Case C-191/06: Reference for a preliminary ruling from the Tribunale di Lecce — Sezione distaccata di Gallipoli — lodged on  14 April 2006  — Criminal proceedings against Aniello Gallo and Gianluca Damonte
Date: 2006-07-15
Institutions: Court of Justice
Subjects: Court of Justice of the European Union, EU law - national law, application of the law, decision, freedom to provide services, frontier worker, interpretation of the law, penalty, right of establishment

C 165/14

EN

Official Journal of the European Union

15.7.2006

— annul all the other decisions taken by the defendant under
that call for tenders following the decision of 12 October
2005 and,
the award decisions and the
contracts concluded by the Commission implementing
those decisions;

in particular,

— order the defendant to pay all the costs at first instance and

on appeal.

Pleas in law and main arguments

The appellants base their appeal on breach of Community law
by, and on procedural irregularities before, the Court of First
Instance. The appellants submit that the Court of First Instance
disregarded the principle of legal certainty,
its obligation to
state reasons and the principle of sound administration and
distorted the evidence.

Reference for a preliminary ruling from the Tribunale di
Lecce — Sezione distaccata di Gallipoli — lodged on
14 April 2006 — Criminal proceedings against Aniello
Gallo and Gianluca Damonte

Appeal brought on 24 April 2006 by Société des Produits
Nestlé SA against the judgment of the Court of First
Instance (First Chamber) delivered on 22 February 2006 in
Case T-74/04 Société des Produits Nestlé SA v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM), intervener: Quick restaurants SA

(Case C-193/06 P)

(2006/C 165/25)

Language of the case: French

Parties

Appellant: Société des Produits Nestlé SA (represented by: D.
Masson, lawyer)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) and Quick
restaurants SA

(Case C-191/06)

(2006/C 165/24)

Language of the case: Italian

Form of order sought

— Set aside the CFI judgment of the Court of First Instance of

22 February 2006; and

— Order OHIM to pay the costs in their entirety

Referring court

Tribunale di Lecce — Sezione distaccata di Gallipoli

Pleas in law and main arguments

Parties to the main proceedings

Aniello Gallo and Gianluca Damonte

Question referred

Is Article 4(4 bis) of Law No 401/89 incompatible — with
resultant effects on the domestic legal system — with the prin-
ciples laid down in Articles 43 and 49 of the EC Treaty on
establishment and freedom to provide cross-border services,
also in light of the conflict between the interpretations in the
decisions of the European Court of Justice (in particular in the
judgment in Case C-243/01 Gambelli and Others [2003] ECR I-
13031) and decision No 23271/04 of the Suprema Corte di
Cassazione a Sezioni Unite (United Chambers of the Supreme
Court of Cassation)? In particular, clarification is sought as to
the applicability of the criminal provisions set out in the charge
brought against Aniello GALLO and Gianluca DAMONTE in
the Italian State.

According to the applicant the Court of First Instance made an
error of law in that it failed to assess the trade mark in question
in its entirety and in concreto, whereas the trade mark in ques-
tion is composed of a particularly distinctive character and its
name, the figurative and verbal elements of that complex trade
mark cannot be separated in this instance.

The Court of Instance also disregarded the provisions of Article
8(1)(b) of Council Regulation (EC) No 40/94 of 10 December
1993 on the Community trade mark (1) by failing to take
account, when assessing the likelihood of confusion, of all the
relevant elements in question, as regards both the trade mark
sought by the applicant and the word mark of the intervener.

Finally, by examining only some of the rights invoked by the
intervener in its opposition, the Court of First Instance disre-
garded the rules applicable to trade mark oppositions.

(1) OJ 1994 L 11 p. 1