Case C-4/09 P: 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
Date: 2009-01-08
Institutions: Court of Justice
Subjects: European Commission, appeal, recruitment, servant (EU), temporary employment, work contract

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.

C 82/12

EN

Official Journal of the European Union

4.4.2009

By his third plea, the appellant submits that the Court of First
Instance erred in law in that it found that the AECE did not
misuse its powers. The stated aim of employment of temporary
agents was to reduce the number of posts vacant within the
Commission and, in particular, to make up for the shortage of
candidates who had been successful in competitions.

The latter aim was in no way met by the refusal to extend the
appellant's contract following application of the rule prohibiting
aggregation of service, since his post was advertised before any
competition lists were published. Moreover, another temporary
agent was given a long-term contract in that post, while the
contracts of all the other temporary agents employed on a
short-term basis in the same directorate were automatically
extended, without prior advertisement of their posts.

Finally, the principle of equal treatment has been breached since
all the other temporary agents who were in a comparable situa-
tion apart
from their length of service, had their contracts
extended without their posts being advertised, unlike the proce-
dure adopted in the case of the appellant. In that context, the
burden of proof was wrongly reversed in the proceedings before
the Court of First Instance, since it is for the defendant — and
not for the applicant — to prove that rules which it laid down
itself have been followed.

provision of services also where the services are, by
agreement, provided in several Member States?

If the answer to that question is in the affirmative,

Should the provision referred to be interpreted as
meaning that

(b) the place of performance of the obligation that is charac-
teristic of the contract must be determined by reference
to the place where the service provider's centre of busi-
ness is located, which is to be determined by reference to
the amount of time spent and the importance of the
activity;

(c) in the event that it is not possible to determine a centre
of business, an action in respect of all claims founded on
the contract may be brought, at the applicant's choice, in
any place of performance of the service within the Com-
munity?

2. If the answer to the first question is in the negative:

Is
Article 5(1)(a) of Regulation No 44/2001 applicable in the
case of a contract for the provision of services also where the
services are, by agreement, provided in several Member
States?

(1) OJ 2001 L 12, p. 1.

Reference for a preliminary ruling from the Oberlandes-
gericht Wien (Austria)
lodged on 15 January 2009 —
Wood Floor Solutions Andreas Domberger GmbH v Silva
Trade, SA

Action brought on 15 January 2009 — Commission of the
European Communities v Portuguese Republic

(Case C-19/09)

(2009/C 82/22)

Language of the case: German

(Case C-20/09)

(2009/C 82/23)

Language of the case: Portuguese

Referring court

Oberlandesgericht Wien

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and A. Caeiros, Agents)

Parties to the main proceedings

Defendant: Portuguese Republic

Applicant: Wood Floor Solutions Andreas Domberger GmbH

Defendant: Silva Trade, SA

Form of order sought

Questions referred

1.

(a) Is the second indent of Article 5(1)(b) of Council Regu-
lation (EC) No 44/2001 of 22 December 2000 on juris-
diction and the recognition and enforcement of judg-
ments in civil and commercial matters (1)
(‘Regulation
No 44/2001’) applicable in the case of a contract for the

— A declaration that, by providing, in connection with adjust-
ment in accordance with Law No 39-A/2005, preferential
tax treatment for public debt securities issued by the Portu-
guese State alone, the Portuguese Republic has failed to fulfil
its obligations under Article 56 of
the EC Treaty and
Article 40 of the Agreement on the European Economic
Area (EEA);

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