Case C-50/09: Action brought on 4 February 2009 — Commission of the European Communities v Ireland
Date: 2009-02-04
Institutions: Court of Justice
Subjects: Ireland, action for failure to fulfil an obligation, application of the law, data protection, environmental impact, environmental protection

4.4.2009

EN

Official Journal of the European Union

C 82/19

conditions laying down a minimum content for dry cocoa solids
which is greater than that laid down for the use of names in
which those descriptions do not appear. The Italian legislation
makes the use of the word ‘puro’ subject simply to the presence
of cocoa butter by way of fat and there is no requirement to
comply with the higher minimum content for dry cocoa solids.
That constitutes an infringement of Article 3(5) of the directive
and is misleading for the consumer.

(1) Directive 2000/36/EC of

the
Council of 23 June 2000 relating to cocoa and chocolate products
intended for human consumption (OJ 2000 L 197, p. 19).

the European Parliament and of

(2) Directive 2000/13/EC of

the
Council of 20 March 2000 on the approximation of the laws of the
Member States relating to the labelling, presentation and advertising
of foodstuffs (OJ 2000 L 109, p. 29).

the European Parliament and of

the judgment of

the Court of First

Appeal brought on 2 February 2009 by Lego Juris A/S
against
Instance
(Eighth Chamber) delivered on 12 November 2008 in Case
T-270/06 Lego Juris A/S v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Other
party before the Board of Appeal, intervener before the
Court of First Instance Mega Brands, Inc.

trade mark protection, independently of whether the criteria
of art. 7(1)(e)(ii) CTMR as defined by the Court
in the
Philips/Remington decision (2) are fulfilled or not.

b) applied the wrong criteria in the identification of the essen-
tial characteristics of a three-dimensional trade mark: and

c) applied an incorrect functionality test in that it i) did not
limit its assessment to the essential characteristics of the
trade mark at issues and, ii) did not define the appropriate
criteria for assessing whether a characteristic of a shape is
functional and, in particular, refused to take into account any
potential a lternative designs.

(1) OJ L 11, p. 1.
(2) Case C-299/99 Philips [2002] ECR I-5475.

Action brought on 4 February 2009 — Commission of the
European Communities v Ireland

(Case C-50/09)

(2009/C 82/35)

Language of the case: English

(Case C-48/09 P)

(2009/C 82/34)

Language of the case: English

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: P. Oliver, C. Clyne, J.-B. Laignelot, Agents)

Appellant: Lego Juris A/S (represented by: V. von Bomhard,
Rechtsanwältin, T. Dolde, A. Renck, Rechtsanwälte)

Defendant: Ireland

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Megabrands, Inc.

The applicant claims that the Court should:

Form of order sought

The appellant claim that the Court should:

— set aside the judgment of

the Court of First

Instance,

because it violates Article 71(1)(e)(ii)CTMR (1)

Pleas in law and main arguments

The appellant submits that the contested judgment infringes
art. 7(1)(e)(ii) of the Community Trade Mark Regulation. The
appellant maintains that the Court of First Instance:

— declare that by failing to transpose Article 3 of Council
Directive 85/337/EEC (1) on the assessment of the effects of
certain public and private projects on the environment as
amended;

— declare that by failing to ensure that, where Irish planning
autorities and the Environmental Protection Agency both
have decision-making powers on a project, there will be
complete fulfilment of the requirements of Articles 2, 3
and 4 of that Directive;

— declare that by excluding demolition works from the scope

of its legislation transposing that Directive,

Ireland has failed to fulfil its obligations under that Direc-
tive.

a) interpreted art. 7(1)(e)(ii) CTMR in such a way as to effec-
tively preclude any shape which performs a function from

— order Ireland to pay the costs.

C 82/20

EN

Official Journal of the European Union

4.4.2009

Pleas in law and main arguments

Failure to transpose article 3 of the directive

The Commission submits that Section 173 of the Planning and
Development Regulations 2000, which requires planning autho-
rities to have regard to the environmental
impact statement
(EIS) and information coming from consultees, relates to the
duty under art. 8 of the directive to take into consideration
information gathered pursuant to arts. 5, 6 and 7 of the direc-
tive. In the Commission's view Section 173 does not correspond
to the wider duty under art. 3 of the directive to ensure that an
environmental impact assessment (EIA) identifies, describes and
assesses all the matters referred to in that provision.

As for Articles 94, 108 and 111 and Schedule 6 of the Planning
and Development Regulations 2001, the Commission makes
the following observations. Art. 94 read with Schedule 6.2(b)
sets out the information that an EIS must contain. This is a
reference to the information that the developer must provide
pursuant to art. 5 of the directive; it is therefore to be distin-
guished from the EIA which is the overall assessment process.
Arts. 108 and 111 require planning authorities to consider the
adequacy of an EIS. The Commission considers that these provi-
sions relate to Art. 5 of the directive but are not a substitute for
a transposition of art. 3 of the directive. The information to be
provided by a developer is only one part of an EIA and provi-
sions concerning such information are not a substitute for the
obligation set out in art. 3.

the judgment of

Appeal brought on 3 February 2009 by Barbara Becker
against
Instance
(First Chamber) delivered on 2 December2008 in Case
T-212/07 Harman International Industries, Inc. v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

the Court of First

(Case C-51/09 P)

(2009/C 82/36)

Language of the case: English

Parties

Appellant: Barbara Becker (represented by: P. Baronikians, A.
Hofstetter, Rechtsanwälte)

Other parties to the proceedings: Harman International Industries,
Inc., Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

Failure to require proper coordination between authorities

Form of order sought

Although the Commission has no objection in principle to
multi-stage decision-making or to decision-making responsi-
bility for the same project being divided between different deci-
it does have concerns relating to the precise
sion-makers,
manner
in which duties on different decision-makers are
framed. In the Commission's view Irish legislation contains no
obligation on decision-makers to coordinate with each other
effectively and is, therefore, contrary to articles 2, 3 and 4 of
the directive.

Failure to apply the directive to demolition works

The Commission takes the view that, where the other conditions
set out in the directive are fulfilled, an EIA must be carried out
for demolition works. Ireland purported to exempt nearly all
demolition works by the Planning and Development Regulations
2001 (Schedule 2, part
In the Commission's
submission, this is plainly at variance with the directive.

I, Class 50).

(1) OJ L 175, p. 40.

The appellant claims that the Court should order:

— annulment of § 1 of the Court of First Instance's decision of
2 December 2008 (Case T-212/07), by which the decision of
the First Board of Appeal of 7 March 2007 (Case
R-502/2006-1) was annulled;

— annulment of § 3 of the Court of First Instance's decision of

2 December 2008;

— order that the defendant pays the appellant's costs incurred

in the entire proceedings.

Pleas in law and main arguments

The appellant submits that the Court of First Instance erred in
finding that there was similarity between the trademark ‘Barbara
Becker’ applied for by the appellant and the defendant's mark
‘BECKER’, and therefore misapplied article 8(1)(b) CTMR in
concluding that there was likelihood of confusion.