ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 295/24

Reference for a preliminary ruling from the Tribunale di Tivoli (Italy) lodged on 3 August 2012 — Enrico Petillo, Carlo Petillo v Unipol

(Case C-371/12)

2012/C 295/44

Language of the case: Italian

Referring court

Tribunale di Tivoli

Parties to the main proceedings

Applicants: Enrico Petillo, Carlo Petillo

Defendant: Unipol

Question referred

In the light of Directives 72/166/EEC, (1) 84/5/EEC, (2) 90/232/EEC (3) and 2009/103/EC (4) governing compulsory insurance against civil liability arising from the use of motor vehicles, is it permissible for the domestic legislation of a Member State effectively to provide — by imposing, solely in the case of damage arising from road traffic accidents, a compulsory method for quantifying the damage — a limitation (in terms of quantification) of the liability for non-material damage lying with the persons (insurance companies) obliged under those directives to ensure compulsory insurance for damage caused by the use of vehicles?

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

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

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

(4) Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).
EN Official Journal of the European Union C 311/4

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 30 July 2012 — Consorzio Stabile Libor Lavori Pubblici v Comune di Milano

(Case C-358/12)

2012/C 311/04

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Consorzio Stabile Libor Lavori Pubblici

Defendant: Comune di Milano

Question referred

Do the principle of proportionality which arises from the right of establishment and the principles of non-discrimination and protection of competition laid down in Articles 49, 56 and 101 TFEU, and the principle of reasonableness enshrined therein, preclude national legislation which, in relation to contracts both above and below the Community threshold, classifies as serious an infringement relating to contribution obligations which has been definitively established, where the amount thereof exceeds EUR 100,00 and is at the same time greater than 5 % of the difference between the sums owed and those paid in respect of each payment or contribution period, with the consequent obligation on the contracting authority to exclude from the tender process any competitor who has committed such an infringement, without assessing other aspects which objectively demonstrate the competitor’s reliability as a contractual partner?
EN Official Journal of the European Union C 355/9

Appeal brought on 22 August 2012 by Fruit of the Loom, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 21 June 2012 in Case T-514/10: Fruit of the Loom, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-392/12 P)

2012/C 355/14

Language of the case: English

Parties

Appellant: Fruit of the Loom, Inc. (represented by: S. Malynicz, Barrister, V. Marsland, Solicitor)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant seeks the following Order:

— The judgment of the General Court in Case T-514/10 dated 21 June 2012 shall be annulled.

— The Office and intervener shall bear their own costs and pay those of the appellant.

Pleas in law and main arguments

The General Court failed to appreciate that under Article 15(l)(a) CTMR (1) there were in effect three stages to the inquiry. First, it is necessary to consider the distinctive character of the mark as registered. Secondly it is necessary to consider the distinctive character of the marks as used. Thirdly it is necessary to consider whether the distinctive character of the mark as registered is altered. Had the General Court properly applied this approach to the evidence it would have realised that the evidence of use satisfied Article 15(1)(a) CTMR.

The General Court imposed an erroneous rule of interpretation of Community trade marks whereby if consumers within a Member State do not understand a word element of a trade mark (either because it is an obscure word in another Community Language or because it is not similar to a word in their own language) that element is nonetheless to be regarded as being of equal distinctiveness to a word element that they do understand and which is itself distinctive.

The General Court failed to consider or apply by analogy the Court's case law concerning use in the context of acquired distinctive character under Article 7 CTMR which is to the effect that the distinctive character of a mark may be acquired in consequence of the use of that mark as part of or in conjunction with a registered trade nark in accordance with Case C-353/03 Société des Produits Nestlé S.A. v Mars UK Limited [2005] ECR I-06135.

The General Court distorted the facts concerning the appellant's use of the word FRUIT in its informal dealings with customers. Contrary to the General Court's finding, such use was not purely internal and did amount to genuine use of the mark.

The General Court distorted the facts concerning the appellant's use of the mark FRUIT as part of its website at www.fruit.com. Contrary to the General Court's finding, such use was in order to promote goods and was genuine.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 303/19

Appeal brought on 7 August 2012 by Arav Holding Srl against the judgment of the General Court (Second Chamber) delivered on 19 June 2012 in Case T-557/10 H.Eich v OHIM — Arav (H.EICH)

(Case C-379/12 P)

2012/C 303/33

Language of the case: Italian

Parties

Appellant: Arav Holding Srl (represented by: R. Bocchini, avvocato)

Other parties to the proceedings: H.Eich Srl, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

Set aside in full the judgment of 19 June 2012 of the General Court of the European Union and, accordingly, uphold the decision of the First Board of Appeal of OHIM delivered on 9 September 2010, on the ground that the latter fully complied with and applied the rules laid down in the Community trade mark regulation (‘CTMR’), (1) in particular Article 8(1)(b) thereof.

Pleas in law and main arguments

By its appeal, Arav Holding Srl challenges the judgment of the General Court in question in two respects.

First, it complains that the General Court failed to recognise the graphic, phonetic and conceptual similarity between, on the one hand, the Italian national figurative mark ‘H SILVIAN HEACH’ and the international figurative mark ‘H SILVIAN HEACH’ and, on the other, the mark ‘H.EICH’. The General Court failed to identify correctly the essential core of the mark, namely the surname and not the first name. In addition, the General Court failed to take into account the limited significance of the use of a point, which is extremely small in relation to the letters, and failed to take into consideration that the earlier trade mark is a ‘strong’ mark.

Second, Arav Holding Srl submits that the General Court erred in finding that there was no overall likelihood of confusion between the marks resulting from their similarity and the similar uses made of them.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
Appeal brought on 7 September 2012 by medi GmbH & Co. KG against the judgment of the General Court (Sixth Chamber) delivered on 12 July 2012 in Case T-470/09 medi GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-410/12 P)

(2012/C 331/26)

Language of the case: German

Parties

Appellant: medi GmbH & Co. KG (represented by: D. Terheggen, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— Set aside in full the judgment of the General Court under appeal (Case T-470/09; judgment of 12 July 2012);

— grant in full the form of order sought at first instance in accordance with the application submitted to the General Court of the European Union and the amendments in the oral hearing on 2 May 2012 as recorded in the minutes.

Pleas in law and main arguments

The present appeal is brought against the judgment of the General Court of 12 July 2012 in Case T-470/09, by which the General Court dismissed the action brought by medi GmbH & Co. KG against the decision of 1 October 2009 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Case R 692/2008-4) concerning the registration of the word sign ‘medi’ as a Community trade mark.

The appellant relies in essence on the following ground of appeal.

The General Court is said to have erred in law in its application of Article 7(1)(b) of the Community trade mark regulation (1) in that it proceeded on the assumption that the word sign ‘medi’ does not have the requisite minimum degree of distinctiveness for a Community trade mark. That is incorrect, as that word sign is not a conventional abbreviation of the word ‘medicine’ for the relevant average English-speaking consumer.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
Appeal brought on 28 August 2012 by Transports Schiocchet — Excursions against the order of the General Court (Seventh Chamber) delivered on 18 June 2012 in Case T-203/11 Schiocchet v Council and Commission

(Case C-397/12 P)

(2012/C 331/22)

Language of the case: French

Parties

Appellant: Transports Schiocchet — Excursions (represented by: E. Deshoulières, avocat)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

— Set aside in its entirety the order of inadmissibility of the General Court of the European Union of 18 June 2012 in Case T-203/11;

— Uphold the claims made by the applicant at first instance, namely: — order the Council of the European Union and the European Commission jointly and severally to compensate SARL Transports Schiocchet — Excursions for the loss which it has suffered, which amounts to EUR 8 372 483; — rule that the sums thus awarded are to bear interest at the statutory rate to run from notification of the preliminary claim for compensation to the European Commission;

— Order the Council of the European Union and the European Commission to pay the costs incurred by the applicant, on the basis of Article 69 of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

The applicant raises four complaints against the order of the General Court, by which the General Court dismissed as manifestly unfounded in law its application for compensation for the loss allegedly suffered.

Firstly, the applicant submits that the General Court ruled on the gravity of the wrongful act of the organs of the European Union when a mere infringement of a higher rule of law by an institution of the European Union would suffice to constitute a wrongful act by an institution of the European Union and that the General Court, when examining the admissibility of the application, may rule only on the manifest absence of wrongful act and not on the gravity thereof.

Secondly, the applicant argues that the General Court did not deal with all of the applicant’s arguments. In particular, the General Court did not draw the appropriate conclusions from the fact that Regulation No 684/92 (1) did not provide for any penalty against the Member States which do not comply with the authorisation procedure which it institutes.

Thirdly, the applicant disputes the decision of the General Court in that the General Court considered that the applicant’s right to an effective remedy was indeed safeguarded in the context of the system introduced by Regulation No 684/92.

Lastly, the applicant claims that, in its decision, the General Court failed to have regard to the Commission’s liability by accepting its wrongful failures to act. In the opinion of the applicant, the Commission neither drafted the follow-up report required under Regulation No 684/92 nor took into consideration the situation of economic operators in infringement of Article 94 TFEU.

(1) Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1).
EN Official Journal of the European Union C 355/12

Appeal brought on 24 September 2012 by Leifheit AG against the judgment of the General Court (Sixth Chamber) delivered on 12 July 2012 in Case T-334/10 Leifheit AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-432/12 P)

2012/C 355/21

Language of the case: German

Parties

Appellant: Leifheit AG (represented by: V. Töbelmann and G. Hasselblatt, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vermop Salmon GmbH

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment of the General Court of 12 July 2012 in Case T-334/10;

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 May 2010 in Case R 924/2009-1;

— order OHIM to pay the costs of the proceedings before the Court of Justice, before the General Court and before the Board of Appeal, together with the costs incurred by the appellant; in the event that Vermop Salmon GmbH intervenes in the proceedings before it, the appellant further claims that the Court of Justice should:

— order the intervener to pay its own costs.

Grounds of appeal and main arguments

The judgment of the General Court of 12 July 2012 should be set aside, since the General Court erred in law by misconstruing the scope of the examination to be made by the Board of Appeal in appeal proceedings pursuant to Article 63(1) and Article 64(1) of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

The General Court failed to take account of the principle of functional continuity between the different instances of OHIM and wrongly found that complaints brought expressly can also not relieve the Board of Appeal of its duty to examine in full the findings of fact and law in the contested decision.

The General Court ultimately based its judgment on the finding that the issue of genuine use of the earlier mark was a specific preliminary issue which it was not necessary for the Board of Appeal to examine. In doing so, the General Court wrongly overlooked the fact that the issue of requiring evidence of lawful use forms part of opposition proceedings and, as such, falls within the scope of the examination to be made by the Board of Appeal.

In addition, the General Court infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark by misapplying the general principles for assessing the likelihood of confusion. In particular, in its assessment of the similarity of the signs, the General Court based its findings on the empirical rule that consumers place more emphasis on the beginning of words than on the other parts of marks, without assessing whether that rule was applicable in this case. Furthermore, the General Court did not sufficiently assess the appellant’s claim relating to the similarity of the goods. Moreover, it adopted the findings of the Board of Appeal without first assessing their accuracy.

(1) OJ 2009 L 78, p. 1
EN Official Journal of the European Union C 373/3

Appeal brought on 14 September 2012 by TME SpA — Termomeccanica Ecologia against the order of the General Court (Third Chamber) delivered on 4 July 2012 in Case T-329/11 TME SpA — Termomeccanica Ecologia v Commission

(Case C-418/12 P)

2012/C 373/03

Language of the case: Italian

Parties

Appellant: TME SpA — Termomeccanica Ecologia (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the order of the General Court of 4 July 2012 in Case T-329/11, notified on 9 July 2012, for the reasons set out in the grounds of the application, and accordingly;

— Annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions’ (PRAG);

— order the European Commission to pay damages in the amount of EUR 18 955 106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation for the damage sustained by TME as a result of the breach of Community law on the part of the European Commission itself;

— in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TME, equivalent to EUR 3 791 021, or to pay such greater or lesser amount as may be considered appropriate by the Court;

— in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TME, equal to EUR 73 044,32, or such greater or lesser amount as may be considered appropriate by the Court;

— order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The Commission was required, under Clause 2.4.12 of the PRAG and Volume I, Clause 37, of the offer document, to deliver an ‘opinion’ on the procedure which was challenged by TME. The Commission did not fulfil that obligation.

Moreover, the Commission erred by failing to intervene to remedy the clear breach of Community law and recover the funds granted to the Romanian State in connection with the contract at issue, following the complaint lodged by TME on 10 December 2008.
EN Official Journal of the European Union C 399/12

Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 8 October 2012 — Josune Esteban García

(Case C-451/12)

2012/C 399/20

Language of the case: Spanish

Referring court

Audiencia Provincial de Salamanca

Parties to the main proceedings

Appellant: Josune Esteban García

Question referred

Do Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, in conjunction with Directive 93/13 (1) and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, allow the Audiencia Provincial, as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the court of first instance assigning to a court of the place where the defendant has its address territorial jurisdiction to hear and determine the action for damages based on the defendant’s alleged failure to fulfil its contractual obligations under a contract concluded over the internet?

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)
2.

If the answer to Question 1 is to the effect that Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), is valid, must Article 4(3) of the Regulation, in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(f) of the Privacy Directive, (1) read in conjunction with Article 6(1)(b) of the Privacy Directive, be interpreted to mean that, when the Member States give effect to Regulation No 2252/2004, there should be a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of the document?
EN Official Journal of the European Union C 9/30

Reference for a preliminary ruling from the Gerechtshof’s-Hertogenbosch (Netherlands) lodged on 15 October 2012 — Granton Advertising BV v Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag

(Case C-461/12)

2013/C 9/51

Language of the case: Dutch

Referring court

Gerechtshof’s-Hertogenbosch

Parties to the main proceedings

Applicant: Granton Advertising BV

Defendant: Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag

Questions referred

1. Should the expression ‘other securities’ in Article 13 B(d)[5] of the Sixth Council Directive 77/388/EEG (1) (as of 1 January 2007, Article 135(1)(f) of the Eighth Directive 2006/112/EG, (2) subsequently amended) be interpreted as covering a Granton card, being a transferable card which is used for the (partial) payment for goods and services, and if so, is the issuing and sale of such a card therefore exempt from the levying of turnover tax?

2. If not, should the expression ‘other negotiable instruments’ in Article 13 B(d)(3), of the Sixth Council Directive 77/388/EEG (as of 1 January 2007, Article 135(1)(d) of the Eighth Directive 2006/112/EG, subsequently amended) be interpreted as covering a Granton card, being a transferable card which is used for the (partial) payment for goods and services, and if so, is the issuing and sale of such a card therefore exempt from the levying of turnover tax?

3. If a Granton card is an ‘other security’ or ‘other negotiable instrument’ in the aforementioned sense, is it important for the question of whether the issuing and sale thereof is exempt from the levying of turnover tax that, when that card is used, a levy on (a proportionate part of) the fee paid for it is, for all practical purposes, illusory?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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).

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
(c)

In the case of a claim to an antibody or a class of antibodies, is it sufficient that the antibody or antibodies are defined in terms of their binding characteristics to a target protein, or is it necessary to provide a structural definition for the antibody or antibodies, and if so, how much?