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 Cristina Guerrero Pecino v Fondo de Garantía Salarial (Fogasa) (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)
Date: 2006-03-11
Institutions: Court of Justice
Subjects: approximation of laws, employer, financial solvency, interpretation of the law, labour law, severance pay, staff regulations

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.