Case C-412/05 P: Appeal brought on  23 November 2005  by Alcon, INC against the judgment of the Court of First Instance (Third Chamber) of  22 September 2005  in Case T-130/03: Alcon, INC v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2006-03-11
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, pharmaceutical industry, trade-mark law

11.3.2006

EN

Official Journal of the European Union

C 60/15

ORDER OF THE COURT

(Fourth Chamber)

of 13 December 2005

in Case C-177/05: Reference for a preliminary ruling from
the Juzgado de lo Social Único de Algeciras in María Cris-
tina Guerrero Pecino v Fondo de Garantía Salarial
(Fogasa) (1)

(Reference for a preliminary ruling — First subparagraph of
Article 104(3) of the Rules of Procedure — Social policy —
Protection of workers in the event of the insolvency of their
employer — Directive 80/987/EEC (amended by Directive
2002/74/EC) — Compensation agreed at the conciliation —
Payment guaranteed by the guarantee institution — Payment
subject to the adoption of a judicial decision)

(2006/C 60/31)

(Language of the case: Spanish)

In Case C-177/05: reference for a preliminary ruling under
Article 234 EC from the Juzgado de lo Social Único de Alge-
ciras (Spain), made by decision of 30 March 2005, received at
the Court on 20 April 2005, in the proceedings between María
Cristina Guerrero Pecino and Fondo de Garantía Salarial
(Fourth Chamber), composed of K.
(Fogasa) — the Court
Colneric
Chamber, N.
of
President
Schiemann,
the
(Rapporteur), and E.
Judges; A. Tizzano, Advocate
Juhász,
General; R. Grass, Registrar, made an order on 13 December
2005, the operative part of which is as follows:

Where, according to the relevant national legislation, compensation
for unfair dismissal awarded by a judgment or administrative decision
must be regarded, under national law, as severance pay on termina-
tion of employment relationships which falls within Article 3(1) of
Council Directive 80/987/EEC of 20 October 1980 on the approxi-
mation of the laws of the Member States relating to the protection of
employees in the event of the insolvency of their employer, as amended
by Directive 2002/74/EC of the European Parliament and of the
Council of 23 September 2002, compensation of the same type,
determined by a judicial conciliation procedure such as that at issue in
the main proceedings, must also be regarded as severance pay within
the meaning of that provision. The national court must leave unap-
plied domestic legislation which infringes the principle of equality by
excluding that compensation from the notion of ‘severance pay’ within
the meaning of that legislation.

(1) OJ C 155 of 25.06.2005.

Appeal brought on 23 November 2005 by Alcon, INC
against the judgment of the Court of First Instance (Third
Chamber) of 22 September 2005 in Case T-130/03: Alcon,
INC v Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case C-412/05 P)

(2006/C 60/32)

(Language of the case: English)

An appeal against the judgment of the Court of First Instance
(Third Chamber) of 22 September 2005 in Case T-130/03:
Alcon, INC v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) was brought before the Court of
Justice of the European Communities on 23 November 2005
by Alcon, INC, Hünenberg (Switzerland) represented by Garrett
Breen, Solicitor, Landwell Solicitors.

The applicant claims that the Court should:

1. annul the contested decision;

2.

if necessary, remit
Instance, and

the case back to the Court of First

3. order Office for Harmonisation in the Internal Market
(Trade Marks and Designs) and /or the intervener to pay the
costs.

Pleas in law and main arguments

The applicant submits that there has been an error of law by
the Court of First Instance and an infringement of Article 43(2)
and (3) of Regulation No 40/94 (1) on the following grounds:

1. The Court of First Instance erred in concluding that the
submission of the Applicant alleging an infringement of
Article 43(2) and (3) of Regulation No 40/94 relating to
compliance with the conditions concerning genuine use of
the earlier mark on the part of the Intervener was inadmis-
sible as being a new plea within the meaning of Article
48(2) of
the Court of First
Instance. The Applicant had always contested the prior use
made by the Intervener of
its mark and the distinction
between the context of the use and the genuineness of the
use is a distinction without a difference. It was not therefore
a new plea.

the Rules of Procedure of

2. If, contrary to the foregoing, it was a new plea, it was justi-
fied as being based on matters of law which came to light
in the course of the procedure, in accordance with the first
paragraph of Article 48(2) of the Rules of Procedure.

C 60/16

EN

Official Journal of the European Union

11.3.2006

3. The Court of First

Instance further erred in law in
concluding that even if the plea were admissible, the Court
of First Instance was confined to reviewing the legality of
the decision of the Board of Appeal of OHIM on the basis
of the factual and legal decision as it was before the Board
of Appeal. The Applicant contends that this is a misapplica-
tion of the legal position and that the Court of First Instance
has
refused to apply its own jurisprudence
concerning genuineness of use.

in effect

Reference for a preliminary ruling from the Court of
Appeal (Civil Division) (England and Wales), by Order of
that court of 23 November 2005 in 1) The International
Transport Workers' Federation 2) The Finnish Seamen's
Union v 1) Viking Line ABP 2) OU Viking Line Eesti

(Case C-438/05)

(2006/C 60/34)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark OJ L 11, 14.01.1994, p. 1-36.

(Language of the case: English)

Reference for a preliminary ruling from the Simvoulio tis
Epikratias by order of that court of 31 August 2005 in
Dionik Anonimi Etairia Emporias I/I, Logismikou & Paro-
khis Ipirision Mikhanografisis (Dionik A.E.) and Ioannis
Mikhail Pikoulas v Epitropi Kefalaiagoras

(Case C-430/05)

(2006/C 60/33)

(Language of the case: Greek)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Simvoulio tis Epikratias
(Council of State, Greece) of 31 August 2005, received at the
Court Registry on 2 December 2005, for a preliminary ruling
in the proceedings between Dionik Anonimi Etairia Emporias I/
I, Logismikou & Parokhis Ipirision Mikhanografisis (Dionik
A.E.) and Ioannis Mikhail Pikoulas and the Epitropi Kefalaia-
goras (Capital Market Commission) on the following question:

In the light of Article 21 of Directive 2001/34/EC of the Euro-
pean Parliament and of the Council on the admission of securi-
ties to official stock exchange listing and on information to be
published on those securities (OJ 2001 L 184, p. 1), can a
national legislature lay down, for cases where the information
recorded in listing particulars proves to be inaccurate or
misleading, administrative penalties imposable not only upon
the persons expressly mentioned in those particulars as respon-
sible but also upon the issuer of the securities being admitted
to listing on a stock exchange and, indiscriminately, upon the
members of its board of directors, regardless of whether the
board members have been identified as responsible in the
abovementioned sense?

Reference has been made to the Court of Justice of the Euro-
pean Communities by Order of the Court of Appeal (Civil Divi-
sion) (England and Wales) of 23 November 2005, received at
the Court Registry on 6 December 2005, for a preliminary
ruling in the proceedings between 1) The International Trans-
port Workers' Federation 2) The Finnish Seamen's Union and
1) Viking Line ABP 2) OU Viking Line Eesti, on the following
questions:

Scope of the free movement provisions

into a

that undertaking to enter

1) Where a trade union or association of trade unions takes
collective action against a private undertaking so as to
collective
require
bargaining agreement with a trade union in a particular
Member State which has the effect of making it pointless
for that undertaking to re-flag a vessel in another Member
State, does that action fall outside the scope of Article 43
of the EC Treaty and/or Regulation 4055/86 (1) by virtue
of the EC's social policy including, inter alia, Title XI of the
EC Treaty and, in particular, by analogy with the Court's
reasoning in Case C-67/96 Albany [1996] ECR I- 5751,
paras 52-64?

Horizontal direct effect

2) Do Article 43 of the EC Treaty and/or Regulation 4055/86
have horizontal direct effect so as to confer rights on a
private undertaking which may be relied on against
another private party and, in particular, a trade union or
association of trade unions in respect of collective action
by that union or association of unions?

Existence of restrictions on free movement

that undertaking to enter

3) Where a trade union or association of trade unions takes
collective action against a private undertaking so as to
require
collective
bargaining agreement with a trade union in a particular
Member State, which has the effect of making it pointless
for that undertaking to re-flag a vessel in another Member
State, does that action constitute a restriction for the
purposes of Article 43 of the EC Treaty and/or Regulation
4055/86?

into a