Case C-38/09 P: Appeal brought on 29 January 2009 by Mr Ralf Schräder against the judgment of the Court of First Instance (Seventh Chamber) delivered on 19 November 2008 in Case T-187/06 Ralf Schräder v Community Plant Variety Office
Date: 2008-11-19
Institutions: Court of Justice
Subjects: Community Plant Variety Office, appeal, crop production, plant propagation, protection of plant life

4.4.2009

EN

Official Journal of the European Union

C 82/17

(b) If

that

the Court considers

the action for annulment
brought by TRANSPORTES EVARISTO MOLINA SA is
time-barred,
that should be
regarded as excusable since the conduct of the Commission
caused confusion on the applicant's part.

the applicant submits that

(1) Commission Decision 2006/446/of 12 April 2006 relating to a
the EC Treaty (Case
to Article 81 of
proceeding pursuant
COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006
L 176, p. 104).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
[EC] and 82 [EC]of the Treaty (OJ 2003 L 1, p. 1).

(3) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the
application of Article 85(3) of the Treaty to categories of exclusive
purchasing agreements (OJ 1983 L 173, p. 5).

(4) Commission Regulation (EC) No 2790/1999 of 22 December 1999
on the application of Article 81(3) of the Treaty to categories of
vertical agreements and concerted practices.

(5) Commission Decision 2006/446/of 12 April 2006 relating to a
proceeding pursuant
the EC Treaty (Case
to Article 81 of
COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006
L 176, p. 104).

Action brought on 28 January 2009 — Commission of the
European Communities v Portuguese Republic

(Case C-37/09)

(2009/C 82/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-B. Laignelot, S. Pardo Quintillán and P. Guerra e
Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration, first, that by not having adopted the measures
necessary to ensure that waste tipped in the dos Limas, dos
Linos and dos Barreiras quarries in the district of Lourosa is
disposed of or recovered without endangering human health
or harming the environment, in particular without creating
the waste is
risks to water or soil, and to ensure that
entrusted to a private or public collection service or to an
undertaking responsible for its disposal or recovery and,
secondly, by not having adopted the measures necessary to
restrict
the introduction into groundwater of substances
included in List II of Directive 80/68/EEC so as to prevent
the pollution of groundwater by those substances, the Portu-
guese Republic has failed to fulfil its obligations under Arti-
cles 4 and 8 of Directive 2006/12/EC on waste, codifying

Directive 75/442/EEC on waste, and under Articles 3 and 5
of Directive 80/68/EEC on the protection of groundwater
against pollution caused by certain dangerous substances;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Starting in the 1980s, waste from various sources began to be
tipped in disused quarries without any supervision by the autho-
rities whatsoever. Discharging of waste into the quarries
continued until February 2004. Only in June 2004 were those
areas closed off.

Analysis of the water at separate points in the old quarry area
disclosed troubling levels of chemical contamination. The water
table in that area is contaminated.

For many years the Portuguese authorities did not take the
measures necessary to prevent holders of unidentified waste
from discharging and abandoning waste in disused quarries.
They did not check the discharge or abandonment of waste in
the quarries or monitor its disposal.

the Portuguese authorities did not

Furthermore,
take the
measures necessary to prevent the introduction into ground-
water of harmful toxic substances. They did not make subject to
prior investigation the tipping of waste capable of leading to the
indirect discharge of noxious substances into groundwater. Nor
did they check the surface discharge of waste.

the judgment of

Appeal brought on 29 January 2009 by Mr Ralf Schräder
against
Instance
(Seventh Chamber) delivered on 19 November 2008 in
Case T-187/06 Ralf Schräder v Community Plant Variety
Office

the Court of First

(Case C-38/09 P)

(2009/C 82/32)

Language of the case: German

Parties

Appellant: Ralf Schräder (represented by: T. Leidereiter and W.-A.
Schmidt, Rechtsanwälte)

Other party to the proceedings: Community Plant Variety Office
(CPVO)

Form of order sought

— Set aside the judgment of

Instance
(Seventh Chamber) of 18 November 2008 in Case
T-187/06;

the Court of First

C 82/18

EN

Official Journal of the European Union

4.4.2009

— Allow the appellant's application for annulment of the deci-
sion of the Board of Appeal of the CPVO of 2 May 2006
(Reference A003/2004) made in the proceedings at first
instance.

With regard to point 2, in the alternative:

— Refer the case back to the Court of First Instance for fresh

judgment.

Action brought on 2 February 2009 — Commission of the
European Communities v Italian Republic

(Case C-47/09)

(2009/C 82/33)

Language of the case: Italian

— Order the CPVO to pay all the costs arising from the present
the proceedings before the Court of First

proceedings,
Instance and the proceedings before the Board of Appeal.

Parties

Pleas in law and main arguments

The object of the present appeal is the judgment of the Court of
First Instance by which the appellant's action against the deci-
sion of the Board of Appeal of the Community Plant Variety
Office concerning the application for Community plant variety
rights in respect of the plant variety SUMCOL 01 was dismissed.
By that judgment which is subject to the present appeal the
Court of First Instance confirmed the decision of the Board of
Appeal, according to which the candidate variety was not clearly
distinguishable from the reference variety, which was to be
regarded as a matter of common knowledge.

The appellant's first ground of appeal refers to a number of
procedural errors. In its review of the decision of the Board of
Appeal the Court of First Instance made findings the incorrect-
ness of which is immediately apparent from the pleadings. In
imposed excessive
addition it distorted facts and evidence,
demands with regard to the applicant's submissions, drew
contradictory conclusions and infringed the appellant's right to
be heard. The Court of First Instance for example ignored large
parts of the appellant's submissions and numerous offers of
evidence made by him, rejecting them by pointing out that the
submissions were too general. The Court of First Instance in so
doing also overlooked the fact that it was in part objectively
impossible for the appellant to be any ‘more specific’
in his
submissions. It thus infringed both the appellant's right to be
heard and the principles governing the burden of proof and
evidence-gathering. Furthermore the Court of First
Instance
unlawfully expanded the subject-matter of the appeal proceed-
ings by basing the judgment which is subject to the present
appeal on reasoning which was not used either by the Office or
by the Board of Appeal.

By its second ground of appeal the appellant argues that the
Court of First Instance infringed Community law when inter-
preting Article 7(2) of Council Regulation (EC) No 2100/94 of
27 July 1994 on Community plant variety rights by regarding
the written description of a variety in the academic literature as
proof that it was a matter of common knowledge. In addition,
the appellant contends that infringements of Article 62 of the
abovementioned Regulation and Article 60 of Regulation (EC)
No 1239/95 establishing implementing rules for the application
of Council Regulation (EC) No 2100/94 as regards proceedings
before the Community Plant Variety Office occurred.

Applicant: Commission of the European Communities (repre-
sented by: F. Clotuche-Duvieusart and M. Nardi, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— Declare that, by making it possible to add the adjective
‘puro’ or the phrase ‘pure chocolate’ to the sales names of
chocolate products which do not contain vegetable fat other
than cocoa butter, the Italian Republic has failed to fulfil its
obligations under Article 3 of Directive 2000/36/EC (1) in
conjunction with Article 2(1)(a) of Directive 2000/13/EC (2)
and Article 3(5) of Directive 2000/36;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The labelling and,
in particular, sales names of chocolate
products have been totally harmonised within the Community,
with the aim of ensuring that the consumer is given accurate
information, by means of the directive on labelling (2000/13)
and the directive on chocolate products (2000/36). Directive
2000/36 provides that products which contain a maximum of
5 % of certain vegetable fats are to be allowed to retain their
sales names unchanged but the labelling of those products must
contain the specific statement, in bold letters, ‘contains vegetable
fats in addition to cocoa butter’.

The Italian legislation at issue, which restricts the addition of
the word ‘puro’ to the sales name of products containing only
cocoa butter by way of fat alters the harmonised definitions
adopted at Community level and undermines them. Given that,
in Italian, the word ‘puro’ means unadulterated, untouched and
therefore genuine, consumers are led to believe that goods
which, while complying with the directive and the conditions
laid down therein relating to sales names, contain vegetable fats
other than cocoa butter and are not pure, that is to say, they are
adulterated, processed and not genuine. That is attributable to
the simple fact that those products contain vegetable fats of a
kind and in an amount which are nevertheless permitted by the
legislation itself without requiring a change in the sales name.

Moreover, the word ‘puro’
is an adjective which qualifies the
noun and its use in sales names is subject to compliance with a
number of conditions. In particular, Article 3(5) of Directive
2000/36 provides that the use of information or descriptions
to compliance with
relating to quality criteria is

subject