580/08: Judgment of the General Court of 19 May 2011 — PJ Hungary v OHIM — Pepekillo (PEPEQUILLO) (Community trade mark — Opposition proceedings — Application for Community word mark PEPEQUILLO — Earlier national and Community word and figurative marks PEPE and PEPE JEANS — Restitutio in integrum — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009) — Article 8(1)(b) and (5) of Regulation No 40/94 (now Article 8(1)(b) and (5) of Regulation No 207/2009)) | 13 |
| 2011/C 194/20 | Case T-376/09: Judgment of the General Court of 18 May 2011 — Glenton España v OHIM — Polo/Lauren (POLO SANTA MARIA) (Community trade mark — Opposition proceedings — Application for Community figurative mark POLO SANTA MARIA — Earlier Benelux figurative mark showing the silhouette of a polo player — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 14 |
| 2011/C 194/21 | Case T-81/10: Judgment of the General Court of 19 May 2011 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE) (Community trade mark — Opposition proceedings — Application for Community word mark AIR FORCE — Earlier Community and national word and figurative marks TIME FORCE — Relative grounds for refusal — No likelihood of confusion — No similarity of signs — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009) | 14 |
| 2011/C 194/22 | Case T-206/11: Action brought on 4 April 2011 — COMPLEX v OHIM — Kajometal (KX) | 14 |
| 2011/C 194/23 | Case T-207/11: Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE) | 15 |
| 2011/C 194/24 | Case T-216/11: Action brought on 18 April 2011 — Progust v OHIM — Sopralex & Vosmarques (IMPERIA) | 15 |
| 2011/C 194/25 | Case T-219/11: Action brought on 15 April 2011 — Otero González v OHIM — Apli-Agipa (AGIPA) | 16 |
| 2011/C 194/26 | Case T-220/11: Action brought on 18 April 2011 — TeamBank v OHIM — Fercredit Servizi Finanziari (f@ir Credit) | 16 |
| 2011/C 194/27 | Case T-223/11: Action brought on 20 April 2011 — Siemens v Commission | 17 |
| 2011/C 194/28 | Case T-224/11: Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG) | 17 |
| 2011/C 194/29 | Case T-225/11: Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG) | 18 |
| 2011/C 194/30 | Case T-227/11: Action brought on 26 April 2011 — Wall v OHIM — Bluepod Media Worldwide (bluepod media) | 18 |
| 2011/C 194/31 | Case T-232/11: Action brought on 4 May 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission | 19 |
| 2011/C 194/32 | Case T-243/11: Action brought on 26 April 2011 — Glaxo Group v OHIM — Farmodiética (ADVANCE) | 19 |
| 2011/C 194/33 | Case T-245/11: Action brought on 6 May 2011 — ClientEarth and International Chemical Secretariat v ECHA | 20 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 194/02

Case C-147/08: Judgment of the Court (Grand Chamber) of 10 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Hamburg — Germany) — Jürgen Römer v Freie und Hansestadt Hamburg (Equal treatment in employment and occupation — General principles of European Union law — Article 157 TFEU — Directive 2000/78/EC — Scope — Concept of pay — Exclusions — Occupational pension scheme in the form of a supplementary retirement pension for former employees of a local authority and their survivors — Method of calculating that pension favouring married recipients over those living in a registered life partnership — Discrimination based on sexual orientation)

2

2011/C 194/03

Joined Cases C-230/09 and C-231/09: Judgment of the Court (First Chamber) of 5 May 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany) — Hauptzollamt Koblenz v Kurt Etling, Thomas Etling (C-230/09), Hauptzollamt Oldenburg (C-231/09) v Theodor Aissen, Hermann Rohaan (Agriculture — Milk and dairy sector — Regulation (EC) No 1788/2003 — Levy in the milk and dairy sector — Regulation (EC) No 1782/2003 — Direct support schemes under the common agricultural policy — Transfer of individual reference quantities — Repercussions on the calculation of the levy — Repercussions on the calculation of the dairy premium)

3

2011/C 194/04

Case C-391/09: Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Vilniaus miesto 1 apylinkės teismas (Republic of Lithuania)) — Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius (Citizenship of the Union — Freedom to move and reside in the Member States — Principle of non-discrimination on grounds of nationality — Articles 18 TFEU and 21 TFEU — Principle of equal treatment of persons irrespective of racial or ethnic origin — Directive 2000/43/EC — National rules requiring that the surnames and forenames of natural persons must be entered on certificates of civil status in a form which complies with the rules governing the spelling of the official national language)

4

2011/C 194/05

Case C-543/09: Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland (Electronic communications — Directive 2002/22/EC — Article 25(2) — Directive 2002/58/EC — Article 12 — Provision of directory enquiry services and directories — Obligation placed on an undertaking assigning telephone numbers to pass to other undertakings data in its possession relating to the subscribers of third-party undertakings)

5

2011/C 194/06

Case C-107/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria)) — Enel Maritsa Iztok 3 AD v Direktor Obzhalvane i upravlenie na izpalnenieto NAP (Reference for a preliminary ruling — VAT — Directives 77/388/EEC and 2006/112/EC — Refund — Time-limit — Interest — Set-off — Principles of fiscal neutrality and proportionality — Protection of legitimate expectations)

5

2011/C 194/07

Case C-144/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Kammergericht Berlin (Germany)) — Berliner Verkehrsbetriebe (BVG), Anstalt des öffentlichen Rechts v JPMorgan Chase Bank NA, Frankfurt Branch (Jurisdiction in civil matters — Articles 22(2) and 27 of Regulation (EC) No 44/2001 — Exclusive jurisdiction of the courts of the State in which a company has its seat to adjudicate upon disputes relating to the validity of decisions of the company’s organs — Scope — Action brought by a legal person governed by public law for a declaration that a contract is void on account of alleged invalidity of the decisions of its organs relating to the conclusion of the contract — Lis pendens — Obligation on any court other than the court first seised to stay proceedings — Scope)

6

2011/C 194/08

Joined Cases C-201/10 and C-202/10: Judgment of the Court (Fourth Chamber) of 5 May 2011 (references for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Ze Fu Fleischhandel GmbH (C-201/10), Vion Trading GmbH (C-202/10) v Hauptzollamt Hamburg-Jonas (Regulation (EC, Euratom) No 2988/95 — Protection of the European Union’s financial interests — Article 3 — Recovery of an export refund — 30-year limitation period — Limitation rule forming part of the general civil law of a Member State — Application by analogy — Principle of legal certainty — Principle of the protection of legitimate expectations — Principle of proportionality)

7

2011/C 194/09

Case C-294/10: Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Augstākās Tiesas Senāts (Republic of Latvia)) — Andrejs Eglītis, Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija (Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Compensation of passengers in the event of cancellation of a flight — Exemption from the obligation to pay compensation in the event of extraordinary circumstances — Implementation, by the air carrier, of all reasonable measures to avoid extraordinary circumstances — Organisation of resources in good time to be able to ensure the operation of the flight after such circumstances have ended)

7

2011/C 194/10

Case C-479/10: Judgment of the Court (Fifth Chamber) of 10 May 2011 — European Commission v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Environment — Directive 1999/30/EC — Pollution control — Limit values for concentrations of PM10 in ambient air)

10

8

2011/C 194/11

Case C-128/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 March 2011 — UsedSoft GmbH v Oracle International Corp.

8

2011/C 194/12

Case C-165/11: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 4 April 2011 — Daňové riaditeľstvo Slovenskej republiky v Profitube spol. s.r.o.

9

2011/C 194/13

Case C-173/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 8 April 2011 — Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League, PA Sport UK Ltd v Sportradar GmbH (a company registered in Germany), Sportradar (a company registered in Switzerland)

10

2011/C 194/14

Case C-177/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 15 April 2011 — Sillogos Ellinon Poleodomon kai Khorotakton v (1) Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, (2) Ipourgos Ikonomias kai Ikonomikon, (3) Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis

10

2011/C 194/15

Case C-209/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 4 May 2011 — Sportingbet plc v Ipourgos Politismou and Ipourgos Ikonomias kai Ikonomikon

11

General Court

2011/C 194/16

Case T-423/07: Judgment of the General Court of 19 May 2011 — Ryanair v Commission (State aid — Competition — Abuse of a dominant position — Aviation sector — Exclusive use of Terminal 2 at Munich Airport — Action for failure to act — Adoption of a position by the Commission — No need to adjudicate — Obligation to act — None)

12

2011/C 194/17

Case T-502/07: Judgment of the General Court of 18 May 2011 — IIC-Intersport International v OHIM — McKenzie (McKENZIE) (Community trade mark — Opposition proceedings — Application for the Community figurative trade mark McKENZIE — Earlier Community figurative and word marks McKINLEY — 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))

12

2011/C 194/18

Case T-207/08: Judgment of the General Court of 18 May 2011 — Habanos v OHIM — Tabacos de Centroamérica (KIOWA) (Community trade mark — Opposition proceedings — Application for Community figurative mark KIOWA — Earlier Community and national figurative marks COHIBA — 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))

13

2011/C 194/19

Case T-580/08: Judgment of the General Court of 19 May 2011 — PJ Hungary v OHIM — Pepekillo (PEPEQUILLO) (Community trade mark — Opposition proceedings — Application for Community word mark PEPEQUILLO — Earlier national and Community word and figurative marks PEPE and PEPE JEANS — Restitutio in integrum — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009) — Article 8(1)(b) and (5) of Regulation No 40/94 (now Article 8(1)(b) and (5) of Regulation No 207/2009))

13

2011/C 194/20

Case T-376/09: Judgment of the General Court of 18 May 2011 — Glenton España v OHIM — Polo/Lauren (POLO SANTA MARIA) (Community trade mark — Opposition proceedings — Application for Community figurative mark POLO SANTA MARIA — Earlier Benelux figurative mark showing the silhouette of a polo player — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

14

2011/C 194/21

Case T-81/10: Judgment of the General Court of 19 May 2011 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE) (Community trade mark — Opposition proceedings — Application for Community word mark AIR FORCE — Earlier Community and national word and figurative marks TIME FORCE — Relative grounds for refusal — No likelihood of confusion — No similarity of signs — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)

14

2011/C 194/22

Case T-206/11: Action brought on 4 April 2011 — COMPLEX v OHIM — Kajometal (KX)

14

2011/C 194/23

Case T-207/11: Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE)

15

2011/C 194/24

Case T-216/11: Action brought on 18 April 2011 — Progust v OHIM — Sopralex & Vosmarques (IMPERIA)

15

2011/C 194/25

Case T-219/11: Action brought on 15 April 2011 — Otero González v OHIM — Apli-Agipa (AGIPA)

16

2011/C 194/26

Case T-220/11: Action brought on 18 April 2011 — TeamBank v OHIM — Fercredit Servizi Finanziari (f@ir Credit)

16

2011/C 194/27

Case T-223/11: Action brought on 20 April 2011 — Siemens v Commission

17

2011/C 194/28

Case T-224/11: Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

17

2011/C 194/29

Case T-225/11: Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

18

2011/C 194/30

Case T-227/11: Action brought on 26 April 2011 — Wall v OHIM — Bluepod Media Worldwide (bluepod media)

18

2011/C 194/31

Case T-232/11: Action brought on 4 May 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

19

2011/C 194/32

Case T-243/11: Action brought on 26 April 2011 — Glaxo Group v OHIM — Farmodiética (ADVANCE)

19

2011/C 194/33

Case T-245/11: Action brought on 6 May 2011 — ClientEarth and International Chemical Secretariat v ECHA

20

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 2.7.2011 | EN | Official Journal of the European Union | C 194/1 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/1

---

2011/C 194/01

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

OJ C 186, 25.6.2011

Past publications

OJ C 179, 18.6.2011

OJ C 173, 11.6.2011

OJ C 160, 28.5.2011

OJ C 152, 21.5.2011

OJ C 145, 14.5.2011

OJ C 139, 7.5.2011

These texts are available on:

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 2.7.2011 | EN | Official Journal of the European Union | C 194/2 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/2

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Judgment of the Court (Grand Chamber) of 10 May 2011 (reference for a preliminary ruling from the Arbeitsgericht Hamburg — Germany) — Jürgen Römer v Freie und Hansestadt Hamburg

(Case C-147/08) (1)

(Equal treatment in employment and occupation - General principles of European Union law - Article 157 TFEU - Directive 2000/78/EC - Scope - Concept of ‘pay’ - Exclusions - Occupational pension scheme in the form of a supplementary retirement pension for former employees of a local authority and their survivors - Method of calculating that pension favouring married recipients over those living in a registered life partnership - Discrimination based on sexual orientation)

2011/C 194/02

Language of the case: German

Referring court

Arbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Jürgen Römer

Defendant: Freie und Hansestadt Hamburg

Re:

Reference for a preliminary ruling — Arbeitsgericht Hamburg — Interpretation of the principle of equal treatment, Article 141 EC, and Articles 1, 2, 3(1)(c) and (3) of and recital 22 in the preamble to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Scope of the directive — Exclusion of payments of any kind made by state schemes or similar, including state social security or social protection schemes — Exclusion of national laws on marital status and the benefits dependent thereon — Occupational pension scheme in the form of a supplementary old-age pension for former employees of a local authority and their survivors — Method of calculation of the pension more favourable to married beneficiaries than to those living in a registered civil partnership

Operative part of the judgment

| 1. | Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that supplementary retirement pensions such as those paid to former employees of the Freie und Hansestadt Hamburg and their survivors on the basis of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg (Erstes Ruhegeldgesetz der Freien und Hansestadt Hamburg), as amended on 30 May 1995, which constitute pay within the meaning of Article 157 TFEU, do not fall outside the material scope of the Directive either on account of Article 3(3) thereof or on account of recital 22 in the preamble thereto; |
| --- | --- |

1.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that supplementary retirement pensions such as those paid to former employees of the Freie und Hansestadt Hamburg and their survivors on the basis of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg (Erstes Ruhegeldgesetz der Freien und Hansestadt Hamburg), as amended on 30 May 1995, which constitute pay within the meaning of Article 157 TFEU, do not fall outside the material scope of the Directive either on account of Article 3(3) thereof or on account of recital 22 in the preamble thereto;

| 2. | Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 preclude a provision of national law such as Paragraph 10(6) of that Law of the Land of Hamburg, under which a pensioner who has entered into a registered life partnership receives a supplementary retirement pension lower than that granted to a married, not permanently separated, pensioner, if






  — | in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership such as that provided for by the Law on registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16 February 2001, which is reserved to persons of the same gender, and |
| --- | --- | --- |

2.

Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 preclude a provision of national law such as Paragraph 10(6) of that Law of the Land of Hamburg, under which a pensioner who has entered into a registered life partnership receives a supplementary retirement pension lower than that granted to a married, not permanently separated, pensioner, if

—

in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership such as that provided for by the Law on registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16 February 2001, which is reserved to persons of the same gender, and

| — | there is direct discrimination on the ground of sexual orientation because, under national law, that life partner is in a legal and factual situation comparable to that of a married person as regards that pension. It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question |
| --- | --- |

—

there is direct discrimination on the ground of sexual orientation because, under national law, that life partner is in a legal and factual situation comparable to that of a married person as regards that pension. It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question

| 3. | Should Paragraph 10(6) of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg, as amended on 30 May 1995, constitute discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual such as the applicant in the main proceedings at the earliest after the expiry of the period for transposing the Directive, namely from 3 December 2003, and it would not be necessary to wait for that provision to be made consistent with European Union law by the national legislature. |
| --- | --- |

3.

Should Paragraph 10(6) of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg, as amended on 30 May 1995, constitute discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual such as the applicant in the main proceedings at the earliest after the expiry of the period for transposing the Directive, namely from 3 December 2003, and it would not be necessary to wait for that provision to be made consistent with European Union law by the national legislature.

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(1)  OJ C 171, 5.7.2008.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/3 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/3

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Judgment of the Court (First Chamber) of 5 May 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany) — Hauptzollamt Koblenz v Kurt Etling, Thomas Etling (C-230/09), Hauptzollamt Oldenburg (C-231/09) v Theodor Aissen, Hermann Rohaan

(Joined Cases C-230/09 and C-231/09) (1)

(Agriculture - Milk and dairy sector - Regulation (EC) No 1788/2003 - Levy in the milk and dairy sector - Regulation (EC) No 1782/2003 - Direct support schemes under the common agricultural policy - Transfer of individual reference quantities - Repercussions on the calculation of the levy - Repercussions on the calculation of the dairy premium)

2011/C 194/03

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Hauptzollamt Koblenz (C-230/09), Hauptzollamt Oldenburg (C-231/09)

Defendants: Kurt Etling, Thomas Etling (C-230/09), Theodor Aissen, Hermann Rohaan (C-231/09)

Intervening party: Bundesministerium der Finanzen

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 5(k) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector (OJ 2003 L 270, p. 123) — Reversion of the milk reference quantity in the course of the reference period following termination of an agricultural lease — Whether the quantity already delivered by the previous lessee during the reference period may be taken into account for the purpose of determining the reference quantity available to the lessor

Operative part of the judgment

| 1. | Article 10(3) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector, as amended by Council Regulation (EC) No 2217/2004 of 22 December 2004, must be interpreted as meaning that the reallocation of the unused part of the national reference quantity allocated to deliveries must be carried out in proportion to the individual reference quantity of each producer having overdelivered, namely that determined at 1 April of the relevant twelve-month period, or according to objective criteria to be set by the Member States. The concept of individual reference quantity used in that provision does not allow transfers of reference quantities during that period to be taken into account. |
| --- | --- |

1.

Article 10(3) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector, as amended by Council Regulation (EC) No 2217/2004 of 22 December 2004, must be interpreted as meaning that the reallocation of the unused part of the national reference quantity allocated to deliveries must be carried out in proportion to the individual reference quantity of each producer having overdelivered, namely that determined at 1 April of the relevant twelve-month period, or according to objective criteria to be set by the Member States. The concept of individual reference quantity used in that provision does not allow transfers of reference quantities during that period to be taken into account.

| 2. | National legislation implementing the option, provided for in Article 10(3) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, of setting objective criteria according to which the reallocation of the unused part of the national reference quantity allocated to deliveries is to be carried out must comply, in particular with general principles of EU law and the objectives pursued by the common agricultural policy, especially those concerning the common organisation of the markets in the milk sector. |
| --- | --- |

2.

National legislation implementing the option, provided for in Article 10(3) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, of setting objective criteria according to which the reallocation of the unused part of the national reference quantity allocated to deliveries is to be carried out must comply, in particular with general principles of EU law and the objectives pursued by the common agricultural policy, especially those concerning the common organisation of the markets in the milk sector.

| 3. | Those objectives do not preclude national legislation, adopted in the context of the implementation of that option, which allows overdelivering producers, who have, in accordance with the provisions of Regulation No 1788/2003, as amended by Regulation No 2217/2004, received a transfer, during the relevant twelve-month period, of an individual reference quantity under which milk has already been delivered for that same period by the producer who previously held it, to participate in that reallocation by including some or all of that reference quantity. Member States must however ensure that such legislation does not give rise to transfers which, while formally complying with the conditions laid down by that regulation, are intended solely to allow certain overdelivering producers to obtain a more favourable position on that reallocation. |
| --- | --- |

3.

Those objectives do not preclude national legislation, adopted in the context of the implementation of that option, which allows overdelivering producers, who have, in accordance with the provisions of Regulation No 1788/2003, as amended by Regulation No 2217/2004, received a transfer, during the relevant twelve-month period, of an individual reference quantity under which milk has already been delivered for that same period by the producer who previously held it, to participate in that reallocation by including some or all of that reference quantity. Member States must however ensure that such legislation does not give rise to transfers which, while formally complying with the conditions laid down by that regulation, are intended solely to allow certain overdelivering producers to obtain a more favourable position on that reallocation.

| 4. | The expression ‘individual reference quantity eligible for premium and available on the holding’ contained in Article 95(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, as amended by Commission Regulation (EC) No 118/2005 of 26 January 2005, which corresponds to the expression ‘available reference quantity’ contained in Article 5(k) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, must be interpreted as meaning that, where a producer has received a transfer, during the relevant twelve-month period, of a reference quantity under which milk has already been delivered by the transferor during the same period, that expression does not cover, as regards the transferee, the part of the transferred reference quantity under which milk has already been delivered exempt from the levy by the transferor. |
| --- | --- |

4.

The expression ‘individual reference quantity eligible for premium and available on the holding’ contained in Article 95(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, as amended by Commission Regulation (EC) No 118/2005 of 26 January 2005, which corresponds to the expression ‘available reference quantity’ contained in Article 5(k) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, must be interpreted as meaning that, where a producer has received a transfer, during the relevant twelve-month period, of a reference quantity under which milk has already been delivered by the transferor during the same period, that expression does not cover, as regards the transferee, the part of the transferred reference quantity under which milk has already been delivered exempt from the levy by the transferor.

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(1)  OJ C 220, 12.9.2009.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/4 |
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2.7.2011

EN

Official Journal of the European Union

C 194/4

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Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Vilniaus miesto 1 apylinkės teismas (Republic of Lithuania)) — Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius

(Case C-391/09) (1)

(Citizenship of the Union - Freedom to move and reside in the Member States - Principle of non-discrimination on grounds of nationality - Articles 18 TFEU and 21 TFEU - Principle of equal treatment of persons irrespective of racial or ethnic origin - Directive 2000/43/EC - National rules requiring that the surnames and forenames of natural persons must be entered on certificates of civil status in a form which complies with the rules governing the spelling of the official national language)

2011/C 194/04

Language of the case: Lithuanian

Referring court

Vilniaus miesto 1 apylinkės teismas

Parties to the main proceedings

Applicants: Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn

Defendants: Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius

Re:

Reference for a preliminary ruling — Interpretation of the first paragraph of Article 12 EC, of Article 18(1) EC, and of Article 2(2)(b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) — National rules requiring that the surnames and forenames of persons of different nationality or citizenship must be entered on certificates of civil status issued by the State in question using the characters of the official language of that State

Operative part of the judgment

| 1. | National rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language relate to a situation which does not come within the scope of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; |
| --- | --- |

1.

National rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language relate to a situation which does not come within the scope of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;

| 2. | Article 21 TFEU must be interpreted as:






  — | not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend, on the birth certificate and marriage certificate of one of its nationals, the surname and forename of that person in accordance with the spelling rules of another Member State; |
| --- | --- | --- |

2.

Article 21 TFEU must be interpreted as:

—

not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend, on the birth certificate and marriage certificate of one of its nationals, the surname and forename of that person in accordance with the spelling rules of another Member State;

| — | not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the joint surname of a married couple who are citizens of the Union, as it appears on the certificates of civil status issued by the Member State of origin of one of those citizens, in a form which complies with the spelling rules of that latter State, on condition that that refusal does not give rise, for those Union citizens, to serious inconvenience at administrative, professional and private levels, this being a matter which it is for the national court to decide. If that proves to be the case, it is also for that court to determine whether the refusal to make the amendment is necessary for the protection of the interests which the national rules are designed to secure and is proportionate to the legitimate aim pursued; |
| --- | --- |

—

not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the joint surname of a married couple who are citizens of the Union, as it appears on the certificates of civil status issued by the Member State of origin of one of those citizens, in a form which complies with the spelling rules of that latter State, on condition that that refusal does not give rise, for those Union citizens, to serious inconvenience at administrative, professional and private levels, this being a matter which it is for the national court to decide. If that proves to be the case, it is also for that court to determine whether the refusal to make the amendment is necessary for the protection of the interests which the national rules are designed to secure and is proportionate to the legitimate aim pursued;

| — | not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the marriage certificate of a citizen of the Union who is a national of another Member State in such a way that the forenames of that citizen are entered on that certificate with diacritical marks as they were entered on the certificates of civil status issued by his Member State of origin and in a form which complies with the rules governing the spelling of the official national language of that latter State. |
| --- | --- |

—

not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the marriage certificate of a citizen of the Union who is a national of another Member State in such a way that the forenames of that citizen are entered on that certificate with diacritical marks as they were entered on the certificates of civil status issued by his Member State of origin and in a form which complies with the rules governing the spelling of the official national language of that latter State.

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(1)  OJ C 312, 19.12.2009.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/5 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/5

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Deutsche Telekom AG v Bundesrepublik Deutschland

(Case C-543/09) (1)

(Electronic communications - Directive 2002/22/EC - Article 25(2) - Directive 2002/58/EC - Article 12 - Provision of directory enquiry services and directories - Obligation placed on an undertaking assigning telephone numbers to pass to other undertakings data in its possession relating to the subscribers of third-party undertakings)

2011/C 194/05

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Deutsche Telekom AG

Defendant: Bundesrepublik Deutschland

Intervening parties: GoYellow GmbH, Telix AG

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 25(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) and Article 12 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) — Provision of telephone directory services — Scope of the obligation imposed on an undertaking which has assigned telephone numbers to subscribers to pass on to other undertakings all the data relevant for publishing a universal directory or providing a universal information service — Data relating to subscribers of third-party undertakings

Operative part of the judgment

| 1. | Article 25(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding national legislation under which undertakings assigning telephone numbers to end-users must make available to undertakings whose activity consists in providing publicly available directory enquiry services and directories not only data relating to their own subscribers but also data in their possession relating to subscribers of third-party undertakings. |
| --- | --- |

1.

Article 25(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding national legislation under which undertakings assigning telephone numbers to end-users must make available to undertakings whose activity consists in providing publicly available directory enquiry services and directories not only data relating to their own subscribers but also data in their possession relating to subscribers of third-party undertakings.

| 2. | Article 12 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers, provided, however, that those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider and that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication. |
| --- | --- |

2.

Article 12 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers, provided, however, that those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider and that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication.

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(1)  OJ C 80, 27.3.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/5 |
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2.7.2011

EN

Official Journal of the European Union

C 194/5

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Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria)) — Enel Maritsa Iztok 3 AD v Direktor ‘Obzhalvane i upravlenie na izpalnenieto’ NAP

(Case C-107/10) (1)

(Reference for a preliminary ruling - VAT - Directives 77/388/EEC and 2006/112/EC - Refund - Time-limit - Interest - Set-off - Principles of fiscal neutrality and proportionality - Protection of legitimate expectations)

2011/C 194/06

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Enel Maritsa Iztok 3 AD

Defendant: Direktor „Obzhalvane i upravlenie na izpalnenieto“ NAP

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 18(4) 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) and Article 183, first paragraph, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Mandatory period within which excess VAT is to be refunded, at the expiry of which the interest due to the taxable person is calculated — Amendment to national legislation during such a calculation providing that, in the event of a tax investigation, that calculation will be made as of the date of issue of the tax notice concluding the tax investigation — Reasonable period — Whether it is possible to refund excess VAT by setting off the sum to be refunded against tax liabilities of the taxable person — Principles of fiscal neutrality and proportionality

Operative part of the judgment

| 1. | Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2006/138/EC of 19 December 2006, in conjunction with the principle of the protection of legitimate expectations, is to be interpreted as precluding national legislation which provides, with retrospective effect, for the extension of the period within which excess value added tax is to be refunded, in so far as that legislation deprives the taxable person of the right enjoyed before the entry into force of the legislation to obtain default interest on the sum to be refunded. |
| --- | --- |

1.

Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2006/138/EC of 19 December 2006, in conjunction with the principle of the protection of legitimate expectations, is to be interpreted as precluding national legislation which provides, with retrospective effect, for the extension of the period within which excess value added tax is to be refunded, in so far as that legislation deprives the taxable person of the right enjoyed before the entry into force of the legislation to obtain default interest on the sum to be refunded.

| 2. | Article 183 of Directive 2006/112, as amended by Directive 2006/138, in the light of the principle of fiscal neutrality, is to be interpreted as precluding national legislation under which the normal period for refunding excess valued added tax, at the expiry of which default interest is payable on the sum to be refunded, is extended where a tax investigation is instigated, the effect of the extension being that such interest is payable only from the date on which the investigation is completed, the excess having already been carried forward during the three tax periods following that in which it arose. On the other hand, the fact that the normal period is 45 days is not contrary to that provision. |
| --- | --- |

2.

Article 183 of Directive 2006/112, as amended by Directive 2006/138, in the light of the principle of fiscal neutrality, is to be interpreted as precluding national legislation under which the normal period for refunding excess valued added tax, at the expiry of which default interest is payable on the sum to be refunded, is extended where a tax investigation is instigated, the effect of the extension being that such interest is payable only from the date on which the investigation is completed, the excess having already been carried forward during the three tax periods following that in which it arose. On the other hand, the fact that the normal period is 45 days is not contrary to that provision.

| 3. | Article 183 of the Directive 2006/112, as amended by Directive 2006/138, is to be interpreted as not precluding the refund of excess valued added tax by way of set-off. |
| --- | --- |

3.

Article 183 of the Directive 2006/112, as amended by Directive 2006/138, is to be interpreted as not precluding the refund of excess valued added tax by way of set-off.

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(1)  OJ C 134, 22.5.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/6 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/6

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Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Kammergericht Berlin (Germany)) — Berliner Verkehrsbetriebe (BVG), Anstalt des öffentlichen Rechts v JPMorgan Chase Bank NA, Frankfurt Branch

(Case C-144/10) (1)

(Jurisdiction in civil matters - Articles 22(2) and 27 of Regulation (EC) No 44/2001 - Exclusive jurisdiction of the courts of the State in which a company has its seat to adjudicate upon disputes relating to the validity of decisions of the company’s organs - Scope - Action brought by a legal person governed by public law for a declaration that a contract is void on account of alleged invalidity of the decisions of its organs relating to the conclusion of the contract - Lis pendens - Obligation on any court other than the court first seised to stay proceedings - Scope)

2011/C 194/07

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Applicant: Berliner Verkehrsbetriebe (BVG), Anstalt des öffentlichen Rechts

Defendant: JPMorgan Chase Bank NA, Frankfurt Branch

Re:

Reference for a preliminary ruling — Kammergericht Berlin — Interpretation of Articles 22(2) and 27 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Exclusive jurisdiction of the courts of the State in which a company has its seat over disputes concerning the validity of the decisions of its organs — Applicability of that exclusive jurisdiction rule to an action brought by a legal person governed by public law for a declaration that an agreement is void on account of the alleged invalidity of the decisions of its organs relating to the conclusion of the agreement

Operative part of the judgment

Article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not applying to proceedings in which a company pleads that a contract cannot be relied upon against it because a decision of its organs which led to the conclusion of the contract is supposedly invalid on account of infringement of its statutes.

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(1)  OJ C 148, 5.6.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/7 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/7

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Judgment of the Court (Fourth Chamber) of 5 May 2011 (references for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Ze Fu Fleischhandel GmbH (C-201/10), Vion Trading GmbH (C-202/10) v Hauptzollamt Hamburg-Jonas

(Joined Cases C-201/10 and C-202/10) (1)

(Regulation (EC, Euratom) No 2988/95 - Protection of the European Union’s financial interests - Article 3 - Recovery of an export refund - 30-year limitation period - Limitation rule forming part of the general civil law of a Member State - Application ‘by analogy’ - Principle of legal certainty - Principle of the protection of legitimate expectations - Principle of proportionality)

2011/C 194/08

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicants: Ze Fu Fleischhandel GmbH (C-201/10), Vion Trading GmbH (C-202/10)

Defendant: Hauptzollamt Hamburg-Jonas

Re:

References for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 3(3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1) — Recovery of an export refund wrongly received by the exporter by reason of irregularities committed by the latter — Application of national legislation providing for a 30-year limitation period — Principles of legal certainty and proportionality

Operative part of the judgment

| 1. | In circumstances such as those at issue in the cases in the main proceedings, the principle of legal certainty does not preclude in principle, in the context of the protection — as defined by Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests — of the European Union’s financial interests and pursuant to Article 3(3) of that regulation, the national authorities and courts of a Member State from applying ‘by analogy’ to proceedings relating to repayment of a wrongly granted export refund a limitation period derived from a general provision of national law, provided, however, that such application resulting from a judicially determined practice was sufficiently foreseeable, a matter which it is for the referring court to establish. |
| --- | --- |

1.

In circumstances such as those at issue in the cases in the main proceedings, the principle of legal certainty does not preclude in principle, in the context of the protection — as defined by Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests — of the European Union’s financial interests and pursuant to Article 3(3) of that regulation, the national authorities and courts of a Member State from applying ‘by analogy’ to proceedings relating to repayment of a wrongly granted export refund a limitation period derived from a general provision of national law, provided, however, that such application resulting from a judicially determined practice was sufficiently foreseeable, a matter which it is for the referring court to establish.

| 2. | In circumstances such as those at issue in the cases in the main proceedings, the principle of proportionality precludes, in the context of exercise by the Member States of the power which they are given by Article 3(3) of Regulation No 2988/95, application of a 30-year limitation period to proceedings relating to repayment of wrongly received refunds. |
| --- | --- |

2.

In circumstances such as those at issue in the cases in the main proceedings, the principle of proportionality precludes, in the context of exercise by the Member States of the power which they are given by Article 3(3) of Regulation No 2988/95, application of a 30-year limitation period to proceedings relating to repayment of wrongly received refunds.

| 3. | In circumstances such as those at issue in the cases in the main proceedings, the principle of legal certainty precludes a ‘longer’ limitation period within the meaning of Article 3(3) of Regulation No 2988/95 from resulting from a limitation period under the general law that is reduced by case-law so that, when applied, it complies with the principle of proportionality, since, in any event, the four-year limitation period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95 can be applied in such circumstances. |
| --- | --- |

3.

In circumstances such as those at issue in the cases in the main proceedings, the principle of legal certainty precludes a ‘longer’ limitation period within the meaning of Article 3(3) of Regulation No 2988/95 from resulting from a limitation period under the general law that is reduced by case-law so that, when applied, it complies with the principle of proportionality, since, in any event, the four-year limitation period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95 can be applied in such circumstances.

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(1)  OJ C 209, 31.7.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/7 |
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2.7.2011

EN

Official Journal of the European Union

C 194/7

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Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Augstākās Tiesas Senāts (Republic of Latvia)) — Andrejs Eglītis, Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija

(Case C-294/10) (1)

(Air transport - Regulation (EC) No 261/2004 - Article 5(3) - Compensation of passengers in the event of cancellation of a flight - Exemption from the obligation to pay compensation in the event of extraordinary circumstances - Implementation, by the air carrier, of all reasonable measures to avoid extraordinary circumstances - Organisation of resources in good time to be able to ensure the operation of the flight after such circumstances have ended)

2011/C 194/09

Language of the case: Latvian

Referring court

Augstākās Tiesas Senāts

Parties to the main proceedings

Applicants: Andrejs Eglītis, Edvards Ratnieks

Defendant: Latvijas Republikas Ekonomikas ministrija

Re:

Reference for a preliminary ruling — Augstākās Tiesas Senāts — Interpretation of Articles 5(3) and 6(1) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Cancellation of a flight caused initially by air space closure because of problems with radar and aviation systems and then by expiry of the crew’s maximum permitted working time — Taking, by the air carrier, of all reasonable measures to avoid extraordinary circumstances

Operative part of the judgment

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that an air carrier, since it is obliged to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. However, that provision cannot be interpreted as requiring, as a ‘reasonable measure’, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. The assessment of the ability of the air carrier to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time. Article 6(1) of that regulation is not applicable in the context of such an assessment.

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(1)  OJ C 221, 14.8.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/8 |
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2.7.2011

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Official Journal of the European Union

C 194/8

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Judgment of the Court (Fifth Chamber) of 10 May 2011 — European Commission v Kingdom of Sweden

(Case C-479/10) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 1999/30/EC - Pollution control - Limit values for concentrations of PM10 in ambient air)

2011/C 194/10

Language of the case: Swedish

Parties

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

Defendant: Kingdom of Sweden (represented by: A. Falk and C. Meyer-Seitz, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41) — PM10 particles exceeding limit values in ambient air in zones SW 2 and SW 4 in 2005, 2006 and 2007 and in zone SW 5 in 2005 and 2006.

Operative part of the judgment

The Court:

| 1. | Declares that, by exceeding the limit values for concentrations of PMlO in ambient air from 2005 to 2007 in zones SW 2 and SW 4 and in 2005 and 2006 in zone SW 5, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air; |
| --- | --- |

1.

Declares that, by exceeding the limit values for concentrations of PMlO in ambient air from 2005 to 2007 in zones SW 2 and SW 4 and in 2005 and 2006 in zone SW 5, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air;

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

2.

Orders the Kingdom of Sweden to pay the costs.

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(1)  OJ C 328, 4.12.2010.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/8 |
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2.7.2011

EN

Official Journal of the European Union

C 194/8

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 March 2011 — UsedSoft GmbH v Oracle International Corp.

(Case C-128/11)

2011/C 194/11

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: UsedSoft GmbH

Defendant: Oracle International Corp.

Questions referred

| 1. | Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) of Directive 2009/24/EC? (1) |
| --- | --- |

1.

Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) of Directive 2009/24/EC? (1)

| 2. | If the reply to the first question is in the affirmative: is the right to distribute a copy of a computer program exhausted in accordance with the first half-sentence of Article 4(2) of Directive 2009/24/EC when the acquirer has made the copy with the rightholder’s consent by downloading the program from the internet onto a data carrier? |
| --- | --- |

2.

If the reply to the first question is in the affirmative: is the right to distribute a copy of a computer program exhausted in accordance with the first half-sentence of Article 4(2) of Directive 2009/24/EC when the acquirer has made the copy with the rightholder’s consent by downloading the program from the internet onto a data carrier?

| 3. | If the reply to the second question is also in the affirmative: can a person who has acquired a ‘used’ software licence for generating a program copy as ‘lawful acquirer’ under Article 5(1) and the first half-sentence of Article 4(2) of Directive 2009/24 also rely on exhaustion of the right to distribute the copy of the computer program made by the first acquirer with the rightholder’s consent by downloading the program from the internet onto a data carrier if the first acquirer has erased his program copy or no longer uses it? |
| --- | --- |

3.

If the reply to the second question is also in the affirmative: can a person who has acquired a ‘used’ software licence for generating a program copy as ‘lawful acquirer’ under Article 5(1) and the first half-sentence of Article 4(2) of Directive 2009/24 also rely on exhaustion of the right to distribute the copy of the computer program made by the first acquirer with the rightholder’s consent by downloading the program from the internet onto a data carrier if the first acquirer has erased his program copy or no longer uses it?

---

(1)  Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (OJ 2009 L 111, p. 16).

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/9 |
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2.7.2011

EN

Official Journal of the European Union

C 194/9

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Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 4 April 2011 — Daňové riaditeľstvo Slovenskej republiky v Profitube spol. s.r.o.

(Case C-165/11)

2011/C 194/12

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic)

Parties to the main proceedings

Applicant: Daňové riaditeľstvo Slovenskej republiky (Tax Directorate of the Slovak Republic)

Defendant: Profitube spol. s.r.o.

Questions referred

| 1. | In a situation where, in 2005 and 2006, goods from a non-Member State of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not to release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is the said sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by the said sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), (1) i.e. is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive? |
| --- | --- |

1.

In a situation where, in 2005 and 2006, goods from a non-Member State of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not to release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is the said sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by the said sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), (1) i.e. is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive?

| 2. | In light of the doctrine of abuse of rights developed by the Court of Justice of the European Union and concerning the application of the Sixth Directive (C-255/02 Halifax), is it possible to treat the above as a situation where the applicant, by selling goods in a public customs warehouse located in the territory of the Slovak Republic, has already made supply for consideration in the Slovak Republic? |
| --- | --- |

2.

In light of the doctrine of abuse of rights developed by the Court of Justice of the European Union and concerning the application of the Sixth Directive (C-255/02 Halifax), is it possible to treat the above as a situation where the applicant, by selling goods in a public customs warehouse located in the territory of the Slovak Republic, has already made supply for consideration in the Slovak Republic?

| 3. | If the reply to the first question is in the affirmative, in that the transaction in question is now subject to the system under the Sixth Directive, is that transaction then a chargeable event






  (a) | under Article 10(1) and (2) of the Sixth Directive, with the tax becoming chargeable as a result of the delivery of the goods in the customs warehouse located in the territory of the Slovak Republic; or |
| --- | --- | --- |

3.

If the reply to the first question is in the affirmative, in that the transaction in question is now subject to the system under the Sixth Directive, is that transaction then a chargeable event

(a)

under Article 10(1) and (2) of the Sixth Directive, with the tax becoming chargeable as a result of the delivery of the goods in the customs warehouse located in the territory of the Slovak Republic; or

| (b) | on the ground that, after the goods were imported from a third country (Article 10(3) of the Sixth Directive), the customs procedure ended while the goods were held in storage in that customs warehouse upon sale thereof to another person from the Member State? |
| --- | --- |

(b)

on the ground that, after the goods were imported from a third country (Article 10(3) of the Sixth Directive), the customs procedure ended while the goods were held in storage in that customs warehouse upon sale thereof to another person from the Member State?

| 4. | Are the objectives of the Sixth Directive as expressed in the preamble thereof, or the objectives of the GATT (WTO), fulfilled if the sale of goods imported from a third country to a customs warehouse and then processed therein and sold to another person from that Member State in the customs warehouse in the territory of the Member State of the European Community is not subject to value added tax in that Member State? |
| --- | --- |

4.

Are the objectives of the Sixth Directive as expressed in the preamble thereof, or the objectives of the GATT (WTO), fulfilled if the sale of goods imported from a third country to a customs warehouse and then processed therein and sold to another person from that Member State in the customs warehouse in the territory of the Member State of the European Community is not subject to value added tax in that Member State?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment

OJ 1977 L 145, p. 1.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/10 |
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Official Journal of the European Union

C 194/10

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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 8 April 2011 — Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League, PA Sport UK Ltd v Sportradar GmbH (a company registered in Germany), Sportradar (a company registered in Switzerland)

(Case C-173/11)

2011/C 194/13

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicants: Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League, PA Sport UK Ltd

Defendants: Sportradar GmbH (a company registered in Germany), Sportradar (a company registered in Switzerland)

Questions referred

| 1. | Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (1) (‘the Database Directive’) onto that party's web server located in member state A and in response to requests from a user in another member state B the web server sends such data to the user's computer so that the data is stored in the memory of that computer and displayed on its screen






  (a) | is the act of sending the data an act of ‘extraction’ or ‘re-utilisation’ by that party? |
| --- | --- | --- |

1.

Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (1) (‘the Database Directive’) onto that party's web server located in member state A and in response to requests from a user in another member state B the web server sends such data to the user's computer so that the data is stored in the memory of that computer and displayed on its screen

(a)

is the act of sending the data an act of ‘extraction’ or ‘re-utilisation’ by that party?

| (b) | does any act of extraction and/or re-utilisation by that party occur






  (i) | in A only |
| --- | --- | --- |

(b)

does any act of extraction and/or re-utilisation by that party occur

(i)

in A only

| (ii) | in B only or |
| --- | --- |

(ii)

in B only or

| (iii) | in both A and B? |
| --- | --- |

(iii)

in both A and B?

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(1)  Directive 96/9/EC of the European Parliament and of the Council of 11 march 1996 on the legal protection of databases, OJ L 77, p. 20

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/10 |
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2.7.2011

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Official Journal of the European Union

C 194/10

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Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 15 April 2011 — Sillogos Ellinon Poleodomon kai Khorotakton v (1) Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, (2) Ipourgos Ikonomias kai Ikonomikon, (3) Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis

(Case C-177/11)

2011/C 194/14

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Sillogos Ellinon Poleodomon kai Khorotakton

Defendants: (1) Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, (2) Ipourgos Ikonomias kai Ikonomikon, (3) Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis

Question referred

Does Article 3(2)(b) of Directive 2001/42/ΕC on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30), in providing that an environmental assessment is to be carried out for all plans and programmes ‘which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/ΕEC’, mean that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions for environmental assessment under Directive 92/43/ΕEC being met in respect of that plan and that, therefore, the provision in question of Directive 2001/42/ΕC also requires, like the above provisions of Directive 92/43/ΕEC, affirmation that the plan is likely to have a significant effect on a special area of conservation, whilst leaving the substantive assessment in that regard to the Member States? Or is Article 3(2)(b) of Directive 2001/42 to be interpreted as meaning that the requirement to carry out an environmental assessment under that provision does not depend on the preconditions for carrying out an environmental assessment under Directive 92/43 being met, that is to say on the finding as to the likelihood of significant effects on a special area of conservation, and it is sufficient to find that a particular plan is connected in some way with a site envisaged in Directive 92/43, but not necessarily with a special area of conservation, in order for the obligation to carry out such an assessment to be activated?

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/11 |
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2.7.2011

EN

Official Journal of the European Union

C 194/11

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Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 4 May 2011 — Sportingbet plc v Ipourgos Politismou and Ipourgos Ikonomias kai Ikonomikon

(Case C-209/11)

2011/C 194/15

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Sportingbet plc

Respondents: Ipourgos Politismou and Ipourgos Ikonomias kai Ikonomikon

Questions referred

| 1. | Is national legislation which, in order to attain the objective of restricting the supply of games of chance, grants the exclusive right to run, manage, organise and operate games of chance to a single undertaking, which has the form of a public limited company and is listed on the stock exchange, compatible with Articles 43 and 49 of the EC Treaty where, moreover, that undertaking advertises the games of chance which it organises and it expands abroad, players participate freely and the maximum bet and winnings are set per form and not per player? |
| --- | --- |

1.

Is national legislation which, in order to attain the objective of restricting the supply of games of chance, grants the exclusive right to run, manage, organise and operate games of chance to a single undertaking, which has the form of a public limited company and is listed on the stock exchange, compatible with Articles 43 and 49 of the EC Treaty where, moreover, that undertaking advertises the games of chance which it organises and it expands abroad, players participate freely and the maximum bet and winnings are set per form and not per player?

| 2. | If the answer to the first question referred is in the negative, is national legislation which, in seeking exclusively to combat criminality by exercising control over the undertakings that operate in the sector at issue so as to ensure that those activities are carried out solely within controlled systems, grants a single undertaking the exclusive right to run, manage, organise and operate games of chance compatible with Articles 43 and 49 of the EC Treaty even where grant of the right results in parallel in unrestricted expansion of the supply in question? Or is it necessary in every case, in order for that restriction to be considered suitable for achieving the objective of combating criminality, that the expansion of supply be controlled in any event, that is to say, be only as great as is required in order to achieve that objective? If that expansion must in any event be controlled, can expansion be considered controlled from that point of view if the exclusive right in the sector in question is granted to a body with the attributes described in the first question referred? Finally, if grant of the exclusive right in question is considered to result in controlled expansion of the supply of games of chance, does its grant to just a single undertaking go beyond what is necessary, in the sense that the same objective can also be profitably served by granting that right to more than one undertaking? |
| --- | --- |

2.

If the answer to the first question referred is in the negative, is national legislation which, in seeking exclusively to combat criminality by exercising control over the undertakings that operate in the sector at issue so as to ensure that those activities are carried out solely within controlled systems, grants a single undertaking the exclusive right to run, manage, organise and operate games of chance compatible with Articles 43 and 49 of the EC Treaty even where grant of the right results in parallel in unrestricted expansion of the supply in question? Or is it necessary in every case, in order for that restriction to be considered suitable for achieving the objective of combating criminality, that the expansion of supply be controlled in any event, that is to say, be only as great as is required in order to achieve that objective? If that expansion must in any event be controlled, can expansion be considered controlled from that point of view if the exclusive right in the sector in question is granted to a body with the attributes described in the first question referred? Finally, if grant of the exclusive right in question is considered to result in controlled expansion of the supply of games of chance, does its grant to just a single undertaking go beyond what is necessary, in the sense that the same objective can also be profitably served by granting that right to more than one undertaking?

| 3. | If, following the above two questions referred, it were to be held that the grant, by the national provisions relevant in the case in point, of an exclusive right to run, manage, organise and operate games of chance is not compatible with Articles 43 and 49 of the EC Treaty: (a) is it permissible, for the purposes of those provisions of the Treaty, for the national authorities not to examine, during a transitional period necessary in order to enact rules compatible with the EC Treaty, applications to engage in the activities in question submitted by persons lawfully established in other Member States; (b) if the answer is in the affirmative, on the basis of what criteria is the duration of that transitional period determined; (c) if no transitional period is allowed, on the basis of what criteria must the national authorities rule on the applications? |
| --- | --- |

3.

If, following the above two questions referred, it were to be held that the grant, by the national provisions relevant in the case in point, of an exclusive right to run, manage, organise and operate games of chance is not compatible with Articles 43 and 49 of the EC Treaty: (a) is it permissible, for the purposes of those provisions of the Treaty, for the national authorities not to examine, during a transitional period necessary in order to enact rules compatible with the EC Treaty, applications to engage in the activities in question submitted by persons lawfully established in other Member States; (b) if the answer is in the affirmative, on the basis of what criteria is the duration of that transitional period determined; (c) if no transitional period is allowed, on the basis of what criteria must the national authorities rule on the applications?

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General Court

| 2.7.2011 | EN | Official Journal of the European Union | C 194/12 |
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2.7.2011

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Official Journal of the European Union

C 194/12

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Judgment of the General Court of 19 May 2011 — Ryanair v Commission

(Case T-423/07) (1)

(State aid - Competition - Abuse of a dominant position - Aviation sector - Exclusive use of Terminal 2 at Munich Airport - Action for failure to act - Adoption of a position by the Commission - No need to adjudicate - Obligation to act - None)

2011/C 194/16

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: European Commission (represented by: L. Flynn, S. Noë and E. Righini, Agents)

Re:

APPLICATION for a declaration that the Commission has failed to act in unlawfully failing to adopt a position on the applicant’s complaint concerning, first, aid allegedly granted by the Federal Republic of Germany to Lufthansa and its Star Alliance partners in the form of the exclusive use of Terminal 2 at Munich Airport (Germany) and, second, alleged abuse of a dominant position by Munich Airport

Operative part of the judgment

The Court:

| 1. | Declares that there is no need to give a ruling on the claim submitted by Ryanair Ltd that the Commission failed to act in relation to the alleged State aid to Lufthansa; |
| --- | --- |

1.

Declares that there is no need to give a ruling on the claim submitted by Ryanair Ltd that the Commission failed to act in relation to the alleged State aid to Lufthansa;

| 2. | Rejects the claim submitted by Ryanair that the Commission failed to act in relation to the alleged State aid to Lufthansa’s Star Alliance partners; |
| --- | --- |

2.

Rejects the claim submitted by Ryanair that the Commission failed to act in relation to the alleged State aid to Lufthansa’s Star Alliance partners;

| 3. | Rejects the claim submitted by Ryanair that the Commission failed to act in relation to the alleged abuse of a dominant position; |
| --- | --- |

3.

Rejects the claim submitted by Ryanair that the Commission failed to act in relation to the alleged abuse of a dominant position;

| 4. | Orders the European Commission to pay its own costs and half of those incurred by Ryanair; |
| --- | --- |

4.

Orders the European Commission to pay its own costs and half of those incurred by Ryanair;

| 5. | Orders Ryanair to pay half its own costs. |
| --- | --- |

5.

Orders Ryanair to pay half its own costs.

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(1)  OJ C 8, 12.1.2008.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/12 |
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2.7.2011

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Official Journal of the European Union

C 194/12

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Judgment of the General Court of 18 May 2011 — IIC-Intersport International v OHIM — McKenzie (McKENZIE)

(Case T-502/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative trade mark McKENZIE - Earlier Community figurative and word marks McKINLEY - 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))

2011/C 194/17

Language of the case: English

Parties

Applicant: IIC-Intersport International Corp. GmbH (Ostermundigen, Switzerland) (represented by: P. Steinhauser, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: The McKenzie Corporation Ltd (Ponteland Village, Newcastle Upon Tyne, United Kingdom) (represented by: D. Alexander QC, R. Kempner and O.M. Delafaille, Solicitors)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 15 October 2007 (Case R 1425/2006-2) relating to opposition proceedings between The McKenzie Corporation Ltd and IIC — Intersport International Corp. GmbH

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders IIC-Intersport International Corp. GmbH to pay the costs. |
| --- | --- |

2.

Orders IIC-Intersport International Corp. GmbH to pay the costs.

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(1)  OJ C 51, 23.2.2008.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/13 |
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2.7.2011

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Official Journal of the European Union

C 194/13

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Judgment of the General Court of 18 May 2011 — Habanos v OHIM — Tabacos de Centroamérica (KIOWA)

(Case T-207/08) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark KIOWA - Earlier Community and national figurative marks COHIBA - 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))

2011/C 194/18

Language of the case: Spanish

Parties

Applicant: Corporación Habanos, SA (Havana, Cuba) (represented initially by V. Gil Vega and A. Ruiz López, and subsequently by A. Ruiz López, lawyers)

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, intervener before the Court: Tabacos de Centroamérica, SL (Pozuelo de Alarcón, Spain) (represented by: R.M. Caldés Llopis, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 31 March 2008 (Case R 1189/2007-2) relating to opposition proceedings between Corporación Habanos, SA and Tabacos de Centroamérica, SL.

Operative part of the judgment

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

1.

The action is dismissed;

| 2. | Corporación Habanos, SA is ordered to bear its own costs and pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM); |
| --- | --- |

2.

Corporación Habanos, SA is ordered to bear its own costs and pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

| 3. | Tabacos de Centroamérica, SL is ordered to bear its own costs. |
| --- | --- |

3.

Tabacos de Centroamérica, SL is ordered to bear its own costs.

---

(1)  OJ C 209, 15.08.2008.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/13 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/13

---

Judgment of the General Court of 19 May 2011 — PJ Hungary v OHIM — Pepekillo (PEPEQUILLO)

(Case T-580/08) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark PEPEQUILLO - Earlier national and Community word and figurative marks PEPE and PEPE JEANS - Restitutio in integrum - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009) - Article 8(1)(b) and (5) of Regulation No 40/94 (now Article 8(1)(b) and (5) of Regulation No 207/2009))

2011/C 194/19

Language of the case: Spanish

Parties

Applicant: PJ Hungary Szolgáltató kft (PJ Hungary kft) (Budapest, Hungary) (represented by: H. Granado Carpenter and C. Gutiérrez Martínez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Pepekillo, SL (Algeciras, Spain) (represented by: J. Garrido Pastor, lawyer)

Re:

Action brought against the decisions of the First Board of Appeal of OHIM of 30 April and 24 September 2008 (both given in Case R 722/2007-1), concerning the application restitutio in integrum of Pepekillo, SL, and the opposition proceedings between PJ Hungary Szolgáltató kft (PJ Hungary kft) and Pepekillo, respectively.

Operative part of the judgment

| 1. | The decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2008 (Case R 722/2007-1) is annulled; |
| --- | --- |

1.

The decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2008 (Case R 722/2007-1) is annulled;

| 2. | The remainder of the action is dismissed; |
| --- | --- |

2.

The remainder of the action is dismissed;

| 3. | OHIM is ordered to bear its own costs, half of the costs of PJ Hungary Szolgáltató kft (PJ Hungary kft) as well as the costs necessarily incurred by PJ Hungary kft for the purpose of the proceedings before the First Board of Appeal of OHIM; |
| --- | --- |

3.

OHIM is ordered to bear its own costs, half of the costs of PJ Hungary Szolgáltató kft (PJ Hungary kft) as well as the costs necessarily incurred by PJ Hungary kft for the purpose of the proceedings before the First Board of Appeal of OHIM;

| 4. | Pepekillo, SL is ordered to bear its own costs and half of the costs of PJ Hungary kft. |
| --- | --- |

4.

Pepekillo, SL is ordered to bear its own costs and half of the costs of PJ Hungary kft.

---

(1)  OJ C 44, 21.2.2009.

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/14 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/14

---

Judgment of the General Court of 18 May 2011 — Glenton España v OHIM — Polo/Lauren (POLO SANTA MARIA)

(Case T-376/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark POLO SANTA MARIA - Earlier Benelux figurative mark showing the silhouette of a polo player - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 194/20

Language of the case: English

Parties

Applicant: Glenton España, SA (Madrid, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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, intervener before the General Court: The Polo/Lauren Company, LP (New York, New York, United States) (represented by: R. Black, R. Guthrie, Solicitors, and S. Malynicz, Barrister)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 18 June 2009 (Case R 594/2008-2) in relation to opposition proceedings between The Polo/Lauren Company, LP, and Glenton España, SA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Glenton España, SA to pay the costs. |
| --- | --- |

2.

Orders Glenton España, SA to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/14 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/14

---

Judgment of the General Court of 19 May 2011 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE)

(Case T-81/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark AIR FORCE - Earlier Community and national word and figurative marks TIME FORCE - Relative grounds for refusal - No likelihood of confusion - No similarity of signs - Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)

2011/C 194/21

Language of the case: Spanish

Parties

Applicant: Tempus Vade, SL (San Sebastián de los Reyes, Spain) (represented by: A. Gómez López, 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, intervener before the Court: Juan Palacios Serrano (Alcobendas, Spain) (represented by: E. Ochoa Santamaría, J. del Valle Sánchez and V. Ruiz de Velasco Martinez de Ercilla, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 January 2010 (Case R 1114/208-4) relating to opposition proceedings between Tempus Vade, SL and Mr. Juan Palacios Serrano.

Operative part of the judgment

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

1.

The action is dismissed.

| 2. | Tempus Vade, SL is ordered to pay the costs. |
| --- | --- |

2.

Tempus Vade, SL is ordered to pay the costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/14 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/14

---

Action brought on 4 April 2011 — COMPLEX v OHIM — Kajometal (KX)

(Case T-206/11)

2011/C 194/22

Language in which the application was lodged: Polish

Parties

Applicant: COMPLEX S.A. (Łódź, Poland) (represented by: R. Rumpel, legal adviser)

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

Other party to the proceedings before the Board of Appeal: Kajometal s.r.o. (Dolny Kubin, Slovakia)

Form of order sought

| — | declare the action to be well founded; |
| --- | --- |

—

declare the action to be well founded;

| — | annul the decision delivered by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 21 January 2011 in Case R 864/2010-2; |
| --- | --- |

—

annul the decision delivered by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 21 January 2011 in Case R 864/2010-2;

| — | replace the contested decision by a decision refusing registration of the mark KX, No 61225405; |
| --- | --- |

—

replace the contested decision by a decision refusing registration of the mark KX, No 61225405;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kajometal s.r.o.

Community trade mark concerned: word mark KX for goods in Class 7

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

Mark or sign cited in opposition: Community word mark CX, No 3 588 241, registered for goods in Class 7, Community figurative mark CX PRECISION BEARINGS, No 397 932 , registered for goods in Class 7

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of Article 8(1)(b) of Regulation No 207/2009, (1) in that there is a likelihood of confusion as between the conflicting marks.

---

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

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/15 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/15

---

Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE)

(Case T-207/11)

2011/C 194/23

Language in which the application was lodged: German

Parties

Applicant: EyeSense AG (Basel, Switzerland) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal: Osypka Medical GmbH (Berlin, Germany)

Form of order sought

| — | Annul the order of the Fourth Board of Appeal of OHIM of 4 February 2011 in Appeal R 1098/2010-4; |
| --- | --- |

—

Annul the order of the Fourth Board of Appeal of OHIM of 4 February 2011 in Appeal R 1098/2010-4;

| — | Order the defendant to pay the costs, including the costs of the appeal proceedings before OHIM. |
| --- | --- |

—

Order the defendant to pay the costs, including the costs of the appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Osypka Medical.

Community trade mark concerned: Word mark ‘ISENSE’ for goods and services in Classes 9, 10 and 42 — Registration No 7 165 327.

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

Mark or sign cited in opposition: National word mark ‘EyeSense’ for goods and services in Classes 10 and 42.

Decision of the Opposition Division: Rejection of the opposition.

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

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

---

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

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/15 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/15

---

Action brought on 18 April 2011 — Progust v OHIM — Sopralex & Vosmarques (IMPERIA)

(Case T-216/11)

2011/C 194/24

Language in which the application was lodged: Spanish

Parties

Applicant: Progust, SL (Girona, Spain) (represented by: M. E. López Camba and J.L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sopralex & Vosmarques SA (Brussels, Belgium)

Form of order sought

The applicant requests the Court to:

| — | annul the decision of the First Board of Appeal in Case R 1036/2010-1 in its entirety; |
| --- | --- |

—

annul the decision of the First Board of Appeal in Case R 1036/2010-1 in its entirety;

| — | order OHIM to pay the costs incurred by Progust, SL; |
| --- | --- |

—

order OHIM to pay the costs incurred by Progust, SL;

| — | order Sopralex & Vosmarques SA to pay the costs incurred by Progust, SL. |
| --- | --- |

—

order Sopralex & Vosmarques SA to pay the costs incurred by Progust, SL.

Pleas in law and main arguments

Applicant for a Community trade mark: Progust, SL.

Community trade mark concerned: Figurative mark containing the word element ‘IMPERIA’ (application for registration No 7.008.154), for goods and services in Classes 29, 30, 31, 32 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: Sopralex & Vosmarques SA.

Mark or sign cited in opposition: Community figurative mark (No 3.260.288), containing the word element ‘IMPERIAL’ for goods in Class 29.

Decision of the Opposition Division: Opposition upheld and application for registration refused.

Decision of the Board of Appeal: Appeal dismissed.

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

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/16 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/16

---

Action brought on 15 April 2011 — Otero González v OHIM — Apli-Agipa (AGIPA)

(Case T-219/11)

2011/C 194/25

Language in which the application was lodged: Spanish

Parties

Applicant: José Luis Otero González (Barcelona, Spain) (represented by: S. Correa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apli-Agipa SAS (Dormans, France)

Form of order sought

The applicant requests the Court to:

| — | annul the resolution of the Second Board of Appeal of 14 February 2011 in Case R 0556/2010-2, in relation to the partial granting of the application for the following goods: ‘photographs, adhesives (glues) for stationery or household purposes, paint brushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging (not included in other classes), printers’ type, printing blocks’. |
| --- | --- |

—

annul the resolution of the Second Board of Appeal of 14 February 2011 in Case R 0556/2010-2, in relation to the partial granting of the application for the following goods: ‘photographs, adhesives (glues) for stationery or household purposes, paint brushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging (not included in other classes), printers’ type, printing blocks’.

| — | refuse Community trade mark application No 5 676 721‘AGIPA’ in respect of all the goods granted in Class 16; |
| --- | --- |

—

refuse Community trade mark application No 5 676 721‘AGIPA’ in respect of all the goods granted in Class 16;

| — | 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: APLI-AGIPA S.A.S.

Community trade mark concerned: Word mark ‘AGIPA’ (registration application No 5 676 721) for goods in Class 16.

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

Mark or sign cited in opposition: Spanish word mark ‘AGIPA’ (No 2 216 879) and Spanish figurative mark that contains the word element ‘a — agipa’ (No 1 269 511), both for goods in Class 16.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal upheld in part.

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

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/16 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/16

---

Action brought on 18 April 2011 — TeamBank v OHIM — Fercredit Servizi Finanziari (f@ir Credit)

(Case T-220/11)

2011/C 194/26

Language in which the application was lodged: German

Parties

Applicant: TeamBank AG Nürnberg (Nuremberg, Germany) (represented by: T. Kiphuth, H. Lindner and D. Terheggen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Fercredit Servizi Finanziari SpA (Rome, Italy)

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 3 February 2011 in Appeal R 719/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2011 in Appeal R 719/2010-1;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘f@ir Credit’ for services in Class 36 (Registration No 6 947 766).

Proprietor of the mark or sign cited in the opposition proceedings: Fercredit Servizi Finanziari SpA.

Mark or sign cited in opposition: Figurative mark ‘FERCREDIT’ for goods and services in Classes 6, 7, 12, 14, 16, 18, 25, 35, 36, 39, 41, 42, 43 and 44 (Community trade mark Nr 3 749 801), the opposition being brought against the registration of services in Class 36.

Decision of the Opposition Division: Opposition upheld.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is no likelihood of confusion between the opposing marks.

---

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

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/17 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/17

---

Action brought on 20 April 2011 — Siemens v Commission

(Case T-223/11)

2011/C 194/27

Language of the case: English

Parties

Applicant: Siemens AG (Munich, Germany) (represented by: J. Risse, R. Harbst and H. Haller, lawyers)

Defendant: European Atomic Energy Community, represented by the European Commission

Form of order sought

| — | Order the defendant to pay to the applicant an amount of EUR 16 114 147 plus interest at a rate of 8 percentage points above the German base rate since 20 April 2011; and |
| --- | --- |

—

Order the defendant to pay to the applicant an amount of EUR 16 114 147 plus interest at a rate of 8 percentage points above the German base rate since 20 April 2011; and

| — | Order the defendant to reimburse the applicant, on a full indemnity basis, for attorneys’ fees and other expenses incurred due to the present proceedings. |
| --- | --- |

—

Order the defendant to reimburse the applicant, on a full indemnity basis, for attorneys’ fees and other expenses incurred due to the present proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that under the contract concluded with the defendant, the applicant is entitled to claim cost compensation for the additional costs incurred. |
| --- | --- |

1.

First plea in law, alleging that under the contract concluded with the defendant, the applicant is entitled to claim cost compensation for the additional costs incurred.

| 2. | Second plea in law, alleging, in the alternative, that such cost compensation should be paid under German law, applicable to the contract, more specifically under Section 313 of the German Civil Code (BGB). |
| --- | --- |

2.

Second plea in law, alleging, in the alternative, that such cost compensation should be paid under German law, applicable to the contract, more specifically under Section 313 of the German Civil Code (BGB).

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/17 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/17

---

Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

(Case T-224/11)

2011/C 194/28

Language in which the application was lodged: German

Parties

Applicant(s): Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

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 10 February 2011 in Case R 1494/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 February 2011 in Case R 1494/2010-1;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Word mark ‘BERG’ for goods in Classes 25 and 28 (Application No 7 115 009).

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35 (Community trade mark No 3 383 676), the opposition being directed against registration for goods in Classes 25 and 28.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question.

---

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

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/18 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/18

---

Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

(Case T-225/11)

2011/C 194/29

Language in which the application was lodged: German

Parties

Applicant(s): Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

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 10 February 2011 in Case R 740/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 February 2011 in Case R 740/2010-1;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Figurative mark ‘BERG’ for goods in Classes 25 and 28 (Application No 7 124 084).

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35 (Community trade mark No 3 383 676), the opposition being directed against registration for goods in Classes 25 and 28.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question.

---

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

---

| 2.7.2011 | EN | Official Journal of the European Union | C 194/18 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/18

---

Action brought on 26 April 2011 — Wall v OHIM — Bluepod Media Worldwide (bluepod media)

(Case T-227/11)

2011/C 194/30

Language in which the application was lodged: English

Parties

Applicant: Wall AG (Berlin, Germany) (represented by: A. Nordemann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bluepod Media Worldwide Ltd (London, United Kingdom)

Form of order sought

| — | Partially annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 February 2011 in case R 301/2010-1; and |
| --- | --- |

—

Partially annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 February 2011 in case R 301/2010-1; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘bluepod media’, for goods and services in classes 9, 35, 38 and 41 — Community trade mark application No 6099709

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

Mark or sign cited in opposition: Community trade mark registration No 5660972 for the figurative mark ‘blue spot’, for services in classes 35, 36, 37 and 38; International trade mark registration No 880800 for the word mark ‘BlueSpot’, for services in classes 35, 37 and 38; German trade mark registration No 30472373 for the word mark ‘BlueSpot’, for services in classes 35, 37 and 38

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Partially allowed the appeal and partially rejected the application. Correspondingly, allowed the application in the remainder and partially rejected the opposition.

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was no likelihood of confusion.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/19 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/19

---

Action brought on 4 May 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

(Case T-232/11)

2011/C 194/31

Language of the case: English

Parties

Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

| — | Declare the Commission’s Decision of 1 March 2011 (Ares(2011)223668) contrary to Regulation No 1367/2006/EC (1); |
| --- | --- |

—

Declare the Commission’s Decision of 1 March 2011 (Ares(2011)223668) contrary to Regulation No 1367/2006/EC (1);

| — | Annul the Commission’s Decision of 1 March 2011 (Ares(2011)223668); |
| --- | --- |

—

Annul the Commission’s Decision of 1 March 2011 (Ares(2011)223668);

| — | Instruct the Commission to assess the substance of the request for internal review of 20 December 2010, within a period of time determined by the Court; |
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Instruct the Commission to assess the substance of the request for internal review of 20 December 2010, within a period of time determined by the Court;

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

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Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

| 1. | First plea in law, alleging that the defendant was under an obligation to carry out the internal review of Directive 2010/77/EU (2), as requested by the applicants, on the ground that the said directive is not of general application, as the defendant stated, but rather an act containing concrete and individual decisions based on individual applications of the producers concerned. |
| --- | --- |

1.

First plea in law, alleging that the defendant was under an obligation to carry out the internal review of Directive 2010/77/EU (2), as requested by the applicants, on the ground that the said directive is not of general application, as the defendant stated, but rather an act containing concrete and individual decisions based on individual applications of the producers concerned.

| 2. | Second plea in law, alleging that the contested decision is contrary to Regulation No 1367/2006/EC as Directive 2010/77/EU contains several administrative acts concerning individual decisions on individual applications. In addition, since the said directive has not been adopted in Commission’s legislative capacity, access to justice concerning such directive should be guaranteed. |
| --- | --- |

2.

Second plea in law, alleging that the contested decision is contrary to Regulation No 1367/2006/EC as Directive 2010/77/EU contains several administrative acts concerning individual decisions on individual applications. In addition, since the said directive has not been adopted in Commission’s legislative capacity, access to justice concerning such directive should be guaranteed.

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

(2)  Commission Directive 2010/77/EU of 10 November 2010 amending Council Directive 91/414/EEC as regards the expiry dates for inclusion in Annex I of certain active substances (OJ 2010 L 293, p. 48)

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/19 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/19

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Action brought on 26 April 2011 — Glaxo Group v OHIM — Farmodiética (ADVANCE)

(Case T-243/11)

2011/C 194/32

Language in which the application was lodged: English

Parties

Applicant: Glaxo Group Ltd (Greenford, United Kingdom) (represented by: O. Benito, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Farmodiética — Cosmética, Dietética e Produtos Farmacêuticos, Lda (Estarda de S.Marcos, Portugal)

Form of order sought

| — | Stay the proceedings until an invalidity action in Portugal is decided since this invalidity action is challenging the only basis upon which the CTM No 6472971 was rejected, and if this invalidity action is not successful; |
| --- | --- |

—

Stay the proceedings until an invalidity action in Portugal is decided since this invalidity action is challenging the only basis upon which the CTM No 6472971 was rejected, and if this invalidity action is not successful;

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2011 in case R 665/2010-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2011 in case R 665/2010-4; and

| — | Order the defendant and/or the other party to the proceedings before the Board of Appeal to bear the costs. |
| --- | --- |

—

Order the defendant and/or the other party to the proceedings before the Board of Appeal to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ADVANCE’, for goods in class 5 — Community trade mark application No 6472971

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

Mark or sign cited in opposition: Portuguese trade mark registration No 417744 for the figurative mark ‘ADVANCIS CAPS MORE BIOAVAILABLE. MORE EFFECTIVE’, for goods in classes 3 and 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 65(2) of Council Regulation No 207/2009, as the Board of Appeal: (i) deemed that the applicant did not challenge the opposition division’s decision of 25 February 2010 as regards the similarity of the goods concerned, (ii) deemed that there was no reason to depart from the opposition division’s decision of 25 February 2010 as regards the similarity of the goods concerned, (iii) did not analyse whether the goods concerned in class 3 are similar or dissimilar to the goods concerned in class 5, (iv) did not explain why it was relevant to take into account how the signs are pronounced in English when the relevant territory is Portugal, (v) deemed that the conflicting marks are similar from an aural point of view in English, (vi) applied the incorrect tests as regards comparison of the signs, thus wrongly finding the level of similarity to be average, and (vii) applied incorrect and incomplete tests in assessing global likelihood of confusion.

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| 2.7.2011 | EN | Official Journal of the European Union | C 194/20 |
| --- | --- | --- | --- |

2.7.2011

EN

Official Journal of the European Union

C 194/20

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Action brought on 6 May 2011 — ClientEarth and International Chemical Secretariat v ECHA

(Case T-245/11)

2011/C 194/33

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom) and The International Chemical Secretariat (Gothenburg, Sweden) (represented by: P. Kirch, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

| — | Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters; |
| --- | --- |

—

Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

| — | Declare the defendant in violation of Regulation (EC) No 1367/2006 (1); |
| --- | --- |

—

Declare the defendant in violation of Regulation (EC) No 1367/2006 (1);

| — | Declare the defendant in violation of Regulation (EC) No 1049/2001 (2); |
| --- | --- |

—

Declare the defendant in violation of Regulation (EC) No 1049/2001 (2);

| — | Annul the decision set out in the defendant’s confirmatory reply of 4 March 2011 to withhold the requested documents; and |
| --- | --- |

—

Annul the decision set out in the defendant’s confirmatory reply of 4 March 2011 to withhold the requested documents; and

| — | Order the defendant to pay the applicants’ costs, including the costs of any intervening party. |
| --- | --- |

—

Order the defendant to pay the applicants’ costs, including the costs of any intervening party.

Pleas in law and main arguments

By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the decision set out in the defendant’s confirmatory reply of 4 March 2011 not to grant access to documents containing the names and contact details of the registrants (manufacturers/importers) of and important number of alleged dangerous substances for human health and the environment and the tonnage in which they are placed on the EU market.

In support of the action, the applicants rely on five pleas in law.

| 1. | First plea in law, alleging that the contested decision violates Article 8(2) of Regulation No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not having a justification for not doing so. |
| --- | --- |

1.

First plea in law, alleging that the contested decision violates Article 8(2) of Regulation No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not having a justification for not doing so.

| 2. | Second plea in law, alleging that the contested decision violates Article 4(4) and Article 4(6) of Regulation No 1049/2001 for not consulting the registrants in order to assess whether a commercial interest in non disclosure exists and not providing sufficient grounds to prove that it was clear that the documents did not have to be disclosed. |
| --- | --- |

2.

Second plea in law, alleging that the contested decision violates Article 4(4) and Article 4(6) of Regulation No 1049/2001 for not consulting the registrants in order to assess whether a commercial interest in non disclosure exists and not providing sufficient grounds to prove that it was clear that the documents did not have to be disclosed.

| 3. | Third plea in law, alleging that the contested decision violates Article 4(1) (2) (3) and (4) of the Aarhus Convention for failure to provide the applicants access to the requested information. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. |
| --- | --- |

3.

Third plea in law, alleging that the contested decision violates Article 4(1) (2) (3) and (4) of the Aarhus Convention for failure to provide the applicants access to the requested information. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

| 4. | Fourth plea in law, alleging that the contested decision violates Article 4(3) first subparagraph of Regulation No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine ECHA’s internal decision-making process, as well as Article 4(2) first indent of the same act for failing to demonstrate the existence of a commercial interest justifying non-disclosure. |
| --- | --- |

4.

Fourth plea in law, alleging that the contested decision violates Article 4(3) first subparagraph of Regulation No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine ECHA’s internal decision-making process, as well as Article 4(2) first indent of the same act for failing to demonstrate the existence of a commercial interest justifying non-disclosure.

| 5. | Fifth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph and Article 4(2) first subparagraph of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal. |
| --- | --- |

5.

Fifth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph and Article 4(2) first subparagraph of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal.

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

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

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