ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 233/2

Appeal brought on 5 June 2013 by Società Italiana Calzature SpA against the judgment of the General Court (Third Chamber) delivered on 9 April 2013 in Case T-336/11 Società Italiana Calzature SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-308/13 P)

2013/C 233/03

Language of the case: Italian

Parties

Appellant: Società Italiana Calzature SpA (represented by: A. Rapisardi and C. Ginevra, avvocati)

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

Form of order sought

— Set aside judgment No 564397 delivered by the General Court of the European Union in Cases T-336/11 on 9 April 2013 and notified on that date and grant the claims made by Società Italiana Calzature SpA (‘SIC’) in the proceedings at first instance by annulling the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case R 0634/20 10-2 and, in accordance with the decision of the Opposition Division of 5 March 2010 on opposition No B 1 350 711, declare that Community trade mark VICINI No 6513386 is to be refused registration on the ground of lack of novelty, as it is similar to such a degree that it may be confused with the earlier word sign ‘ZANOTTI’, which is registered in the European Union under No 244 277 and in Italy under No 452 869, SIC being the proprietor of both registrations;

— order OHIM to pay all the costs of both sets of proceedings;

— order VICINI SpA to reimburse SIC in respect of all the costs relating to the proceedings before the Opposition Division and the Board of Appeal.

Pleas in law and main arguments

The decision of the General Court is vitiated by inadequate and contradictory reasoning. The fact that the graphic element is visually dominant when compared with the word element of the mark applied for and that the words ‘Giuseppe’ and ‘Design’ have been added to the term ‘ZANOTTI’ are not sufficient to rule out the possibility of a likelihood of confusion between the marks at issue, in view of the intrinsic qualities of the elements in question, in particular their lack of distinctive character.

The General Court erred in finding that the word ‘ZANOTTI’, which is the word element of the mark applied for, does not have an independent distinctive role, thus also ruling out in this respect a likelihood of confusion between the marks at issue.
1.

In the case of rules of procedural law under which the ordinary courts called upon to decide on the substance of cases are also required to examine whether legislation is unconstitutional but are not empowered to repeal legislation generally, this being reserved for a specially organised constitutional court, does the ‘principle of equivalence’ in the implementation of European Union law mean that, where legislation infringes Article 47 of the Charter of Fundamental Rights of the European Union (‘the CFR’), the ordinary courts are also required, in the course of the proceedings, to request the constitutional court to set aside the legislation generally, and cannot simply refrain from applying that legislation in the particular case concerned?
EN Official Journal of the European Union C 252/21

Action brought on 20 June 2013 — European Commission v Italian Republic

(Case C-339/13)

2013/C 252/34

Language of the procedure: Italian

Parties

Applicant: European Commission (represented by: D. Bianchi and B. Schima, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that the Italian Republic has failed to fulfil its obligations under Articles 3 and 5(2) of Directive 1999/74/EC; (1)

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Article 5 of Directive 1999/74/EC expired on 10 January 2012.

(1) Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens (OJ L 203, 3.8.1999, p. 53).
—

The Republic of Bulgaria has failed to comply with the requirements of Article 2(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, according to which the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria. The Republic of Bulgaria applied criteria for the participation in tenders for the assignment of radio frequencies for digital terrestrial broadcasting which were not proportionate to the purposes pursued; by establishing criteria for the assignment of radio frequencies for digital terrestrial broadcasting which were disproportionate and thus by precluding a number of undertakings from taking part in those tenders, the Republic of Bulgaria failed to comply with its obligation under Article 2(2) of the Competition Directive to ensure that any undertaking is entitled to provide electronic communications services.
4.

Does the concept of ‘establishment’, as an essential Community law concept for the purposes of defining ‘collective redundancies’ in the context of Article 1(1) of Directive 98/59, and in view of the nature of the directive of a minimum standard as provided in Article 5 thereof, lend itself to an interpretation that allows the national provision implementing or transposing that text into the national legal order, Article 51(1) of the Workers’ Statute in the case of Spain, to relate the ambit of the calculation of the numerical threshold exclusively to the ‘undertaking’ as a whole, thereby excluding situations in which, had the ‘establishment’ been taken as the reference unit, the numerical threshold laid down in that article would have been exceeded?
EN Official Journal of the European Union C 260/21

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 June 2013 — Novo Nordisk Pharma GmbH v Corinna Silber

(Case C-310/13)

2013/C 260/37

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Defendant and appellant on a point of law: Novo Nordisk Pharma GmbH

Claimant and respondent in the appeal on a point of law: Corinna Silber

Question referred

Must Article 13 of Directive 85/374/EEC (1) be interpreted as meaning that, as a ‘special liability system’, the German system of liability for pharmaceutical products is in general not affected by that directive, with the result that the national system of liability for pharmaceutical products may be further developed, or must that provision be interpreted as meaning that no extension is permitted to the situations covered by the liability system for pharmaceutical products existing at the point in time at which the directive was notified (30 July 1985)?

(1) Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).
EN Official Journal of the European Union C 260/21

Request for a preliminary ruling from the Finanzgericht München (Germany) lodged on 29 May 2013 — Data I/O GmbH v Hauptzollamt München

(Case C-297/13)

2013/C 260/36

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Data I/O GmbH

Defendant: Hauptzollamt München

Question referred

Is note 2(a) to Section XVI (1) to be interpreted as meaning that goods that fulfil the conditions both for classification as a part within the meaning of heading 8473 of the Combined Nomenclature (CN) and for classification as individual goods under another heading of Chapter 84 of the CN or a heading of Chapter 85 of the CN are to be classified under the other heading because heading 8473 of the CN does not take precedence over the other headings of Chapter 84 and the headings of Chapter 85 of the CN?

(1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1); in the versions as amended by Commission Regulations (EC) Nos 2031/2001 of 6 August 2001 (OJ 2001 L 279, p. 1), 1832/2002 of 1 August 2002 (OJ 2002 L 290, p. 1), 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1) and 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1).
EN Official Journal of the European Union C 260/28

Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 27 June 2013 — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others

(Case C-360/13)

2013/C 260/50

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Public Relations Consultants Association Ltd

Defendant: The Newspaper Licensing Agency Ltd and others

Questions referred

In circumstances where:

(i) an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;

(ii) copies of that web-page are automatically made on screen and in the internet ‘cache’ on the end-user’s hard disk;

(iii) the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;

(iv) the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;

(v) the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and

(vi) the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;

Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC (1)?

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

OJ L 167, p. 10
EN Official Journal of the European Union C 274/10

Appeal brought on 11 July 2013 by the Council of the European Union against the judgment of the General Court (Second Chamber) delivered on 30 April 2013 in Case T-304/11 Alumina d.o.o. v Council and Commission

(Case C-393/13 P)

2013/C 274/17

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: J.-P. Hix, Agent, and G. Berrisch, Rechtsanwalt)

Other parties to the proceedings: Alumina d.o.o., European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— dismiss the action;

— order the applicant at first instance to pay the costs relating to the appeal and to the proceedings before the General Court

Grounds of appeal and main arguments

The Council relies on a sole ground of appeal against the judgment of 30 April 2013 in Case T-304/11, by which the General Court annulled Council Implementing Regulation (EU) No 464/2011 of 11 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of zeolite A powder originating in Bosnia and Herzegovina. (1)

The Council submits that the General Court misinterpreted the concept of ‘sales carried out in the ordinary course of trade’ as used in Article 2(1) and (6) of the Basic Regulation. (2) Specifically, the Council argues that sales may take place ‘in the ordinary course of trade’ even if the seller has increased its sale price by incorporating in that price a premium to cover the risk of non-payment or of late payment.

According to the Council, the contrary interpretation adopted by the General Court is, in addition, incompatible with the principle of legal certainty.

(1) OJ 2011 L 125, p. 1.

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).
1B.

If Question 1A must be answered in the affirmative: does European Union law preclude the granting of study finance for a period shorter than the duration of the education or training for which study finance was granted, it being assumed that the other requirements governing eligibility for study finance have been satisfied? If, in answering Questions 1A and 1B, the Court of Justice should conclude that the legislation governing the right of freedom of movement for workers does not preclude a decision not to grant Ms Martens any study finance during the period from November 2008 to June 2011 or for part of that period:
1.

Where there has been a prorogation of the jurisdiction of a court of a Member State in relation to matters of parental responsibility pursuant to Article 12(3) of the Council Regulation (1), does that prorogation of jurisdiction only continue until there has been a final judgment in those proceedings or does it continue even after the making of a final judgment?
EN Official Journal of the European Union C 313/13

Appeal brought on 27 August 2013 by Repsol, SA against the judgment of the General Court (Seventh Chamber) delivered on 27 June 2013 in Case T-89/12 Repsol YPF v OHIM — Ajuntament de Roses ®

(Case C-466/13 P)

2013/C 313/23

Language of the case: Spanish

Parties

Appellant: Repsol, SA (represented by: L. Montoya Terán and J. Devaureix, abogados)

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

Form of order sought

The appellant claims that the Court of Justice should:

— set aside in its entirety the judgment of the General Court of 27 June 2013 in Case T-89/12, notified on 28 June 2013;

— uphold all of the forms of order sought at first instance;

— order the respondent to pay the costs.

Ground of appeal and main arguments

1. In relation to a certain practice of OHIM in registering marks and of the case-law of the General Court, corrective action is required which applies in an effective manner the reciprocal relationship between the distinctive character of an earlier mark and its scope of protection.

2. In the judgment under appeal, the General Court contradicted itself in its reasoning and the conclusions which it reached in relation to the lack of similarity between the signs (it considered that they have more differences than similarities, though recognised that they are similar) and the weak or lack of distinctiveness of the earlier mark (it considered that it was a weak mark, but failed to take account of that weakness when assessing whether there was a likelihood of confusion).

3. The General Court ignored the fact that the essential and distinctive characteristics of the opposing mark (capital letter ‘R’ inside a circle) cannot be monopolised by any third party. Consequently, the requirement that usual signs be made available on the market has not been respected.

4. The General Court failed to take account of judgments of the Spanish Supreme Court in similar cases. Account should be taken of those cases since they adopt the point of view of the relevant consumer, namely the Spanish consumer.
EN Official Journal of the European Union C 304/6

Appeal brought on 5 August 2013 by Elitaliana SpA against the order of the General Court (Seventh Chamber) delivered on 4 June 2013 in Case T-213/12, Elitaliana v Eulex Kosovo

(Case C-439/13 P)

2013/C 304/11

Language of the procedure: Italian

Parties

Appellant: Elitaliana SpA (represented by: R. Colagrande, avvocato)

Other party to the procedure: Eulex Kosovo

Form of order sought

— Set aside in its entirety the order [of the General Court (Seventh Chamber) of 4 June 2013 in Case T-213/12 Elitaliana v Eulex Kosovo;]

— Consequently, if the state of the proceedings so permits, issue a final decision upholding the application at first instance seeking (a) the annulment of the measures adopted by Eulex — the content and date of which are unknown to the applicant — which resulted in the award of the contract in the tendering procedure ‘EuropeAid/131516/D/SER/XK — Helicopter Support to the EULEX mission in Kosovo (PROC/272/11)’ to Starlite Aviation Operations, notified by Eulex by letter of 29 March 2012, and all preliminary, consequential and connected measures, in particular, if necessary, Note 2012-DAS-0392 of 17 April 2012, by which Eulex refused to grant the applicant access to the tendering documents requested on 2 April 2012; (b) an order directing Eulex to make good the loss suffered by applicant (by ordering specific performance or payment of a commensurate amount in compensation) as set out at paragraphs 37 et seq. of the application made to the General Court; (c) an order directing Eulex to pay the costs;

— In the alternative, as a result of such annulment, if the state of the proceedings so permits, refer the case back to the General Court for judgment.

Pleas in law and main arguments

The General Court erred in law by failing to find that Eulex is a body of the European Union for the purposes of Article 263 TFEU and by equating Eulex to the delegations. Further, the General Court should have recognised the existence of an excusable error on the substance.

Those errors of law resulted in an infringement of the principle of effective judicial protection which is essential to ensure the full protection of the rights of the defence and, by corollary, the more general principle of equality.
1.

Must Article 56 of Directive 2004/17/EC (1) be interpreted as meaning that it is not permissible for the national legislature to allow contracting authorities to prevent competitors, during the final bid phase, from viewing their rankings or the bids made by other economic operators, and to postpone disclosure of that information until the end of the auction?
EN Official Journal of the European Union C 325/10

Request for a preliminary ruling from the Juzgado Contencioso-Administrativo de Oviedo lodged on 23 July 2013 — Mario Vital Pérez v Ayuntamiento de Oviedo

(Case C-416/13)

2013/C 325/16

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo de Oviedo

Parties to the main proceedings

Applicant: Mario Vital Pérez

Defendant: Ayuntamiento de Oviedo

Question referred

Do Articles 2(2), 4(1) and 6(1)(c) of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (2) and Article 21(1) of the Charter of Fundamental Rights of the European Union, inasmuch as they prohibit all discrimination on grounds of age, preclude the fixing, in a notice of competition issued by a municipality expressly applying a regional law of a Member State, of a maximum age of 30 for access to the post of local police officer?

(1) OJ 2000 L 303, p. 16.

(2) OJ 2000 L 364, p. 1.
2.

If Question 1 is answered in the affirmative: (a) Is a Commission decision which contains no express instruction as to apportionment among joint and several debtors to be interpreted as meaning that the fine is to be paid in equal shares by all of the joint and several debtors? (b) If Question 2(a) is answered in the negative: Can the courts of the Member States close the gap in the decision that ensues if the Commission does not rule on the apportionment of the fine among joint and several debtors, without any need for a supplementary decision by the Commission?
EN Official Journal of the European Union C 336/10

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 September 2013 — Adala Bero

(Case C-473/13)

2013/C 336/20

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant: Adala Bero

Authority involved: Regierungspräsidium Kassel

Question referred

Does Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (1) also require a Member State to carry out detentions for the purpose of removal as a rule in specialised detention facilities when such facilities exist in only one part of the federal subdivisions of that Member State but not in others?

(1) OJ 2008 L 348, p. 98.
EN Official Journal of the European Union C 352/7

Appeal brought on 13 September 2013 by Cytochroma Development, Inc. against the judgment of the General Court (Third Chamber) delivered on 3 July 2013 in Case T-106/12: Cytochroma Development, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-490/13 P)

2013/C 352/13

Language of the case: English

Parties

Appellant: Cytochroma Development, Inc. (represented by: S. Malynicz, Barrister, A. Smith, Solicitor)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Teva Pharmaceutical Industries, Ltd.

Form of order sought

The appellant claims that the Court should:

— annul the judgment of the General Court dated 3 July 2013 in Case T-106/12;

— order OHIM to bear its own costs and pay those of the appellant

Pleas in law and main arguments

The appellant submits that the contested judgment should be annulled on the following grounds:

— The General Court infringed Article 65(6) of the Community Trade Mark Regulation (1) and Article 1 (d) (1) of Regulation 216/96 (2) regarding the measures taken by OHIM to comply with the judgment of the General Court;

— The General Court infringed the principle of legal certainty, as well as Article 17 of the EU Charter of Fundamental Rights.

(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 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs)

OJ L 28, p. 11