ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 82/9

Appeal brought on 12 November2008 by Matthias Rath against the order of the Court of First Instance (Seventh Chamber) delivered on 8 September 2008 in Case T-373/06 Matthias Rath v Office for Harmonisation in the Internal Market

(Case C-488/08 P)

(2009/C 82/16)

Language of the case: German

Parties

Appellant: Matthias Rath (represented by: S. Ziegler, C. Kleiner and F. Dehn, Rechtsanwälte)

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

Form of order sought

— set aside the order of the Seventh Chamber of the Court of First Instance of 8 September 2008 in Case T-373/06;

— grant the form of order sought at first instance;

— order OHIM and the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

In its contested order, the Court of First Instance confirmed the decision of the First Board of Appeal, according to which, with regard to food supplements and dietetic substances for non-medical purposes, there is a likelihood of confusion between the word mark ‘EPICAN’ notified by the appellant and the earlier Community word mark ‘EPIGRAN’.

The appellant bases his appeal on an infringement of Article 8(1)(b) of Regulation No 40/94. The Court of First Instance, he claims, based its assessment of the similarity between the goods and signs on factual mistakes. If the Court of First Instance had correctly assessed the facts, it would necessarily have concluded that there was no likelihood of confusion between the opposing signs. This is so, in particular, because, as the Court of First Instance correctly held, consumers accord an increased level of attention to the goods which are the subject of the dispute.
EN Official Journal of the European Union C 69/27

Action brought on 14 January 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-18/09)

(2009/C 69/49)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: K. Simonsson and L. Lozano Palacios, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that, by maintaining in force Ley 48/2003, de 26 noviembre, de regimen económico y de prestación de servicios de los puertos de interés general (Law 48/2003 of 26 November 2003 on the economic rules and supply of services for ports of general interest) and, in particular Article 24(5) and Article 27(1), (2) and (4) thereof, which establish a system of rebates and exemptions for harbour dues, the Kingdom of Spain has failed to fulfil its obligations under Community Law (1) and, in particular, Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries;

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Spanish law provides for a series of exemptions and rebates relating to harbour dues. Those exemptions and rebates depend on the ports of departure or destination of the vessels and have the consequence that more favourable tariffs are applied, first, to traffic between the Spanish archipelagos and Ceuta and Melilla and, second, to traffic between those ports and ports of the European Union and, third, between ports of the European Union. The Commission takes the view that that legislation is discriminatory.

The Kingdom of Spain, which invoked the particular geographic situation of the ports concerned, has not justified either the need for or the proportionality of that measure. Despite having promised to amend the legislation at issue, as far as the Commission is aware, no legislation has been adopted to put an end to the infringement.

(1) OJ L 378, p. 1.
—

Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 11(1) of Commission Directive 2006/86/EC (1) of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/86/EC or, in any event, by not communicating those measures to the Commission.
EN Official Journal of the European Union C 82/11

Reference for a preliminary ruling from the Hof van beroep te Gent (Belgium) lodged on 8 January 2009 — Erotic Center BVBA v Belgian State

(Case C-3/09)

(2009/C 82/20)

Language of the case: Dutch

Referring court

Hof van beroep te Gent

Parties to the main proceedings

Applicant: Erotic Center BVBA

Defendant: Belgian State

Question referred

Should a cubicle consisting of a lockable space where there is room for only one person and where this person can watch films on a television screen for payment, where this person personally starts the film projection by inserting a coin and has a choice of different films, and during the time paid for can continually modify his/her choice of projected films, be regarded as a ‘cinema’ as referred to in the Sixth Council Directive No 77/388/EEC (1) of 17 May 1977, Annex H, Category 7 (subsequently: Annex III, No 7, of Council Directive 2006/112/EC (2) of 28 November 2006)?

(1) Sixth Council Directive 77/388/EEC 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).

(2) Council Directive 2006/112/EC on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 82/20

Appeal brought on 3 February 2009 by Barbara Becker against the judgment of the Court of First Instance (First Chamber) delivered on 2 December2008 in Case T-212/07 Harman International Industries, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-51/09 P)

(2009/C 82/36)

Language of the case: English

Parties

Appellant: Barbara Becker (represented by: P. Baronikians, A. Hofstetter, Rechtsanwälte)

Other parties to the proceedings: Harman International Industries, Inc., Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant claims that the Court should order:

— annulment of § 1 of the Court of First Instance's decision of 2 December 2008 (Case T-212/07), by which the decision of the First Board of Appeal of 7 March 2007 (Case R-502/2006-1) was annulled;

— annulment of § 3 of the Court of First Instance's decision of 2 December 2008;

— order that the defendant pays the appellant's costs incurred in the entire proceedings.

Pleas in law and main arguments

The appellant submits that the Court of First Instance erred in finding that there was similarity between the trademark ‘Barbara Becker’ applied for by the appellant and the defendant's mark ‘BECKER’, and therefore misapplied article 8(1)(b) CTMR in concluding that there was likelihood of confusion.
EN Official Journal of the European Union C 90/8

Appeal brought on 19 January 2009 by ecoblue AG against the judgment of the Court of First Instance (First Chamber) delivered on 12 November 2008 in Case T-281/07: ecoblue AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-23/09 P)

2009/C 90/12

Language of the case: English

Parties

Appellant: ecoblue AG (represented by: C. Osterrieth, T. Schmitz, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Banco Bilbao Vizcaya Argentaria, SA

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of the European Communities of 12 November 2008 in the Case T-281/07;

— to annul the decision of the First Chamber of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 April 2007 (Case R 0844/2006-1) regarding the community trade mark application with the application No. 002871598 ‘Ecoblue’

— order OHIM to pay the costs

Pleas in law and main arguments

The appellant maintains that the Court of First Instance misapplied art. 8(1)(b) of the Community Trade Mark Regulation since the conflicting trademarks do not display the minimum degree of similarity required in order to establish a likelihood of confusion.

It is submitted that the Court of First Instance erred in finding that the distinctiveness of the earlier trademark, which formed the basis of the opposition, constitutes an essential requirement of the likelihood of confusion. The CFI failed to consider that aspect of the dispute and merely compared the two opposing trademarks from a visual, phonetic and conceptual perspective, as if the earlier trademark was a mark which enjoyed an average degree of distinctiveness.

It is also submitted that the CFI did not correctly apply the rule that consumers normally attach more importance to the first part of words. Since both word elements, ‘Eco’ and ‘blue’, are equally descriptive, the consumer automatically puts more emphasis on the first word, ‘Eco’, thereby recognising the distinctiveness of both trademarks.

It is further submitted that the CFI erred in law in failing to treat the conceptual difference between the opposing marks as being of primary importance.
—

The order under appeal is insufficiently reasoned, for the Court of First Instance has not answered the arguments raised by the appellant, in paragraphs 92 and 93 of the original application, to the effect that the fact that the manufacturer had no authorised representative for Community territory, as required by the directive, rendered impossible the conformity assessment procedure carried out by the notified body and, lastly, concerning the Commission’s assertion that it had not been called upon to take part in the safeguard procedure because the Portuguese authority Infarmed had failed to act in accordance with Article 14b of Council Directive 93/42/EC (1) of 14 June 1993 concerning medical devices, as amended by Directive 98/79/EC (2) of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices;
EN Official Journal of the European Union C 90/15

Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2009 — Association of the British Pharmaceutical Industry v Medicines and Healthcare Products Regulatory Agency

(Case C-62/09)

2009/C 90/24

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Association of the British Pharmaceutical Industry

Defendant: Medicines and Healthcare Products Regulatory Agency

Questions referred

Does Article 94(1) of Directive 2001/83/EC (1) preclude a public body forming part of a national public health service, in order to seek to reduce its overall expenditure on medicines, from implementing a scheme which offers financial incentives to medical practices (which may in turn provide a financial benefit to the prescribing doctor) to prescribe a specific named medicine supported by the incentive scheme that is either:

(a) a different prescription medicine to the medicine previously prescribed by thedoctor to the patient; or

(b) a different prescription medicine to that which otherwise might have beenprescribed to the patient but for the incentive scheme,

where such a different prescription medicine is from the same therapeutic class of medicines used for treatment of the patient's particular condition.

(1) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use OJ L 311, p. 67
2.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme under Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment which, in view of the likely effect on sites, requires an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC, (4) in particular when the nitrogen management plan in question applies to all the vulnerable zones designated in the Région wallonne?
EN Official Journal of the European Union C 113/23

Action brought on 2 March 2009 — Commission of the European Communities v French Republic

(Case C-89/09)

2009/C 113/45

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and E. Traversa, Agents)

Defendant: French Republic

Form of order sought

— Declare that, by limiting to a maximum of one-quarter the shares and therefore the voting rights in a Société d’Exercice Libéral à Responsabilité Limitée (limited liability company formed by persons carrying on a professional activity) operating medical laboratories which can be held by persons who are not biologists and by prohibiting holdings of capital in more than two companies established in order jointly to operate one or more medical laboratories, the French Republic has failed to fulfil its obligations under Article 43 of the EC Treaty;

— Order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission submits two pleas in law in support of its action, alleging infringement of Article 43 of the EC Treaty.

By its first plea, the applicant maintains that, by limiting to a maximum of 25% of the authorised capital of Sociétés d’Exercice Libéral à Responsabilité Limitée operating medical laboratories the shares held by shareholders not carrying on a professional activity, the national legislation restricts unduly the freedom of establishment guaranteed by the Treaty. The objective of protection of public health, referred to by the defendant as a justification, could be achieved by measures less restrictive than those at issue in the present case. The Commission claims in that regard that, while it seems justified to require that medical analyses be carried out by competent staff with the appropriate professional qualifications, to require such qualifications for the mere holding of shares in or right to operate medical laboratories seems on the other hand disproportionate with regard to the objective pursued.

By its second plea in law, the Commission criticises the general prohibition on persons not carrying on a professional activity from holding capital in more than two companies established in order jointly to operate one or more medical laboratories. The objective put forward by the defendant of maintaining the decision-making power and the financial independence of the persons carrying out professional activities in the sector and the need to ensure a uniform distribution of the laboratories throughout the national territory do not justify the restrictive national measures.
1.

Should Article 26 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 (1) (‘the Regulation’) be interpreted as not authorising a court to review its international jurisdiction where the defendant partipates in the proceedings, even when the case is subject to the rules on compulsory jurisdiction under Section 3 of the Regulation and the application is brought contrary to those rules?
EN Official Journal of the European Union C 129/2

Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-41/09)

2009/C 129/03

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and W. Roels, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— rule that, by applying a reduced rate of VAT to the supply, importation and intra-Community acquisition of certain live animals, in particular horses, which are not normally intended for the preparation or production of foodstuffs for human or animal consumption, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12 of, in conjunction with Annex H to, the Sixth VAT Directive, (1) and under Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive; (2)

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the Netherlands Wet op de omzetbelasting (Law on turnover tax) breaches the provisions of Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive by applying a reduced rate of VAT to the supply of certain live animals (in particular, horses) even in cases where those animals are not intended for the preparation or production of foodstuffs. More specifically, the Commission is of the opinion that live animals — and, in particular, horses — which are not normally intended for use as foodstuffs do not come under Category 1 of Annex III to the VAT Directive.

According to settled case-law, Category 1 of Annex III to the VAT Directive must, in the same way as any other provision concerning the reduced rates of VAT, be subject to strict interpretation. Furthermore, in the light of the wording of Category 1 of Annex III to the Directive, the reduced rate applies to foodstuffs.

(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).

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 153/21

Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 8 April 2009 — Dr. József Uzonyi. v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-133/09)

2009/C 153/40

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Applicant: Dr. József Uzonyi

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Question referred

Does it follow from the provision contained in Article 143ba(1) of Regulation (EC) 1782/2003 (1) in the version in force until 31 December 2006, under which ‘[payment] shall be granted on the basis of objective and non-discriminatory criteria’, that, as regards eligibility for the separate sugar payment in connection with the single area payment, it was not possible to draw a distinction between farmers on the basis of whether they supplied the sugar beet for processing directly (themselves) or indirectly (via intermediaries)?

(1) Corrigendum to Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001; OJ L 270, 21.10.2003, Special Edition in Hungarian, Chapter 3, Volume 40, p. 269-377.
EN Official Journal of the European Union C 141/22

Appeal brought on 18 March 2009 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 18 December 2008 in Joined Cases T-211/04 and T-215/04: Government of Gibraltar and United Kingdom v Commission of the European Communities

(Case C-106/09 P)

2009/C 141/41

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: R. Lyal, V. Di Bucci, N. Khan, Agents)

Other parties to the proceedings: Government of Gibraltar, United Kingdom of Great Britain and Northern Ireland, Kingdom of Spain

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance (Third Chamber, Extended Composition) of 18 December 2008, notified to the Commission on 5 January 2009, in Joined Cases T-211/04 and T-215/04 Government of Gibraltar and United Kingdom v Commission;

— reject the applications for annulment lodged by the Government of Gibraltar and by the United Kingdom; and

— order the Governemnt of Gibraltar and the United Kingdom to pay the costs; alternatively,

— refer the cases back to the Court of First Instance for reconsideration; and

— reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The Commission maintains that the contested judgment should be set aside on the following grounds:

The Court of First Instance erred in assessing the relationship between Article 87(1) EC and the competence of the Member States in tax matters;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by imposing an unjustified constraint on the assessment of suspected State aid measures;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by imposing an unjustified constraint on the exercise of review powers in respect of the identification of a common or ‘normal’ tax system;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by considering that the common or ‘normal’ tax system may result from the application of different techniques to different taxpayers;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by considering that the Commission had failed to identify the common or ‘normal’ tax regime and to perform the required assessment to show the selective character of the measures at stake;

The Court of First Instance erred in interpreting and applying Article 87(1) EC by failing to examine the three elements of selectivity identified in the contested decision.
—

Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 2(1) of Commission Directive 2007/68/EC (1) of 27 November 2007 amending Annex IIIa to Directive 2000/13/EC (2) of the European Parliament and of the Council as regards certain food ingredients, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/68/EC or, in any event, by failing to communicate them to the Commission;
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with certain provisions of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, or in any event by failing to notify such provisions to the Commission, the Hellenic Republic is in breach of its obligations under the first subparagraph of Article 412(1) of that directive;
3.

If the answer to the second question is in the affirmative, can a difference in situation such as that established between teachers seconded to the European Schools, whose remuneration is funded both by their national authorities and by the European School in which they teach, on the one hand, and officials of the European Community, whose remuneration is funded by the Community alone, on the other hand, justify a situation in which, in the light of the principles laid down in the articles cited above and although the [Service Regulations for staff seconded to the European School] expressly refer to the Staff Regulations of Officials of the European Community, the exchange rates applied in order to maintain an equivalent purchasing power are not the same?