Case C-3/09: Reference for a preliminary ruling from the Hof van beroep te Gent (Belgium) lodged on 8 January 2009 — Erotic Center BVBA v Belgian State
Date: 2009-01-08
Institutions: Court of Justice
Subjects: Belgium, audiovisual production, cinema, intellectual property, interpretation of the law, television

4.4.2009

EN

Official Journal of the European Union

C 82/11

— the Court of First Instance, when rejecting the second plea
in law,
infringed Articles 49 and 50 in conjunction with
Article 220 of the Treaty on European Union (Consolidated
Version);

— the Court of First Instance, when rejecting the second plea
in law, did not take into account that OHIM misused their
power.

(1) First Council Directive 89/104/EEC of 21 December 1988 to approx-
imate the laws of the Member States relating to trade marks (OJ L 40,
p. 1).

Appeal brought on 8 January 2009 by Gerasimos
Potamianos against the judgment delivered on 15 October
2008 in Case T-160/04 Potamianos v Commission

(Case C-4/09 P)

(2009/C 82/21)

Language of the case: French

Reference for a preliminary ruling from the Hof van
beroep te Gent (Belgium) lodged on 8 January 2009 —
Erotic Center BVBA v Belgian State

(Case C-3/09)

(2009/C 82/20)

Language of the case: Dutch

Referring court

Hof van beroep te Gent

Parties to the main proceedings

Applicant: Erotic Center BVBA

Defendant: Belgian State

Question referred

Should a cubicle consisting of a lockable space where there is
room for only one person and where this person can watch
films on a television screen for payment, where this person
personally starts the film projection by inserting a coin and has
a choice of different films, and during the time paid for can
continually modify his/her choice of projected films, be regarded
as a ‘cinema’ as referred to in the Sixth Council Directive
No 77/388/EEC (1) of 17 May 1977, Annex H, Category 7
(subsequently: Annex
III, No 7, of Council Directive
2006/112/EC (2) of 28 November 2006)?

(1) Sixth Council Directive 77/388/EEC on the harmonisation of the
laws of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (OJ 1977
L 145, p. 1).

(2) Council Directive 2006/112/EC on the common system of value

added tax (OJ 2006 L 347, p. 1).

Parties

Appellant: Gerasimos Potamianos (represented by: S. Orlandi, A.
Coolen, J.-N.Louis and E. Marchal, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul all the provisions of the judgment of the Court of
First Instance (Seventh Chamber) of 15 October 2008 in
Case T-160/04 Potamianos v Commission, by which the Court
of First Instance dismissed in its entirety the appellant's
action of 26 April 2004 against
the
authority empowered to conclude contracts of employment
(AECE) not to extend his contract as a temporary agent;

the decision of

— annul the decision of the AECE not to renew his contract as

a temporary agent;

— order the defendant to pay the costs at both instances.

Pleas in law and main arguments

By his appeal, the appellant relies on four pleas in support of
his appeal.

In accordance with the first plea, he alleges that the interpreta-
tion of the Court of First Instance that the fact that his contract
as a temporary agent was not renewed is based on reasons
related to the interests of the service is incorrect. The appellant's
hierarchy made a number of requests for his contract to be
extended. On the contrary, objective, relevant and concordant
evidence shows that the sole basis of the decision not to renew
his contract was the application of the rule prohibiting aggrega-
tion of service, which imposes a maximum limit of six years on
the employment of a temporary agent.

By his second plea, the appellant submits that the Court of First
Instance erred in law in that it considered that he had not
submitted an application for the post in question, whereas, in
good time, he had requested that his contract be extended and
reiterated that request on several occasions,
including after
publication of the vacancy notice.