Case C-448/07 P: Appeal brought on 27 September 2007 by Ayuntamiento de Madrid and Madrid Calle 30, SA against the order of the Court of First Instance (Fourth Chamber) delivered on 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities
Date: 2007-11-24
Institutions: Court of Justice
Subjects: EU statistics, European Commission, European accounting system, Eurostat, action for annulment (EU), data transmission, loss

24.11.2007

EN

Official Journal of the European Union

C 283/23

Reference for a preliminary ruling from the Oberster
Patent- und Markensenat (Austria) lodged on 27 September
2007 — Verein Radetzky-Orden v Bundesvereinigung
Kameradschaft ‘Feldmarschall Radetzky’

(Case C-442/07)

(2007/C 283/40)

Language of the case: German

Referring court

Oberster Patent — und Markensenat

Parties to the main proceedings

Applicant: Verein Radetzky-Orden

Defendant: Bundesvereinigung Kameradschaft
Radetzky’.

‘Feldmarschall

Question referred

Is Article 12(1) of
[First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks] to be construed as meaning that
a trade mark is put to (genuine) use to distinguish goods and
services of one undertaking from those of other undertakings in
the case where a non-profit-making association uses the trade
mark in announcements for events, on business papers and on
advertising material and that trade mark is used by the associa-
tion's members when collecting and distributing donations inas-
much as those members wear badges featuring that trade mark?

Questions referred

that

is to say,

in the light of

1 In the light of Articles 3, 4, 16, 17 and 25 of Council Regu-
lation (EC) No 1346/2000 of 29 May 2000 on insolvency
proceedings (1),
the rules
governing the jurisdiction of the courts of the State in which
insolvency proceedings are opened,
the law applicable to
those proceedings and the conditions governing, and the
effects of recognition of, those proceedings, do the public
administrative authorities of a Member State have the power
to seize funds held in the bank account of an economic
subject following a declaration of
its insolvency made in
another EU Member State (application of the so-called seizure
of assets), thereby contravening the national legal rules of the
Member State which opened such proceedings (Article 4 of
Regulation No 1346/2000), where the conditions for the
application of the provisions of Articles 5 and 10 of that
regulation do not exist?

2 In the light of Article 25(1) et seq. of Council Regulation (EC)
No 1346/2000 of 29 May 2000 on insolvency proceedings,
may the administrative authorities of the Member State in
which secondary insolvency proceedings have not been
opened and which must recognise the insolvency proceedings
pursuant to Article 16 of that regulation refuse, on the basis
of domestic legal rules, to recognise decisions made by the
State of the opening of insolvency proceedings relating to the
conduct and closure of insolvency proceedings pursuant to
Articles 31 to 51 of the Brussels Convention on jurisdiction
and the enforcement of judgments in civil and commercial
matters?

(1) OJ 2000 L 160, p. 1.

Reference for a preliminary ruling from the Sąd Rejonowy
Gdańsk — Północ w Gdańsku (Republic of Poland) lodged
on 27 September 2007 — MG Probud Gdynia Sp. z o.o. v
Hauptzollamt Saarbrücken

(Case C-444/07)

(2007/C 283/41)

Appeal brought on 27 September 2007 by Ayuntamiento
de Madrid and Madrid Calle 30, SA against the order of the
Court of First Instance (Fourth Chamber) delivered on
12 July 2007 in Case T-177/06 Ayuntamiento de Madrid
and Madrid Calle 30, SA v Commission of the European
Communities

(Case C-448/07 P)

(2007/C 283/42)

Language of the case: Polish

Language of the case: Spanish

Referring court

Sąd Rejonowy Gdańsk — Północ w Gdańsku (Poland)

Parties

Parties to the main proceedings

Applicant: MG Probud Gdynia Sp. z o.o., Gdynia

Defendant: Hauptzollamt Saarbrücken

Appellants: Ayuntamiento de Madrid and Madrid Calle 30, SA
(represented by:
J.L. Buendía Sierra and R. González-Gallarza
Granizo, abogados)

Other party to the proceedings: Commission of
Communities

the European

C 283/24

EN

Official Journal of the European Union

24.11.2007

Form of order sought

— annul

the order of

the Court of First

Instance (Fourth
Chamber) of 12 July 2007 in Case T-177/06 Ayuntamiento
de Madrid and Madrid Calle 30, SA v Commission of the
European Communities;

— refer the case back to the Court of First Instance for judg-

ment.

Pleas in law and main arguments

In the order under appeal, the Court of First Instance held inad-
missible the action brought by Ayuntamiento de Madrid and
Madrid Calle 30, SA, which sought the annulment of the classi-
fication by the Commission (Eurostat) of Madrid Calle 30 in the
‘public administration’ sector, in accordance with the ‘European
System of Accounts’
(ESA 95) provided for in Annex A to
Council Regulation (EC) No 2223/96 (1) of 25 June 1996. That
classification was based on accounts published by the Commis-
sion (Eurostat) on 24 April 2006, using the data of 2005 on
the government deficit and government debt for the application
of the Protocol on the excessive deficit procedure annexed to
the EC Treaty.

The appellants consider that the Court of First Instance erred in
holding that the news release 48/2006 did not constitute an
implied decision of
the Commission (Eurostat) with binding
legal effects and consequently was not a legal act against which
an action could be brought.

In support of their appeal, the appellants emphasise the central
role of the Commission (Eurostat) in the final approval of the
figures of government deficit and debt of the Member States,
based not only on the relevant legislation (Article 104 EC, the
Protocol on the excessive deficit procedure and Council Regu-
lation (EC) No 3605/93 (2) of 22 November 1993 on the appli-
cation of
the Protocol on the excessive deficit procedure
annexed to the Treaty establishing the European Community, as
amended by Regulation (EC) No 2103/2005 (3)) but also on the
institutional architecture of the regulatory system.

The appellants consider that in the order under appeal the
Court of First Instance came to an erroneous conclusion by not
accepting that the Commission (Eurostat) is obliged to check
whether the government accounts comply with the accounting
rules of ESA 95 before publishing the data on the government
deficit and debt of the Member States. The appellants add that
the absence of reservations and/or amendments on the part of
the Commission (Eurostat), within the relevant period laid down
in Regulation (EC) No 3605/93, as amended, implies that the
act which has been approved without
reservations and/or
amendments becomes final and is therefore a legal act against
which an action can be brought. The appellants further claim
that the act in question entails legal effects with significant

consequences in various areas, such as for example, under the
excessive deficit procedure or the Structural Funds procedure.

(1) Council Regulation (EC) No 2223/96 of 25 June 1996 on the
European system of national and regional accounts in the Com-
munity (OJ L 310, p. 1).

(2) OJ L 332, p. 7.
(3) Council Regulation (EC) No 2103/2005 of 12 December 2005
amending Regulation (EC) No 3605/93 as regards the quality of
statistical data in the context of
the excessive deficit procedure
(OJ L 337, p. 1).

Action brought on 3 October 2007 — Commission of the
European Communities v Italian Republic

(Case C-449/07)

(2007/C 283/43)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and R. Vidal Puig, acting as Agents)

Defendant: Italian Republic

Forms of order sought

The applicant claims that the Court should:

— declare that, by not adopting (all) the laws, regulations and
administrative provisions necessary to comply with Directive
2004/36/EC (1) of
the
Council of 21 April 2004 on the safety of third-country
aircraft using Community airports, the Italian Republic has
failed to fulfil its obligations under Article 11 of that Direc-
tive;

the European Parliament and of

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for
2004/36/EC into national law expired on 30 April 2006.

the transposition of Directive

(1) OJ 2004 L 143, p. 76.