Case C-498/06: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 7 December 2006 — Maira María Robledillo Núñez v Fondo de Garantía Salarial ( FOGASA )
Date: 2007-03-10
Institutions: Court of Justice
Subjects: employer, equal treatment, financial solvency, interpretation of the law, labour law, severance pay, staff regulations

10.3.2007

EN

Official Journal of the European Union

C 56/13

Operative part of the order

The Combined Nomenclature in Annex I to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomencla-
ture and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1789/2003 of 11 September 2003, must be
interpreted as meaning that capsules containing primarily melatonin
such as those in issue in the main proceedings fall under tariff heading
3004.

(1) OJ C 86, 8.4.2006.

Appeal brought on 30 November 2006 by Tesco Stores Ltd
against the judgment of the Court of First Instance (Third
Chamber) delivered on 13 September 2006 in Case T-191/
04: MIP Group Intellectual Property GmbH & Co. KG v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

(Case C-493/06 P)

(2007/C 56/22)

Language of the case: English

Parties

Appellant: Tesco Stores Ltd (represented by: E. Kelly, Solicitor, S.
Malynicz, Barrister)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market, MIP Metro Group Intellectual Property GmbH
& Co. KG

Form of order sought

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of

13 September 2006 in Case T-191/04.

— order the Respondent to pay Tesco's costs of this appeal and

of the appeal before the Court of First Instance.

Pleas in law and main arguments

The appellant maintains that the contested judgment should be
set aside on the grounds that the Court of First Instance has
committed a breach of procedure which adversely affects the
appellant and has infringed Community law. In particular, the
applicant submits that:

1. Article 8 and 42 of

the Community Trade Mark Regu-
lation (1) do not require an opponent to prove any of the
conditions of an opposition beyond the opposition period. A

correct and legally certain interpretation of the provisions
requires an opponent
to demonstrate conditions such as
proprietorship and subsistence of the earlier right once and
once only, that is to say, at the time of the opposition;

2. Rules 15, 16 and 20 of Commission Regulation (EC) No.
2868/95 of 13 December 1995 implementing Regulation
No. 40/94 on the Community Trade Mark (2) did not require
the opponent to substantiate the earlier mark in any way
beyond that already provided and,
in particular, did not
impose any obligation upon it to demonstrate renewal of the
earlier mark beyond the opposition period;

3. There was a legitimate expectation on the part of Tesco that
it was not required to provide further substantiation of its
earlier right beyond that already provided;

4. To impose upon Tesco the obligation to demonstrate
renewal, as of 28 January 2000, 24 February 2000, 13 June
2000 or even 23 October 2000 would be to require Tesco
retrospectively to prove something that, as of those dates, it
was either not able and/or not required to do at the time
under national law;

5. There were breaches of procedure before the Court of First
Instance adversely affecting Tesco in that: (a) OHIM sought
to rely on a version of its Opposition Guidelines that was
not in use at the material time; and (b) OHIM advanced argu-
ments that went beyond the terms of the dispute as delimited
by the parties.

(1) OJ L 11, p. 1.
(2) OJ L 303, p. 1.

Reference for a preliminary ruling from the Juzgado de lo
Social Único de Algeciras (Spain) lodged on 7 December
2006 — Maira María Robledillo Núñez v Fondo de Garantía
Salarial (‘FOGASA’)

(Case C-498/06)

(2007/C 56/23)

Language of the case: Spanish

Referring court

Juzgado de lo Social Único de Algeciras

Parties to the main proceedings

Applicant: Maira María Robledillo Núñez

Defendant: Fondo de Garantía Salarial (‘FOGASA’)

C 56/14

EN

Official Journal of the European Union

10.3.2007

Question referred

Having regard to the general principle of equality and non-
discrimination, is there no objective justification for the differ-
ence in treatment created by Article 33.2 of
the Workers'
Statute and, consequently, must compensation for dismissal
payable to an employee pursuant to extra-judicial conciliation
be included in the ambit of Council Directive 80/987/EEC (1) on
the approximation of the laws of the Member States relating to
the protection of employees in the event of the insolvency of
by Directive
their
2002/74/EC (2) of the European Parliament and of the Council
of 23 September 2002, given that Article 33.1 of the Workers'
Statute recognises this type of conciliation in relation to the
payment by the guarantee institution of the ‘salarios de tramita-
ción’ which also arise from the dismissal?

version amended

employer,

in the

(1) OJ L 283, 1980, p. 23; EE 05/02, p. 219.
(2) OJ L 270, 2002, p. 10.

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria)
lodged on 14 December 2006 —
Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner
OHG

(Case C-506/06)

(2007/C 56/24)

Language of the case: German

Referring court

Oberster Gerichtshof (Austria)

Parties to the main proceedings

Appellant: Sabine Mayr

Respondent: Bäckerei und Konditorei Gerhard Flöckner OHG

Question referred

Is a worker, who undergoes in vitro fertilisation, a ‘pregnant
worker’ within the meaning of the first part of Article 2(a) of
Council Directive 92/85/EEC of 19 October 1992 on the intro-
duction of measures to encourage improvements in the safety
and health at work of pregnant workers and workers who have
recently given birth or are breastfeeding (1)
(tenth individual
Directive within the meaning of Article 16(1) of Directive
89/391/EEC) if, at the time at which she was given notice of
termination of employment, the woman's ova had already been
fertilised with the sperm cells of her partner and ‘in vitro’
embryos thus existed, but they had not yet been implanted
within her?

(1) OJ L 348, 1992, p. 1.

Reference for a preliminary ruling from the Oberlandesger-
icht Innsbruck lodged on 13 December 2006 — Malina
Klöppel v Tiroler Gebietskrankenkasse

(Case C-507/06)

(2007/C 56/25)

Language of the case: German

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Applicant: Malina Klöppel

Defendant: Tiroler Gebietskrankenkasse

Question(s) referred

Must Article 72 of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
employed persons, to self employed persons and to members of
their families moving within the Community (1)
(OJ, English
special edition: Series I Chapter 1971(II) p. 416) in the version
amended and brought up to date by Regulation (EC) No 1386/
2001 of the European Parliament and of the Council of 5 June
2001 (2) (OJ 2001 L 187, p. 1) in conjunction with Article 3 of
that regulation and Article 10a of Regulation (EEC) No 574/72
of the Council of 21 March 1972 fixing the procedure for
implementing Regulation (EEC) No 1408/71 (3)
(OJ, English
special edition: Series I Chapter 1972(I) p. 0159) in the version
amended
by Commission
Regulation (EC) No 410/2002 of 27 February 2002 (4)
(OJ 2002 L 62, p. 17) be interpreted to the effect that periods
of drawing family benefits in one Member State (in this case the
national child-raising allowance in the Federal Republic of
Germany) must be treated equally in relation to the entitlement
to draw a comparable benefit in another Member State (in this
case child-care allowance in Austria) and accordingly must be
characterised as domestic periods of drawing for the purposes
of entitlement in a second Member State if during those periods
of drawing both parents should be regarded as employed
persons under Article 1(a)(i) of Regulation No 1408/71?

brought

date

and

up

to

(1) ABl. L 149, S. 2.
(2) ABl. L 187, S. 11.
(3) ABl. L 74, S. 1.
(4) ABl. L 62, S. 17.