Case C-100/07 P: Order of the Court of 4 October 2007 — É.R. and Others v Council of the European Union, Commission of the European Communities (Appeal — Non-contractual liability of the Community — Bovine spongiform encephalopathy — Lack of adequate measures taken by the Council and the European Commission to prevent the spread of the disease — Appeal manifestly unfounded)
Date: 2007-12-22
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, bovine spongiform encephalopathy, damages, disease of the nervous system

C 315/24

EN

Official Journal of the European Union

22.12.2007

Order of the Court of 11 October 2007 — Hans Peter
Wilfer v Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case C-301/05 P) (1)

(Appeal — Community
sign
‘ROCKBASS’ — Refusal to register — No need to adjudicate)

trade mark — Word

(2007/C 315/41)

Language of the case: German

Parties

Applicant: Hans Peter Wilfer (represented by: A. Kocklauner,
Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: D.
Schennen, O. Montalto and G. Schneider, Agents)

Re:

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: J. Novais Gonçalves,
acting as Agent) Ferrero Deutschland GmbH, successor in title
Schaeffer,
to
Rechtsanwalt)

Ferrero OHG mbH (represented

by: M.

Re:

Appeal brought against the judgment of
the Court of First
Instance (Third Chamber) of 15 March 2006 in Case T-35/04
Athinaiki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) in which
the Court dismissed an action for annulment brought by the
applicant for the figurative mark ‘FERRÓ’ for goods in Classes
29, 30 and 42 against Decision R 460/2002-1 of the First
Board of Appeal of the Office for Harmonisation in the Internal
Market (OHIM) of 1 December 2003, dismissing the appeal
against the Opposition Division's decision refusing in part to
register that mark in the opposition proceedings filed by the
for goods in
holder of
Classes 5, 29, 30, 32 and 33.

the national word mark ‘FERRERO’

Appeal against the judgment of
the Court of First Instance
(Fourth Chamber) of 8 June 2005 in Case T-315/03 Wilfer v
OHIM by which the Court dismissed the action for annulment
of the decision refusing to register the mark ‘ROCKBASS’ —
Descriptive character of the trade mark

Operative part of the order

1. The appeal is dismissed.

Operative part of the order

2. Athinaiki Oikogeniaki Artopoiia AVEE is ordered to pay the costs.

1. There is no need to adjudicate on the appeal brought by Mr Wilfer.

2. Mr Wilfer is ordered to pay the costs.

(1) OJ C 212, 2.9.2006.

(1) OJ C 281 of 12.11.2005.

Order of the Court (Eighth Chamber) of 11 September
2007 — Athinaiki Oikogeniaki Artopoiia AVEE v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs), Ferrero Deutschland GmbH

(Case C-225/06) (1)

(Appeal — Community trade mark — Regulation (EC)
No 40/94 — Article 8(1)(b) — Similarity between two trade
marks — Likelihood of confusion — Application for a Com-
munity figurative mark featuring the word element ‘FERRÓ’
— Opposition by the proprietor of the national word mark
FERRERO — Partial refusal of registration)

(2007/C 315/42)

Language of the case: English

Order of the Court of 4 October 2007 — É.R. and Others
v Council of the European Union, Commission of the
European Communities

(Case C-100/07 P) (1)

(Appeal — Non-contractual
liability of the Community —
Bovine spongiform encephalopathy — Lack of adequate
measures taken by the Council and the European Commission
to prevent the spread of the disease — Appeal manifestly
unfounded)

(2007/C 315/43)

Language of the case: French

Parties

Applicant: Athinaiki Oikogeniaki Artopoiia AVEE (represented
by: A. Tsavdaridis, dikigoros)

Applicant: É.R., O.O., J.R., A.R., B.P.R., T.D., J.D., D.D., V.D.; D.E.,
É.E., C.R.; H.R., M.S.R., I.R., B.R., M.R. and C.S. (represented by:
F. Honnorat, lawyer)

Parties

22.12.2007

EN

Official Journal of the European Union

C 315/25

Other parties to the proceedings: Council of the European Union
(represented by: F. Florindo Gijón and Z. Kupčová, Agents),
Commission of the European Communities (represented by: T.
van Rijn and G. Berscheid, lawyers)

Questions referred

Re:

Appeal against the judgment of the Court of First Instance (First
Chamber) of 13 December 2006 in Case T-138/03 É.R. and
Others v Council and Commission, by which the Court dismissed
as partially inadmissible and, for the remainder, as unfounded,
the action brought by the applicants seeking compensation
under Article 235 EC and the
second paragraph of
Article 288 EC for the damage allegedly suffered as a conse-
quence of the infection and subsequent death of members of
their families who suffered from a new variant of Creutzfeldt-
Jakob disease, which was linked to the outbreak and spread in
Europe of bovine spongiform encephalopathy, for which the
Council and the Commission were allegedly responsible —
Conditions giving rise to non contractual
the
Communities

liability of

Operative part of the order

1. The appeal is dismissed.

2. É.R., O.O., J.R., A.R., B.P.R., T.D., J.D., D.D., V.D.; D.E., É.E.;
C.R.; H.R., M.S.R., I.R., B.R., M.R.; and C.S are ordered to pay
the costs.

(1) OJ C 129 of 9.6.2007.

Reference for a preliminary ruling from the Hof van
Beroep te Brussel — Belgium lodged on 24 September
2007 — Belgische Staat v KBC Bank NV

(Case C-439/07)

(2007/C 315/44)

Language of the case: Dutch

first

indent,

in particular Article 4(1),

1. Must Council Directive 90/435/EEC (1) of 23 July 1990 on
the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member
States,
thereof, be
construed as precluding a situation in which a Member State
applies the exemption relating to distributed profits received
by a company of that State from its subsidiary in another
Member State, except when the subsidiary is liquidated, by
first including in full the distributed profits in the taxable
basis and then deducting 95 % of those profits from the
taxable basis but limiting the deduction to the amount of
profits made in the taxable period in which the distribution
of profits took place (after certain statutorily defined deduc-
tions)
(Article 205(2) WIB/92 [Belgian Income Tax Code
1992] in conjunction with Article 77 KB/WIB.92 [Royal
Decree implementing the Income Tax Code 1992]), in view
of the fact that the result of such a limitation of the deduc-
tion of distributed profits is that, if the parent company had
no or insufficient taxable profits during the taxable period in
which the distributed profits were received,
it would in a
taxable period be taxed on those distributed
subsequent
profits which it had received, or at least that the losses of
that taxable period would be offset by means of distributed
profits, 95 % of which must remain untaxed pursuant to
Article 4(1), first indent, in conjunction with Article 4(2), of
Directive 90/435 and that consequently those losses, in the
amount of the distributed profits received, could no longer
be carried forward to a subsequent taxable period?

2. If

first indent, of

the aforementioned Directive 90/435/EEC is

to be
construed as meaning that the Belgian rule is contrary to
Article 4(1),
the Directive with regard to
distributed profits received by a Belgian parent company
from a subsidiary established within the EU, must it then be
determined that that provision of the Directive is also incom-
patible with the application of the Belgian rule to distributed
profits received by a Belgian parent company from a Belgian
subsidiary where, as in the present case, the Belgian legisla-
ture,
in transposing the Directive into Belgian law, has
chosen to apply the same treatment to purely internal situa-
tions and to those governed by the Directive and has there-
fore aligned the Belgian legislation with the Directive also for
purely internal situations?

Referring court

Hof van Beroep te Brussel

Parties to the main proceedings

Applicant: Belgische Staat

Defendant: KBC Bank NV

3. If Directive 90/435/EEC must be taken to mean that the
Belgian rule is contrary to Article 4(1), first indent, of the
Directive with regard to distributed profits received by a
Belgian parent company from a subsidiary established in the
EU and the Leur-Bloem judgment of the Court of Justice (Case
C-28/95 Leur-Bloem [1995] ECR I-4161) is extended to cover
distributed profits received from a subsidiary established in
Belgium, is it then contrary to Article 56(1) EC for Belgium
to continue to apply the legislative provision in question,
unchanged, to dividends originating from subsidiaries estab-
lished in non-member countries, on the ground that the
latter dividends are
favourably than
domestic dividends or EU dividends?

then treated less