Case C-90/08 P: Appeal brought on 28 February 2008 by K & L Ruppert Stiftung & Co. Handels-KG against the judgment of the Court of First Instance (Second Chamber) delivered on 12 December 2007 in Case T-86/05 K & L Ruppert Stiftung & Co. Handels-KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2007-07-24
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), building industry, footwear industry, trade-mark law

C 142/10

EN

Official Journal of the European Union

7.6.2008

Defendant: Grand Duchy of Luxembourg (represented by: C.
Schiltz, acting as Agent, and P. Kinsch, avocat)

Re:

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 28 EC –National rule making the registration of
second-hand vehicles which have previously been registered in
another Member State subject to the submission of an excerpt
from the entry on the commercial register of the vehicle's seller,
whereas vehicles previously registered in Luxembourg are not
subject to such a requirement — Obstacle to the free movement
of goods — Lack of justification and proportionality

Operative part of the judgment

The Court:

1. Declares that, by requiring, in accordance with the practice in issue,
for the purposes of the registration of vehicles in Luxembourg, the
submission of an excerpt from the commercial register or a compar-
able document proving that the seller of the vehicle is registered as
a dealer, except for the dealers on the register of the Société Natio-
nale de Contrôle Technique, the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 28 EC;

2. orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 211, 8.9.2007.

Order of the Court of 8 April 2008 — Saint-Gobain Glass
Deutschland GmbH v Fels-Werke GmbH, Spenner-Zement
the European
GmbH & Co KG, Commission of

Communities

(Case C-503/07 P) (1)

(Appeal — Directive 2003/87/EC — Scheme for greenhouse
gas emission allowance trading — Integrated pollution preven-
tion and reduction — Federal Republic of Germany — Alloca-
tion of allowances — Period 2008-2012 — Conditions —
Individual concern — Inadmissibility — Right to be heard by
a court — Right to a fair hearing)

(2008/C 142/15)

Language of the case: German

Appeal brought against the Order of the Court of First Instance
(Third Chamber) of 11 September 2007 in Case T-28/07
Fels-Werke and Others v Commission, by which the Court
dismissed as inadmissible the action seeking partial annulment
of the Commission Decision of 29 November 2006 concerning
the national allocation plan for the allocation of greenhouse gas
emission allowances notified by the Federal Republic of
Germany for the period from 2008 to 2012 in accordance with
Directive 2003/87/EC of the European Parliament and of the
Council of 13 October 2003 establishing a scheme for green-
house gas emission allowance trading within the Community
and amending Council Directive 96/61/EC (OJ 2003 L 275,
p. 32) — Requirement to be individually concerned by the
contested decision — Right to be heard by a court and right to
a fair hearing

Operative part of the order

1. The appeal is dismissed.

2. Saint-Gobain Glass Deutschland GmbH is ordered to pay the costs.

(1) OJ C 64, 8.3.2008.

Appeal brought on 28 February 2008 by K & L Ruppert
Stiftung & Co. Handels-KG against the judgment of the
Court of First Instance (Second Chamber) delivered on
12 December 2007 in Case T-86/05 K & L Ruppert Stiftung
& Co. Handels-KG v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case C-90/08 P)

(2008/C 142/16)

Language of the case: German

Parties

Appellant(s): K & L Ruppert Stiftung & Co. Handels-KG (repre-
sented by: D. Spohn, Rechtsanwältin)

Other party/parties to the proceedings: 1. Office for Harmonisation
in the Internal Market (Trade Marks and Designs), 2. Natália
Cristina Lopes de Almeida Cunha, 3. Cláudia Couto Simões,
4. Marly Lima Jatobá

Parties

Form of order sought

Appellant: Saint-Gobain Glass Deutschland GmbH (represented
by: H. Posser and S. Altenschmidt, Rechtsanwälte)

Other parties
Zement GmbH & Co KG, Commission of
Communities (represented by: U. Wölker, Agent)

to the proceedings: Fels-Werke GmbH, Spenner-
the European

the judgment of

— Annulment of the whole of paragraph 1 of the operative
part of
Instance of
12 December 2007 in Case T-86/05 and annulment of para-
graph 2 of the operative part of that judgment so as to
order OHIM to pay all its own costs and all the applicant's
costs;

the Court of First

7.6.2008

EN

Official Journal of the European Union

C 142/11

— An order that OHIM pay the costs of proceedings.

sions of Article 43 of Regulation No 40/94 and the second
sentence of Rule 22(2) of Regulation No 2868/95.

Upholding the claims made at first instance:

— Annulment of the decision of the First Board of Appeal of

OHIM of 7 December 2004, R 0328/2004-1 in full;

— An order that OHIM pay the costs.

Pleas in law and main arguments

The Court of First Instance dismissed the application of the
appellant against the decision of the First Board of Appeal of
OHIM on the ground that the Opposition Division of the Office
correctly applied the second sentence of Rule 71(1) of Regu-
lation No 2868/95 when it refused the appellant's application
for an extension of the period specified for submission of proof
of use of the earlier marks in the opposition proceedings, and
that the Office had no discretion as regards the consideration of
the evidence submitted late by the appellant in the present case.

The appeal alleges the following breaches of Community law by
the Court.

(1) The Court of First

the period specified.

infringed the second
Instance has
sentence of Rule 71(1) of Regulation No 2868/95 by misin-
terpreting that provision. In particular, the Court of First
Instance failed to have regard for the fact that Regulation
No 40/94 contains no rules on possible grounds for an
It also failed to have
extension of
regard for the fact that, at the material time, Rule 71(1) of
Regulation No 2868/95 had not been further defined by
guidelines for oppositions or other instructions from OHIM,
the permissible
so that no possible interpretations of
grounds for extensions of the period were available. The
Court therefore did not consider fully the facts of the case
and/or misinterpreted the second sentence of Rule 71(1).

Reference for a preliminary ruling from the Landgericht
Frankfurt am Main (Germany) lodged on 28 February 2008
— Wall AG v Stadt Frankfurt am Main, Frankfurter
Entsorgungs- und Service GmbH (FES)

(Case C-91/08)

(2008/C 142/17)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Wall AG

Defendants: Stadt Frankfurt am Main, Frankfurter Entsorgungs-
und Service GmbH (FES)

Other party to the proceedings: DSM Deutsche Städte Medien
GmbH

(2) The Court of First Instance also disregarded the duty to state
reasons incumbent on it, as it did not investigate the state-
ment of the appellant that at the time of the application for
an extension there were no legal rules and no basis for inter-
the wording of requests for extensions. As
pretation of
reasons were attached to the request for an extension, the
Court should also have explained the legal basis on which
the reasons stated for the request for an extension are to be
regarded as insufficient.

(3) The Court of First Instance infringed Article 74(2) of Regu-
lation No 40/94 by misinterpreting that provision as
meaning that OHIM had no discretion to take account of
evidence adduced late in the opposition proceedings.
It
failed to have regard to the fact that the Boards of Appeal
have a general discretion which is not excluded by the provi-

Questions referred

1. Are the principle of equal treatment expressed inter alia in
Articles 12 EC, 43 EC and 49 EC and the prohibition in
Community law of discrimination on grounds of nationality
to be interpreted as meaning that the consequent duties of
transparency for public authorities, namely to use an appro-
priate degree of advertising to enable the award of service
concessions to be opened up to competition and the imparti-
ality of the procurement procedure to be reviewed (see the
judgments of
Justice in Case C-324/98
Telaustria, paragraphs 60 to 62; Case C-231/03 Coname, para-
graphs 17 to 22; Case C-458/03 Parking Brixen, paragraphs
46 to 50; Case C-410/04 ANAV, paragraph 21; and
C-260/04 Commission v Italy, paragraph 24), require national
law to provide an unsuccessful tenderer with a claim to an
order restraining an imminent breach of those duties and/or
prohibiting the continuation of such a breach of duty?

the Court of