ddrg/super_eurlex huggingface dataset:
Appeal brought on 8 August 2012 by Environmental Manufacturing LLP against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-570/10: Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-383/12 P)

(2012/C 331/21)

Language of the case: English

Parties

Appellant: Environmental Manufacturing LLP (represented by: S. Malynicz, Barrister, M. Atkins, Solicitor, K. Shadbolt, Trade Mark Attorney)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Société Elmar Wolf

Form of order sought

The appellant seeks the following order:

1. The judgment of the General Court (Fourth Chamber) in Case T-570/10 dated 22 May 2012 shall be set aside and the Court shall give final judgment in the matter.

2. The Office and intervener shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Following the Court of Justice's judgment in Case C-252/07 Intel Corporation (2008) ECR I-8823, proof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or a serious likelihood that such a change will occur in the future. The General Court erroneously did not require such proof, instead concluding that it is sufficient merely if the earlier mark's ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened because use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark.
2.

Must Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, read in conjunction with Directive 93/13 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, be interpreted as meaning that the court of the place where that association has its address, and not the court of the place where the defendant has its address, is to have territorial jurisdiction to hear and determine an action for an injunction against the use of unfair terms, to protect the collective or general interests of consumers and users, brought by a consumer association with restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?
1.

Does a period in prison following sentence for commission of a criminal offence by a Union citizen break the residence period in the host Member State required for that person to benefit from the highest level of protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC (1) or otherwise preclude the person relying on this level of protection?
EN Official Journal of the European Union C 355/13

Appeal brought on 26 September 2012 by Luigi Marcuccio against the order of the General Court (Second Chamber) delivered on 3 July 2012 in Case T-27/12 Marcuccio v Court of Justice

(Case C-433/12 P)

2012/C 355/22

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, lawyer)

Other party to the proceedings: Court of Justice of the European Union

Form of order sought

— Set aside in its entirety and without any exception the order of the General Court of 3 July 2012 in Case T-27/12;

— order the Court of Justice to pay the costs incurred by the appellant relating to the proceedings at first instance and the appeal proceedings and allow in its entirety and without any exception whatsoever the relief sought in the main body of the application at first instance;

— in the alterntive, refer the case back to the General Court for a fresh decision on the substance.

Pleas in law and main arguments

The order under appeal is clearly defective on account of a total failure to state reasons, unreasonableness, illogicality and distortion of the facts. The General Court erred in classifying certain letters sent by the appellant to the First Advocate General of the Court of Justice as requests for review within the meaning of Article 256(2) TFEU.
EN Official Journal of the European Union C 379/14

Appeal brought on 17 September 2012 by Industrias Alen SA de CV against the judgment of the General Court (Fourth Chamber) delivered on 10 July 2012 in Case T-135/11 Clorox v OHIM — Industrias Alen (Cloralex)

(Case C-422/12 P)

2012/C 379/24

Language of the case: Spanish

Parties

Appellant: Industrias Alen SA de CV (represented by: A. Padial Martinez, abogada)

Other parties to the proceedings: The Clorox Company and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Fourth Chamber) of 10 July 2012 in Case T-135/11;

— uphold the decision adopted on 16 December 2010 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and, consequently, reject the opposition lodged by THE CLOROX COMPANY;

— order THE CLOROX COMPANY, the opponent, to pay the costs.

Pleas in law and main arguments

Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 (1) on the Community trade mark (‘the CTMR’).

— Error of the General Court in the comparison of the signs CLOROX and CLORALEX.

— Error of the General Court in the assessment of the likelihood of confusion.

— Current coexistence in OHIM’s register of the term CLOR in Classes 3 and 5.

— Agreements for co-existence of the marks concluded by the parties in relation to the marks CLOROX/CLORALEX in other countries.

(1) OJ 1994 L 11, p. 1.
EN Official Journal of the European Union C 379/17

Action brought on 9 October 2012 — European Commission v Council of the European Union

(Case C-453/12)

2012/C 379/29

Language of the case: French

Parties

Applicant: European Commission (represented by: J. Currall, D. Martin and J.-P-Keppenne, agents)

Defendant: Council of the European Union

Form of order sought

— Declare that by not adopting the Commission’s proposal for a Council Regulation adjusting, from 1 July 2011, the rate of contribution to the pension scheme of officials and other servants of the European Union, the Council has failed to fulfil its obligations under the Staff Regulations and under the notional fund scheme provided for in those Regulations;

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

Pleas in law and main arguments

By the present action, the applicant claims that the Council infringed Articles 83 and 83a of the Staff Regulations and the provisions contained in Annex XII to the Staff Regulations, by refusing to adopt the Commission’s proposal for a Regulation which proposes to adjust, from 1 July 2011, the rate of contribution to the pension scheme of officials and other servants of the European Union, even though according to the binding wording of those provisions the annual adjustment of that rate is an automatic procedure which leaves the Council with no discretion.

According to the applicant, the refusal of the Council to adopt the Commission’s proposal for a regulation and, accordingly, to lower the rate of contribution by officials, infringes not only Article 83(2) of the Staff Regulations, by requiring the officials to make an excessive contribution, but also Article 83a(1) of the Staff Regulations, by placing at risk the balance of the notional fund scheme which guarantees the pensions of officials and other agents.

Finally, according to the Commission, by laying down the method of calculation of the rate of contribution by officials and servants precisely in Annex XII to the Staff Regulations, the European Union legislature left the Council with no discretion and obliged it to adopt the Commission’s proposals within a reasonable period of time.
2.

In a situation in which multiple products are protected by a basic patent in force, does the Regulation, and in particular Article 3(c), preclude the proprietor of the patent being issued a certificate for each of the products protected?
1.

Is Article 13(1)(g), in fine, of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1) to be interpreted as meaning that it leaves the Member States free to choose whether or not to provide for an exception to the immediate obligation to inform set out in Article 11(1) if this is necessary in order to protect the rights and freedoms of others, or are the Member States subject to restrictions in this matter?
6.

(a) Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers? (b) Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration? (c) Is the answer to questions 6(a) and 6(b) affected 1. if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan; 2. if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan; 3. if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers?
—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to ensure compliance with Commission Directive 2011/18/EU of 1 March 2011 amending Annexes II, V and VI to Directive 2008/57/EC of the European Parliament and of the Council on the interoperability of the rail system within the Community, (1) and in any event by failing to inform the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 2 of that directive;
1.

Does the provision of access (pursuant to Article 79(2) of the Wet GBA [Law on personal data held by local authorities]) constitute compliance with the obligation of communication of the data undergoing processing as referred to in the second indent of Article 12(a) of … Directive [95/46/EC (1)]?
EN Official Journal of the European Union C 26/34

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 November 2012 — CTP v Regione Campania, Provincia di Napoli

(Case C-518/12)

2013/C 26/65

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: CTP — Compagnia Trasporti Pubblici SpA

Defendants: Regione Campania, Provincia di Napoli

Questions referred

Does the right to compensation arise, for the purposes of Article 4 of Regulation No 1191/69, (1) only where, following the submission of an appropriate application, the competent authorities have not terminated the public service obligation which imposes an economic disadvantage on the transport undertaking, or is that provision applicable only in respect of service obligations which are to be terminated and cannot be maintained under the regulation?

(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ 1969 L 156, p. 1).
1.

Is the right of residence conferred upon a ‘worker’ in Article 7 of the Citizenship Directive (1) to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain ‘workers’ for this purpose?
2.

Regardless of whether the answer to (that question) is positive or negative, (must) Directive 93/13 be interpreted as precluding national legislation which prevents a judicial authority hearing mortgage enforcement proceedings of the kind governed by Articles 681 to 695 of the Spanish Ley de Enjuiciamiento Civil 1/2000 from suspending those proceedings in the event that declaratory proceedings are subsequently initiated in which a declaration is sought as to the unfairness of a clause contained in the contract concluded between a supplier or seller and a consumer, the said contract having been relied upon to commence the abovementioned enforcement proceedings(?)
EN Official Journal of the European Union C 26/36

Appeal brought on 21 November 2012 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (Seventh Chamber) delivered on 13 September 2012 in Case T-404/10: National Lottery Commission v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-530/12 P)

2013/C 26/69

Language of the case: English

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, F. Mattina, Agents)

Other party to the proceedings: National Lottery Commission

Form of order sought

The appellant claims that the Court should:

— Annul the Judgment under Appeal,

— Order the National Lottery Commission (Applicant before the General Court) to bear the costs incurred by the Office.

Pleas in law and main arguments

The Office raises three pleas in law, namely (i) the violation of Article 76(1) CTMR (1), (ii) the breach of OHIM’s right to be heard and (iii) the manifest inconsistency and distortion of facts affecting the Judgment under Appeal.

The first plea is divided in two limbs. On the one hand, the General Court infringed Article 76(1) CTMR, as interpreted by the Court of Justice in relation to Article 53(2) CTMR and Rule 37 CTMIR (2) in the Elio Fiorucci Judgment, to the extent that it relied on provisions of national law, namely Article 2704 of the Italian Civil Code, which had not been invoked by the parties and which therefore did not form part of the dispute before the Board. On the other, the General Court infringed Article 76(1) CTMR to the extent that it relied on national jurisprudence, namely the above mentioned ruling No 13912 of 14 June 2007 by the Corte Suprema di Cassazione referred to at paragraph 32 of the Judgment under Appeal, which had not been invoked by the parties and which did not form part of the dispute before the Board.

The second plea concerns the breach of OHIM’s right to be heard, to the extent that the Office was not given the opportunity to comment on procedural and substantive aspects relating to the ruling of the Corte Suprema di Cassazione. Had the Office been given this opportunity, it cannot be excluded that the reasoning and conclusion of the General Court would have been different.

The third plea concerns the manifest inconsistency and the distortion of facts affecting the reasoning and conclusion of the General Court. The Office considers that the General Court misread and distorted the analysis of the Board as well as the National Lottery Commission’s own arguments and failed to appreciate that the Board applied the correct legal standard, under Italian law, in finding that the National Lottery Commission had not adduced proof that the date of the post office stamp affixed to the 1986 Agreement was not conclusive.

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

OJ L 78, p. 1

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

OJ L 303, p. 1
1.

By its judgment in Case T-421/09, the General Court annulled the decision of 4 August 2009 by which the Commission found that the corrective measures proposed by the Hellenic Republic were necessary and proportionate for removing the consequences of the infringement and ensuring compliance with the previous decision of 5 March 2008 (‘the decision of 4 August 2009’ or ‘the contested decision’). The General Court held that the contested decision had to be annulled, basing its assessment solely on the fact that the Commission’s previous decision of 5 March 2008, upon which the contested decision was exclusively founded, had in the meantime been annulled by its judgment in Case T-169/08, also delivered on 20 September 2012.
1.

Is it compatible with Community doctrine on in-house procurements that a public hospital, having dispensed with the procedure provided for by law for concluding the relevant contract, should award to a non-profit organisation, which it is in partnership with, and whose aim is to carry out a public service mission in the area of health with a view to enhancing the effectiveness and efficiency of its partners, a contract for the provision of hospital catering services within its area of competence, thereby transferring to that organisation responsibility for its functions in that area, if, under the provisions of its statutes, partners of that organisation may be, not only entities from the public sector, but also those from the social sector, given that on the date of the award, out of a total of 88 partners, there were 23 non-governmental organisations (IPSS) from the social sector, all of which were non-profit making and included charitable associations?
EN Official Journal of the European Union C 101/8

Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 24 December 2012 — Helm Düngemittel GmbH v Hauptzollamt Krefeld

(Case C-613/12)

2013/C 101/18

Language of the case: German

Requesting court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Helm Düngemittel GmbH

Defendant: Hauptzollamt Krefeld

Question referred

Has the origin of goods not been established in the case where a partial movement certificate for the goods was issued under Article 20 of Protocol 4 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation, as amended by Decision No 1/2006 of the EU-Egypt Association Council of 17 February 2006, (1) although the requirements of that provision were not fulfilled because the goods were not under the control of the issuing customs authorities at the point in time at which the partial movement certificate was issued.

(1) OJ 2006 L 73, p. 1.
EN Official Journal of the European Union C 71/8

Action brought on 20 December 2012 — European Commission v Italian Republic

(Case C-596/12)

2013/C 71/13

Language of the case: Italian

Parties

Applicant: European Commission (represented by: J. Enegren and C. Cattabriga, Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by excluding the category of managers from the scope of the redundancy process laid down in Article 4 of Law No 223/1991, in conjunction with Article 24 of that Law, the Italian Republic has failed to fulfil its obligations under Article 1(1) and (2) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies; (1)

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that, by excluding the category of managers from the scope of the redundancy process (procedura di mobilità) laid down in Article 4 of Law No 223/1991, in conjunction with Article 24 of that Law, the Italian Republic has failed to fulfil its obligations under Article 1(1) and (2) of Directive 98/59/EC.

That directive regulates the procedure for informing and consulting with the workers’ representatives which must be followed by an employer where he is contemplating collective redundancies, as well as the procedure for collective redundancies itself.

Pursuant to Article 1(1) and (2) of the directive, such procedures apply to dismissals effected by an employer for one or more reasons not related to the individual workers concerned, where the number of redundancies is above a certain threshold set by reference to the number of workers in the undertaking. In calculating the number of workers employed by the undertaking and also the number of redundancies effected, all workers are included, regardless of their qualifications or duties, the only exceptions being those with contracts of employment concluded for limited periods of time, public employees and the crews of seagoing vessels.

In implementing Directive 98/59/EC, the Italian legislature excluded from the scope of the information and consultation procedures established by it in the case of collective redundancies the category of managers, which, according to the Italian Civil Code, is included within the concept of a worker. Such an exclusion is not only contrary to the general scope of the directive, but is also wholly unjustified. The category of managers in Italian law is, indeed, very broad and even includes workers not entrusted with particular management powers in the context of the undertaking and defined as managers only in that they possesses a high level of professional qualifications.

(1) OJ 1998 L 225, p. 16.
EN Official Journal of the European Union C 225/55

Appeal brought on 17 September 2012 by Holding kompanija Interspeed a.d. against the judgment delivered on 10 July 2012 in Case T-587/10 Holding kompanija Interspeed a.d. v Commission

(Case C-471/12 P)

2013/C 225/104

Language of the case: Slovene

Parties

Appellant: Holding kompanija Interspeed a.d. (represented by D. Komlensky and P. Komljenovic, odvetnika)

Other party to the proceedings: European Commission

By order of 20 June 2013, the Court (Seventh Chamber) hereby:

1. Dismisses the application for legal aid.

2. Dismisses the appeal.