Case C-40/06: Order of the Court of 9 January 2007 (reference for a preliminary ruling from the Finanzgericht München, Germany) — Juers Pharma Import-Export GmbH v Oberfinanzdirektion Nürnberg (First subparagraph of Article 104(3) of the Rules of Procedure — Common Customs Tariff — Combined Nomenclature — Tariff classification — Capsules containing primarily melatonin — Medicaments)
Date: 2007-03-10
Institutions: Court of Justice
Subjects: Combined Nomenclature, food supplement, interpretation of the law

C 56/12

EN

Official Journal of the European Union

10.3.2007

(2) Orders the Czech Republic to pay the costs.

(1) OJ C 143, 17.6.2006.

Order of the Court (Fifth Chamber) of 11 January 2007
(reference for a preliminary ruling of The Okresní soud v
Českém Krumlově, Czech Republic) — Jan Vorel v Nemoc-
nice Český Krumlov

be physically present at the place of work, but in the course of
which he does no actual work, is not treated as wholly consti-
tuting ‘working time’ within the meaning of the said directives;

— not preventing a Member State from applying legislation on
the remuneration of workers and concerning on-call duties
performed by them at the workplace which makes a distinction
between the treatment of periods in the course of which work is
actually done and those during which no actual work is done,
provided that such a system wholly guarantees the practical
effect of the rights conferred on workers by the said directives in
order
their health and
safety.

to ensure the effective protection of

(Case C-437/05) (1)

(1) OJ C 36, 11.2.2006.

(First subparagraph of Article 104(3) of the Rules of Proce-
dure — Social Policy — Protection of the health and safety of
workers — Directives 93/104/EC and 2003/88/EC —
Concept of ‘working time’ — Periods of inactivity during on-
call duty provided by a doctor at his place of work — Classifi-
cation — Effect on the remuneration of the person concerned)

(2007/C 56/20)

Language of the case: Czech

Order of the Court of 9 January 2007 (reference for a preli-
minary ruling from the Finanzgericht München, Germany)
— Juers Pharma Import-Export GmbH v Oberfinanzdirek-
tion Nürnberg

(Case C-40/06) (1)

Referring court

Okresní soud v Českém Krumlově (Český Krumlov District
Court)

(First subparagraph of Article 104(3) of the Rules of Proce-
dure — Common Customs Tariff — Combined Nomenclature
— Tariff classification — Capsules containing primarily
melatonin — Medicaments)

Parties

Applicant: Jan Vorel

(2007/C 56/21)

Language of the case: German

Defendant: Nemocnice Český Krumlov (Český Krumlov Hospital)

Re:

Referring court

Finanzgericht München

Reference for a preliminary ruling — Okresní Soud v Českém
Krumlově — Interpretation of Articles 2(1) and 18 of Council
Directive 93/104/EC of 23 November 1993 concerning certain
aspects of the organisation of working time (OJ 1993 L 307, p.
18) — Meaning of working time — National
legislation
regarding periods of inactivity during the on-call period of a
doctor at his place of work as not constituting working time

Parties in the main proceedings

Applicant: Juers Pharma Import-Export GmbH

Defendant: Oberfinanzdirektion Nürnberg

Operative part of the order

Re:

1. Directive 93/104/EC of

the Council of 23 November 1993
concerning certain aspects of the organisation of working time, as
amended by Directive 2000/34/EC of the European Parliament
and of the Council of 22 June 2000, and Directive 2003/88/EC
of the European Parliament and of the Council of 4 November
2003, concerning certain aspects of the organisation of working
time should be interpreted as:

— precluding national

legislation under which on-call duty
performed by a doctor under a system where he is expected to

Reference for a preliminary ruling — Finanzgericht München —
Interpretation of Commission Regulation (EC) No 1789/2003
of 11 September 2003 amending Annex I to Council Regulation
(EEC) No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff (OJ 2003 L 281, p. 1) —
Heading 3004 (medicaments) and heading 2106 (food prepara-
tions) of the Combined Nomenclature — Classification of mela-
tonin capsules put up as dietary supplements but which may be
supplied only by pharmacies and on prescription — Twinlab
Melatonin Caps

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’)