19.12.2009

Official Journal of the European Union

C 312/2

Judgment of the Court (Eighth Chamber) of 29 October 2009 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Dinter GmbH v Hauptzollamt Düsseldorf (C-522/07), Europol Frost-Food GmbH v Hauptzollamt Krefeld (C-65/08)

(Joined Cases C-522/07 and C-65/08) (1)

(Common Customs Tariff - Regulation (EEC) No 2658/87 - Combined Nomenclature - Tariff classification - Validity - Additional note - Apple juice concentrate)

2009/C 312/02

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicants: Dinter GmbH (C-522/07), Europol Frost-Food GmbH (C-65/08)

Defendants: Hauptzollamt Düsseldorf (C-522/07), Hauptzollamt Krefeld (C-65/08)

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation and validity of Additional Note 5(b) to Chapter 20 of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Pure concentrated apple juice, with a Brix value of 66.8, not containing added sugar — Classification of that product under tariff subheading 2009 7999 (apple juice not containing added sugar) or under subheading 2106 9098 (food preparations not elsewhere specified or included) — Limits on the Commission’s powers under Article 9 of Council Regulation (EEC) No 2658/87 to specify the content of the tariff headings

Operative part of the judgment

Additional Note 5(b) to Chapter 20 of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulations (EC) No 1776/2001 of 7 September 2001, (EC) No 2031/2001 of 6 August 2001 and (EC) No 1810/2004 of 7 September 2004, amending Annex I to Regulation No 2658/87, is invalid to the extent that it excludes natural apple juice concentrate from heading 2009.

(1) OJ C 37, 9.2.2008

OJ C 107, 26.4.2008

19.12.2009

Official Journal of the European Union

C 312/2

Judgment of the Court (Fourth Chamber) of 29 October 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-536/07) (1)

(Failure of a Member State to fulfil obligations - Public works contracts - Directive 93/37/EEC - Contract between a public body and a private undertaking for the lease to the former of exhibition halls to be built by the latter - Private undertaking to be paid by means of a monthly rent for a period of 30 years)

2009/C 312/03

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: D. Kukovec and R. Sauer, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and J. Möller, acting as Agents, and by H.-J. Prieß, Rechtsanwalt)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 7 in conjunction with Article 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) — Failure to organise an open procedure for award of a contract before the conclusion of a contract between the City of Cologne and a private investment firm concerning the rent by the city, for a fixed period of 30 years in consideration for a total rent of more than EUR 600 million, of four exhibition halls to be constructed by that private firm in accordance with detailed contract documents

Operative part of the judgment

The Court:

Declares that the Federal Republic of Germany has failed to fulfil its obligations under Articles 7(4) and 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts by reason of the fact that the City of Cologne concluded the contract of 6 August 2004 with Grundstücksgesellschaft Köln Messe 15 bis 18 GbR, now Grundstücksgesellschaft Köln Messe 8-11 GbR, without applying the procedure for the award of public contracts laid down by those provisions;

2.	Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 51, 23.2.2008.

19.12.2009

Official Journal of the European Union

C 312/3

Judgment of the Court (Third Chamber) of 29 October 2009 (reference for a preliminary ruling from the Regeringsrätten (Sweden)) — Skatteverket v AB SKF

(Case C-29/08) (1)

(Sixth VAT Directive - Articles 2, 4, 13B(d)(5) and 17 - Directive 2006/112/EC - Articles 2, 9, 135(1)(f) and 168 - Disposal by a parent company of a subsidiary and of its holding in a controlled company - Scope of VAT - Exemption - Supplies of services acquired as part of share disposal transactions - Deductibility of VAT)

2009/C 312/04

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Skatteverket

Defendant: AB SKF

Re:

Reference for a preliminary ruling — Regeringsrätten — Interpretation of Articles 2, 4, 13B(d)(5) and 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 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) and Articles 2, 9, 135(1) and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system for value added tax (OJ 2006 L 347, p. 1) — Sale, by a parent company, of a subsidiary and of its interests in another company with a view to restructuring the group of companies — Deduction of VAT paid on supplies of services acquired by the parent company in the context of those transactions

Operative part of the judgment

Articles 2(1) and 4(1) and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, and Articles 2(1) and 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, where a parent company disposes of all the shares in a wholly-owned subsidiary and of its remaining shareholding in a controlled company which was in the past wholly owned by it, and where it has supplied to those companies services that are subject to value added tax, that disposal is an economic activity coming within the scope of those directives. However, in so far as the disposal of shares is equivalent to the transfer of a totality of assets or part thereof of an undertaking, within the meaning of Article 5(8) of Sixth Directive 77/388, as amended by Directive 95/7, or the first paragraph of Article 19 of Directive 2006/112, and where the Member State concerned has chosen to exercise the option provided for by those provisions, that transaction does not constitute an economic activity subject to value added tax.

2.	A disposal of shares such as that at issue in the main proceedings must be exempted from value added tax pursuant to both Article 13B(d)(5) of Sixth Directive 77/388, as amended by Directive 95/7, and Article 135(1)(f) of Directive 2006/112.

There is a right to deduct input value added tax paid on services supplied for the purposes of a disposal of shares, under Article 17(1) and (2) of Sixth Directive 77/338, as amended by Directive 95/7, and Article 168 of Directive 2006/112, if there is a direct and immediate link between the costs associated with the input services and the overall economic activities of the taxable person. It is for the referring court to take account of all the circumstances surrounding the transactions at issue in the main proceedings and to determine whether the costs incurred are likely to be incorporated in the price of the shares sold, or if they are among only the cost components of transactions within the scope of the taxable person’s economic activities.

4.	The answers to the preceding questions are not affected by the fact that the disposal of shares is carried out by way of several successive transactions.

(1) OJ C 79, 29.3.2008.

19.12.2009

Official Journal of the European Union

C 312/4

Judgment of the Court (Third Chamber) of 29 October 2009 (reference for a preliminary ruling from the Tribunal du Travail d’Esch-sur-Alzette, Luxembourg) — Virginie Pontin v T-Comalux S.A.

(Case C-63/08) (1)

(Social policy - Protection of pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85/EEC - Articles 10 and 12 - Prohibition of dismissal from the beginning of pregnancy until the end of maternity leave - Judicial protection of rights enjoyed by individuals under Community law - Equal treatment for men and women - Directive 76/207/EEC - Article 2(7), third subparagraph - Less favourable treatment of a woman related to pregnancy or maternity leave - Restriction of remedies available to women dismissed during pregnancy)

2009/C 312/05

Language of the case: French

Referring court

Tribunal du Travail d’Esch-sur-Alzette

Parties to the main proceedings

Applicant: Virginie Pontin

Defendant: T-Comalux S.A.

Re:

Reference for a preliminary ruling — Tribunal du Travail, Esch-sur-Alzette — Interpretation of Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 L 348, p. 1) and Article 2 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) — Scope of the judicial protection of a pregnant worker who has been dismissed — Compatibility with the abovementioned directives of national legislation making a legal action brought by a pregnant worker who has been dismissed subject to short time-limits, fixed in advance, of 8 or 15 days and limiting the scope of the action to the continued employment in the undertaking, or the reinstatement there, of the worker who has been dismissed, to the exclusion of an award of damages

Operative part of the judgment

Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) must be interpreted as not precluding legislation of a Member State which provides a specific remedy concerning the prohibition of dismissal of pregnant workers or workers who have recently given birth or are breastfeeding laid down in that Article 10, exercised according to procedural rules specific to that remedy, provided however that those rules are no less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render practically impossible the exercise of rights conferred by Community law (principle of effectiveness). A fifteen-day limitation period, such as that laid down in the fourth subparagraph of Article L. 337-1(1) of the Luxembourg Labour Code, does not appear to meet that condition, but that is a matter for the referring court to determine.

Article 2, in conjunction with Article 3, of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, must be interpreted as precluding legislation of a Member State, such as that introduced by Article L 337-1(1) of the Luxembourg Labour Code, which is specific to the protection provided for in Article 10 of Directive 92/85 in the event of the dismissal of a pregnant worker, or of a worker who has recently given birth or is breastfeeding, and which denies a pregnant employee who has been dismissed during her pregnancy the option to bring an action for damages whereas such an action is available to any other employee who has been dismissed, where such a limitation on remedies constitutes less favourable treatment of a woman related to pregnancy. That would be the case in particular if the procedural rules relating to the only action available in the case of dismissal of such workers do not comply with the principle of effective judicial protection of an individual’s rights under Community law, a matter which it is for the referring court to determine.

(1) OJ C 93, 12.4.2008.

19.12.2009

Official Journal of the European Union

C 312/5

Judgment of the Court (Grand Chamber) of 27 October 2009 (reference for a preliminary ruling from the Landesgericht Linz — Austria) — Land Oberösterreich v ČEZ as

(Case C-115/08) (1)

(Action for cessation of actual or potential nuisance caused to land by the activities of a nuclear power plant situated on the territory of another Member State - Obligation to tolerate actual or potential nuisance caused by installations which have been officially authorised in the Member State where the action is brought - Authorisations issued in other Member States not taken into account - Equal treatment - Principle of non-discrimination on grounds of nationality under the EAEC Treaty)

2009/C 312/06

Language of the case: German

Referring court

Landesgericht Linz

Parties to the main proceedings

Applicant: Land Oberösterreich

Defendant: ČEZ as

Re:

Reference for a preliminary ruling — Landesgericht Linz (Austria) — Interpretation of the principles of free movement of goods, freedom of establishment, non-discrimination on grounds of nationality and fairness — National provision stipulating that only an action for damages may be brought for a nuisance emanating from an officially authorised installation — Restricting application of that provision to authorisations granted by domestic authorities only, with the result that an action for an injunction can be brought for a nuisance emanating from an installation situated in the territory of another Member State — Temelín nuclear power plant

Operative part of the judgment

The principle of prohibition of discrimination on grounds of nationality within the scope of application of the EAEC Treaty precludes the application of the legislation of a Member State, such as that at issue in the main proceedings, under which an undertaking in possession of the necessary official authorisations for operating a nuclear power plant situated in the territory of another Member State, may be the subject of an action for an injunction to prevent an actual or potential nuisance to neighbouring property emanating from that installation, whereas undertakings having an industrial installation situated in the Member State where the action is brought and in possession of an official authorisation may not be the subject of such an action and may only be the subject of a claim for damages for harm caused to a neighbouring property.

It is for the national court to give, in so far as possible, to the domestic legislation which it must apply an interpretation which complies with the requirements of Community law. If such an application in accordance with Community law is not possible, the national court is bound to apply Community law in full and protect the rights it confers on individuals, and to disapply, if necessary, any provision in so far as application thereof, in the circumstances of the case, would lead to a result which is contrary to Community law.

(1) OJ C 142, 7.6.2008.

19.12.2009

Official Journal of the European Union

C 312/5

Judgment of the Court (Third Chamber) of 29 October 2009 (reference for a preliminary ruling from the Tallinna Halduskohus (Republic of Estonia)) — Rakvere Lihakombinaat AS v Põllumajandusministeerium, Maksu- ja Tolliameti Ida maksu- ja tollikeskus

(Case C-140/08) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Frozen cuts or offal of cocks and hens - Accession of Estonia - Transitional measures - Agricultural products - Surplus stocks - Regulation (EC) No 1972/2003)

2009/C 312/07

Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings

Applicant: Rakvere Lihakombinaat AS

Defendants: Põllumajandusministeerium, Maksu- ja Tolliameti Ida maksu- ja tollikeskus

Re:

Reference for a preliminary ruling — Tallinna Halduskohus — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) and Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3) — Mechanically separated meat, frozen, obtained by mechanical deboning of fowls — Classification under heading 0207 14 10 (frozen cuts of fowls, boneless) or heading 0207 14 99 (frozen offal of fowls, other) of the Combined Nomenclature — Charge on surplus stocks of agricultural products held by operators — Determination of the amount of the transitional stock and the surplus stock for the purpose of that charge

Operative part of the judgment

Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning that products such as those at issue in the main proceedings constituted of frozen mechanically separated meat obtained after the mechanical deboning of fowls and destined for human consumption must be classified in subheading 0207 14 10 of the Combined Nomenclature.

Article 4(2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004, does not preclude national legislation such as Article 6(1) of the Law on the surplus stock charge (Üleliigse laovaru tasu seadus), as amended by the Law of 25 January 2007, under which an operator’s surplus stock is determined by deducting from the stock actually held on 1 May 2004 the transitional stock defined as the average stock on 1 May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to the growth of agricultural production observed in the Member State in question during that four-year period.

3.	Regulation No 1972/2003 does not preclude the levying of a charge on an operator’s surplus stock even if he is able to prove that he obtained no advantage when marketing that stock after 1 May 2004.

(1) OJ C 171, 5.7.2008.

19.12.2009

Official Journal of the European Union

C 312/6

Judgment of the Court (Fourth Chamber) of 29 October 2009 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — NCC Construction Danmark A/S v Skatteministeriet

(Case C-174/08) (1)

(Sixth VAT Directive - Article 19(2) - Deduction of input tax - Hybrid taxable person - Goods and services used for both taxable and exempt activities - Calculation of the deductible proportion - Definition of ‘incidental real estate transactions’ - Self-supply - Principle of fiscal neutrality)

2009/C 312/08

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of the second sentence of Article 19(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment — Building business engaged in the sale of buildings constructed by it on its own account with a view to resale — Goods and services used for activities which do and do not give rise to entitlement to deduct VAT paid upstream — Calculation of pro rata deduction — Concept of incidental real estate transactions

Operative part of the judgment

Article 19(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that the sale, in the case of a building business, of buildings constructed on its own account cannot be classified as an ‘incidental real estate transaction’ within the meaning of that provision, where that activity constitutes the direct, permanent and necessary extension of its business. In those circumstances, it is not necessary, in this case, to assess to what extent that sales activity, viewed separately, entails a use of goods and services on which value added tax is payable.

The principle of fiscal neutrality cannot preclude a building business, which is required to pay value added tax on supplies relating to construction effected on its own account (self-supply), from being unable fully to deduct the value added tax relating to the general costs incurred thereby, since the turnover from the sale of buildings thus constructed is exempt from value added tax.

(1) OJ C 171, 5.7.2008.

19.12.2009

Official Journal of the European Union

C 312/7

Judgment of the Court (Second Chamber) of 29 October 2009 — Commission of the European Communities v Ireland

(Case C-188/08) (1)

(Failure of a Member State to fulfil obligations - Directive 75/442/EEC - Waste - Domestic waste waters discharged through septic tanks in the countryside - Waste not covered by other legislation - Failure to transpose)

2009/C 312/09

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, D. Lawunmi and M. Wilderspin, Agents)

Defendant: Ireland (represented by: D. O’Hagan, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement, so far as domestic waste waters discharged through septic tanks is concerned, of Articles 4, 7, 8, 9, 10, 11, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) — Waste not covered by other legislation

Operative part of the judgment

The Court:

Declares that, by failing to adopt, save in County Cavan, all the laws, regulations and administrative provisions necessary to comply with Articles 4 and 8 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, as regards domestic waste waters disposed of in the countryside through septic tanks and other individual waste water treatment systems, Ireland has failed to fulfil its obligations under that directive;

2.	Orders Ireland to pay three quarters of the costs of the Commission of the European Communities and to bear its own costs;

3.	Orders the Commission of the European Communities to bear one quarter of its own costs.

(1) OJ C 197, 2.8.2008.

19.12.2009

Official Journal of the European Union

C 312/7

Judgment of the Court (Third Chamber) of 29 October 2009 — Commission of the European Communities v Republic of Finland

(Case C-246/08) (1)

(Failure of a Member State to fulfil obligations - Sixth VAT Directive - Article 2(1) and Article 4(1) and (2) - Meaning of ‘economic activities’ - Public legal aid offices - Legal aid services provided in legal proceedings in return for a part contribution paid by the recipient - Meaning of ‘direct link’ between the service rendered and the consideration received)

2009/C 312/10

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: P. Aalto and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland (represented by: A. Guimaraes-Purokoski, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2(1) and 4(1), (2) and (5) of Sixth Council Directive 77/388/EEC of 17 May 1977 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) — National legislation providing for different treatment for VAT purposes of legal advice services depending on whether they are provided by private legal advisers or by advisers working in public legal aid offices — Distortions of competition

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders the Commission of the European Communities to pay the costs.

(1) OJ C 209, 15.08.2008.

19.12.2009

Official Journal of the European Union

C 312/8

Judgment of the Court (Seventh Chamber) of 29 October 2009 — Commission of the European Communities v Italian Republic

(Case C-249/08) (1)

(Failure of a Member State to fulfil obligations - Common fisheries policy - Conservation of resources - Control system in the fisheries sector - Regulation (EC) No 894/97 - Article 11 - Regulation (EEC) No 2241/87 - Article 1(1) and (2) - Regulation (EEC) No 2847/93 - Articles 2(1) and 31(1) and (2) - Prohibition of driftnets - Lack of an effective system of monitoring to ensure compliance with that prohibition)

2009/C 312/11

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: K. Banks and C. Cattabriga, acting as Agents)

Defendant: Italian Republic (represented by: I. Bruni, acting as Agent, and F. Arena, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1) and of Articles 2 and 31(1) and (2) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1) — Inspection and control of fishing vessels and their activities — Measures to be taken in the case of non-compliance with the rules in force — Provisions relating to the retention on board or use of driftnets

Operative part of the judgment

The Court:

Declares that by failing to control, inspect and survey in a satisfactory manner fishing activities within its territory and within the waters subject to its sovereignty or jurisdiction, in particular with regard to compliance with the provisions governing the retention on board and use of driftnets, and by not ensuring in a satisfactory manner that appropriate measures are taken against those responsible for infringements of the Community rules on the retention on board and use of driftnets, in particular by the imposition of dissuasive penalties on those persons, the Italian Republic has failed to fulfil its obligations under Article 1(1) of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities and Articles 2(1) and 31(1) and (2) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 2846/98 of 17 December 1998;

2.	Orders the Italian Republic to pay the costs.

(1) OJ C 209, 15.08.2008.

19.12.2009

Official Journal of the European Union

C 312/8

Judgment of the Court (Fourth Chamber) of 29 October 2009 — Commission of the European Communities v Kingdom of Sweden

(Case C-274/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/54/EC - Article 15(2) - Article 23(2) - Internal market in electricity - Prior approval of the methodologies used to calculate or establish the terms and conditions for connection and access to national networks, including transmission and distribution tariffs - National regulatory authority)

2009/C 312/12

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and P. Dejmek, Agents)

Defendant: Kingdom of Sweden (represented by: A. Falk, Agent)

Re:

Failure of a Member State to fulfil its obligations — Breach of Article 15(2)(b) and (c) and of Article 23(2)(a) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37) — Failure to ensure a functional division between distribution and production interests in a vertically integrated undertaking — Failure to make the regulatory authorities responsible for establishing or approving the methodologies used to calculate or establish the terms and conditions for access to national networks

Operative part of the judgment

The Court:

Declares that, by failing to adopt measures necessary to ensure a functional division between distribution and production interests in a vertically integrated undertaking in accordance with Article 15(2)(b) and (c) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC and by failing to make the regulatory authorities responsible for approving, in advance, at least the methodologies used to calculate or establish the terms and conditions for access to national networks, including transmission and distribution tariffs in accordance with Article 23(2)(a) thereof, the Kingdom of Sweden has failed to fulfil its obligations under Article 15(2)(b) and (c) and Article 23(2)(a) of that directive;

2.	Orders the Kingdom of Sweden to pay the costs.

(1) OJ C 236, 13.9.2008.

19.12.2009

Official Journal of the European Union

C 312/9

Judgment of the Court (Sixth Chamber) of 29 October 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-474/08) (1)

(Failure of a Member State to fulfil obligations - Failure to adopt all the provisions necessary to comply with Article 23(2) and (5) of Directive 2003/54/EC concerning common rules for the internal market in electricity - Powers of the regulatory authority in the electricity sector)

2009/C 312/13

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, acting as Agents)

Defendant: Kingdom of Belgium (represented by: C. Pochet, acting as Agent, and J. Scalais and O. Vanhulst, avocats)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt all the provisions necessary to comply with Article 23(2) and (5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37) — Powers of the regulatory authority in the electricity sector

Operative part of the judgment

The Court:

Declares that

—

by failing to provide that cases of refusal of access to the electricity distribution or transmission systems may be submitted to the regulatory authority which must then issue a binding decision within a period of two months, in accordance with the provisions of Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, and

—

by attributing to an authority other than the regulatory authority the power to define criteria which are decisive for the calculation of tariffs as regards certain electricity transmission installations, contrary to the provisions of Article 23(2)(a) of Directive 2003/54,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;

2.	Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 32, 07.02.2009.

19.12.2009

Official Journal of the European Union

C 312/9

Judgment of the Court (Seventh Chamber) of 29 October 2009 — Commission of the European Communities v Republic of Poland

(Case C-551/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/68/EC - Self-employed activity of reinsurance - Taking up and pursuit - National provisions prior to the directive - Failure to communicate or failure to transpose within the prescribed period)

2009/C 312/14

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by N. Yerrell and M. Kaduczak, acting as Agents)

Defendant: Republic of Poland (represented by M. Dowgielewicz, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period all the measures necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (OJ 2005 L 323, p. 1)

Operative part of the judgment

The Court:

Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC, and by failing to communicate to the Commission of the European Communities the text of the national provisions adopted in the field covered by that directive, the Republic of Poland has failed to fulfil its obligations under that directive, in particular Article 64;

2.	Orders the Republic of Poland to pay the costs.

(1) OJ C 55 of 7.3.2009.

19.12.2009

Official Journal of the European Union

C 312/10

Action brought on 17 August 2009 — Commission of the European Communities v Republic of Poland

(Case C-331/09)

2009/C 312/17

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: K. Gross and A. Stobiecka-Kuik, Agents)

Defendant: Republic of Poland

Form of order sought

—

declare that, by its failure to comply with the obligations resulting from the Commission Decision of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for the steel producer Technologie Buczek Group (notified under document number C(2007) 5087), published in OJ 2008 L 116, p. 26, and in any event by not informing the Commission of compliance with those obligations, the Republic of Poland has acted in breach of the fourth paragraph of Article 249 EC and of Articles 3, 4 and 5 of the abovementioned decision;

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission adopted, on 23 October 2007, a decision ordering recovery of aid from the Polish steel producer Technologie Buczek Group, in particular from Technologie Buczek SA (‘TB’) and its subsidiaries Huta Buczek (‘HB’) and Buczek Automotive (‘BA’), which implemented in an unlawful manner a previously approved restructuring plan and subsequently received unlawful operating aid. That operating aid took the form of exemption from public-law liabilities. The Republic of Poland was notified of the decision on 24 October 2007 by way of its Permanent Representative to the European Union. At the same time the Commission called on the Republic of Poland to take all measures necessary to ensure recovery of the aid which had been unlawfully granted.

By the date on which the action was brought, the aid granted to HB and BA had not yet been repaid.

According to the Polish authorities, apart from obstacles of a purely technical nature, the reason for the significant delay in recovering the aid lies in the provisions of the Polish law on insolvency. The Polish authorities explained that the State aid referred to in the decision took the form of exemption for TB from its liabilities, even though its subsidiaries were the actual beneficiaries of the aid. In that situation TB was formally accountable for all liabilities, including the amounts to be recovered from HB and BA. The provisions of Polish law allegedly make it impossible for such claims to be written off, with the exception of cases involving ‘complete impossibility’. In addition, if these claims are submitted, the official receiver dealing with the insolvency of TB is obliged to pay out the amounts owing, which may include the amounts to be recovered from the subsidiaries. Furthermore, if those amounts are recovered there will no longer be any legal basis on which recovery of those same amounts may be sought from HB and BA.

The Commission, however, takes the view that it is not sufficient that the Republic of Poland availed itself of all measures open to it. The application of those measures must result in the effective and immediate implementation of the decision, as otherwise it will be necessary to assume that the Republic of Poland has not complied with its obligations. Breach of the obligation on a Member State to recover arises when the steps taken by that Member State have had no influence on the actual recovery of a particular amount.

19.12.2009

Official Journal of the European Union

C 312/11

Action brought on 1 September 2009 — Commission of the European Communities v Republic of Poland

(Case C-349/09)

2009/C 312/18

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: K. Herrmann and M. Simerdova, Agents)

Defendant: Republic of Poland

Form of order sought

—

declare that, by not implementing in full Commission Directive 2005/28/EC of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products, (1) or in any event by not informing the Commission of the provisions adopted to that end, the Republic of Poland has failed to fulfil its obligations under Article 31 of that directive;

—	order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

The period within which Directive 2005/28/EC had to be transposed expired on 29 January 2006.

(1) OJ 2005 L 91, p. 13.

19.12.2009

Official Journal of the European Union

C 312/11

Appeal brought on 2 September 2009 by Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) against the judgment delivered on 30 June 2009 in Case T-444/07 Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) v Commission of the European Communities

(Case C-350/09 P)

2009/C 312/19

Language of the case: French

Parties

Appellant: Centre de Promotion de l’Emploi par la Micro-Entreprise (CPEM) (represented by C. Bonnefoi, avocate)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	set aside the judgment of the Court of First Instance;

—	grant, in whole or in part, the form of order sought at first instance;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The appellant puts forward thirteen grounds of appeal relating to the dismissal by the Court of First Instance of its action for annulment of the Commission’s decision of 4 October 2007 cancelling the assistance granted by the European Social Fund (ESF) by Decision C(1999) 2645 of 17 August 1999.

By its first ground of appeal, CPEM submits that the Court of First Instance breached the principle of equal treatment in that it did not comply with the requirements of a fair balance between the arguments of the parties. By confining itself to stating, on several occasions, that the Commission rejected or rebutted CPEM’s arguments, the Court of First Instance did not specify the Commission’s arguments or the way in which they rejected or rebutted those of CPEM, which created an imbalance in the presentation of the arguments and consequently in their treatment in the judgment.

By its second ground of appeal, CPEM submits that the Court of First Instance erred in law by refusing to acknowledge the ‘co-responsibility’ of the Commission, in that the Commission was aware of the acts complained of but took no steps, in its periodic checks on the implementation of the subsidised project, to block the payments of the advances and the balance of the subsidy. The obligation on CPEM to repay the whole of the financial assistance granted is therefore unfounded, having regard to the arguments put forward by CEPM, which establish at the very least the co-responsibility of the Commission in the detrimental situation created.

By its third ground of appeal, CPEM submits that the Court of First Instance wrongly failed to examine its arguments concerning the choice of the legal bases of the check, which is vitiated by unlawfulness in that it was performed on the basis of a different regulation from that on the basis of which the check is officially carried out.

By its fourth ground of appeal, CPEM states that the Court of First Instance erred in law in declaring inadmissible the form of order sought in respect of obtaining compensation for public damage to its reputation. Information was given to the local press by OLAF even though CEPM had not yet been notified of the adjustment decision. In such circumstances, to make that information public causes serious damage to the reputation of an organisation which acts in the public interest, does not have its own resources or customers, and derives its funding solely from public and private contributors.

By its fifth ground of appeal, CPEM submits that the Court of First Instance erred in law and disregarded the principle of proportionality by dismissing the application for symbolic compensation for its staff on the ground of lack of specific authority conferred on the lawyer, whereas the errors pointed out by CPEM as regards the authority given to the OLAF investigators and the Commission staff were not examined by the Court of First Instance.

By its sixth ground of appeal, CPEM criticises the Court of First Instance for erring in law by reducing the scope of the complaint and the examination of the first plea in law to the sole question of respect of the rights of the defence, even though it referred expressly to the fundamental rights of the defence and the general principles of law.

By its seventh ground of appeal, CPEM submits that the Court of First Instance further erred in law by reducing the scope of respect of the rights of the defence solely to the possibility for the addressees of a decision substantially affecting their interests to be placed in a position in which they can effectively put forward their point of view. Respect of the rights of the defence is much wider in scope. Moreover, the ‘effectiveness’ of the discussion with OLAF and the Commission and the ‘careful and impartial’ examination of all the elements of the case are highly debatable in the present case, as is the failure of OLAF to communicate the subject of the complaints made against CPEM.

By its eighth ground of appeal, CPEM criticises the Court of First Instance more particularly for erring in law in that it considered that informing the press of the content of an administrative decision imposing a penalty even before the recipient has been notified of it does not constitute an infringement of the rights of the defence.

By its ninth ground of appeal, CPEM complains that the Court of First Instance wrongly rejected its plea in law concerning the failure by the Commission, in the procedure leading to the adoption of the contested decision, to respect the rights of the defence and the principles of the presumption of innocence, legal certainty, balance and the neutrality of checks. Respect for those general principles of law should be guaranteed not only in administrative procedures liable to lead to the imposition penalties but also in preliminary investigation procedures.

By its tenth ground of appeal, CPEM submits that the Court of First Instance erred in law in disregarding the French concept of a non-profit-making organisation and the relations such an organisation may and must have with the various local authorities. It thus repeated the original mistake by the Commission and OLAF, which regarded the links between CPEM and local authorities, including the city of Marseille, as a serious irregularity.

By its eleventh ground of appeal, CPEM complains that the Court of First Instance erred in law in stating that CPEM considered the ‘promoter’s guide’ as not capable of being relied on and dismissing its arguments in this respect, when in fact it did not regard the guide as incapable of being relied on but merely complained of the existence of several different versions leading to judicial uncertainty and failure to respect the right to an inter partes hearing.

By its twelfth ground of appeal, CPEM submits that the Court of First Instance wrongly interpreted the concept of ‘valorisation’ by adopting a legally incorrect argument of the Commission, namely that that technique of allocating expenditure was authorised in ‘classic’ projects covered by the ESF but prohibited in pilot projects under Article 6(1)(a) of Regulation No 4255/88. (1)

By its thirteenth and last ground of appeal, CPEM complains, finally, of the failure of the Court of First Instance to observe the principle of legal certainty, in that it failed to address the plea concerning the non-applicability of Regulation No 1605/2002, (2) on which the decision of OLAF and the Commission was based, although at the material time it was the Financial Regulation of 21 December 1977 (3) which was in force. In addition, CPEM requests, pursuant to the second and third subparagraphs of Article 47(1) of the Rules of Procedure of the Court of Justice, that the facts be ascertained by calling witnesses.

(1) Council Regulation (EEC) No 4255/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund, OJ 1988 L 374, p. 21.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ 2002 L 248, p. 1.

(3) Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), as amended by Council Regulation (EC, ECSC, Euratom) No 2779/98 of 17 December 1998 amending the Financial Regulation of 21 December 1977, OJ 1998 L 347, p. 3.

19.12.2009

Official Journal of the European Union

C 312/13

Reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 7 September 2009 — Dr. Donat Cornelius Ebert v Budapesti Ügyvédi Kamara

(Case C-359/09)

2009/C 312/20

Language of the case: Hungarian

Referring court

Fővárosi Ítélőtábla

Parties to the main proceedings

Applicant: Dr. Donat Cornelius Ebert

Defendant: Budapesti Ügyvédi Kamara

Questions referred

Can Council Directive 89/48/EEC (1) and Directive 98/5/EC (2) of the Parliament and of the Council be interpreted as meaning that the applicant, a German citizen licensed to practise law in Germany where he is a member of the Bar Association, but who has a permit to live and work in Hungary, has the right to use, in legal and administrative proceedings, the title ‘ügyvéd’ (lawyer), which is the official title in the host Member State (Hungary), in addition to the German title ‘Rechtsanwalt’ (lawyer) and the Hungarian title ‘európaiközösségi jogász’ (Community lawyer), in spite of the fact that he is not admitted to the Bar Association in Hungary and has not obtained any form of authorisation?

2.	Does Directive 98/5/EC supplement Directive 89/4[8]/EEC in the sense that Directive 98/5/EC on the practice of the profession of lawyer constitutes a special law on the legal profession, whereas Directive 89/4[8]/EEC merely regulates in a general manner the recognition of higher-education diplomas?

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16).

(2) Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36).

19.12.2009

Official Journal of the European Union

C 312/13

Appeal brought on 11 September 2009 by Athinaïki Techniki AE against the order of the Court of First Instance (Fourth Chamber) delivered on 29 June 2009 in Case T-94/05 Athinaïki Techniki AE v Commission of the European Communities

(Case C-362/09 P)

2009/C 312/21

Language of the case: French

Parties

Appellant: Athinaïki Techniki AE (represented by: S.A. Pappas, lawyer)

Other parties to the proceedings: Commission of the European Communities, Athens Resort Casino AE Symmetochon

Form of order sought

—	Set aside the order under appeal;

—	grant the form of order sought at first instance;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in support of its appeal.

By the first plea, it is claimed that the Court of First Instance misinterpreted the earlier case-law of the Court of Justice with regard to the conditions governing the unlawfulness of the withdrawal of an administrative act. In order for the withdrawal to be valid, the unlawfulness of the act must have been established and it must have been revoked within a reasonable period. However, in the present case, the Commission’s act was withdrawn more than four years after its adoption and without any reasons being given.

By its second plea, Athinaïki Techniki submits that the Court of First Instance erred in law by failing to rule on the issue which it had raised concerning the misuse of powers. By withdrawing the decision at issue, the Commission was seeking not to withdraw the act in question so as to comply with the principle of legality, but to avoid review by the Community judicature.

Third, the appellant states that it still has an interest in obtaining a judgment annulling the decision of the Commission that is at issue, contrary to what was held in the order under appeal. The consequences of the Commission’s withdrawal of the act in question are not, in fact, confined merely to the reopening of the preliminary investigation procedure. A judgment annulling a decision gives rise to an obligation on the part of the Commission either to open the formal State aid investigation procedure, or to invite the Member State concerned to cancel or modify the aid in question. The Court of First Instance therefore erred in law when it took the view that the only consequence of annulment of the decision at issue was the obligation to reopen the preliminary investigation procedure.

Finally, the appellant takes the view that the Court of First Instance failed to have regard to the force of res judicata attaching to the judgment of the Court of Justice in the related Case C-521/06 P. It is apparent from that judgment that the Commission could not persist in its failure to take administrative action in the context of the State aid investigation procedure. However, by withdrawing the decision at issue, the Commission effectively did just that — failed to act — and the Court of First Instance committed a further error of law by failing to criticise the Commission at all.

19.12.2009

Official Journal of the European Union

C 312/14

Appeal brought on 15 September 2009 by ISD Polska sp. z o. o., Industrial Union of Donbass Corporation, ISD Polska sp. z o. o. (formerly Majątek Hutniczy sp. z o. o.) against the judgment delivered on 1 July 2009 in Joined Cases T-273/06 and T-297/06 ISD Polska and Others v Commission

(Case C-369/09 P)

2009/C 312/22

Language of the case: French

Parties

Appellants: ISD Polska sp. z o. o., Industrial Union of Donbass Corporation, ISD Polska sp. z o. o. (formerly Majątek Hutniczy sp. z o. o.) (represented by C. Rapin and E. Van den Haute, avocats)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	declare the appeal admissible;

—	set aside the judgment of the Court of First Instance of the European Communities (Eighth Chamber) of 1 July 2009 in Joined Cases T-273/06 and T-297/06;

—	grant in their entirety, or in the alternative grant in part, the forms of order sought before the Court of First Instance of the European Communities in Joined Cases T-273/06 and T-297/06;

—	order the Commission to pay all the costs;

—	should the Court of Justice find that there is no need to adjudicate, order the Commission to pay the costs in accordance with Article 69(6) in conjunction with Article 72(a) of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

The appellants put forward three grounds of appeal.

By their first ground of appeal, they challenge the Court of First Instance’s assessment that Protocol No 8 on the restructuring of the Polish steel industry, annexed to the Act of Accession of the Republic of Poland to the European Union, (1) provides in point 6 for the retroactive application of its provisions. The appellants submit that no retroactive effect can be derived from the wording, purpose or scheme of that provision, which merely states that the undertakings listed in Annex I to Protocol No 8 can receive aid, within certain limits, in the period from 1997 to 2003. That provision means, in other words, that the calculation of the aid which could be attributed to the recipient undertakings up to the end of 2003 must take into account retrospectively the amount of aid already allocated, but not retrospectively regard the aid allocated as unlawful. That interpretation is moreover shared by both the Commission and the Council, which, the Commission in a proposal for a decision and the Council in a decision, found that the commitments made in Protocol No 8 had been complied with.

By their second ground of appeal, the appellants submit that the Court of First Instance erred in law in finding, first, that undertakings in receipt of aid in principle could have a legitimate expectation as to the lawfulness of that aid only if it was granted in compliance with the procedure laid down by Article 88 EC and, second, that the procedures provided for in Protocol No 2 on ECSC products to the Association Agreement of 16 December 1991, (2) by which the contested aid had been brought to the attention of the Commission and the Council, could not give rise to a legitimate expectation on the part of the appellants. It is common ground that no formal notification of the contested aid could take place under Article 88 EC, since the Republic of Poland was not yet a member of the European Union at that time, and that the Commission was indeed informed of the existence of that aid and took the view, following the examination of the Polish restructuring programme and the undertakings’ plans submitted in that context, that they satisfied the requirements of Article 8(4) of Protocol No 2 to the Association Agreement and the conditions laid down in Protocol No 8 to the Act of Accession.

By their third and last ground of appeal, the appellants rely on an infringement of Regulation (EC) No 659/1999 (3) and Regulation (EC) No 794/2004. (4) Under those regulations, the fact that the interest rate applicable to the recovery of contested aid is fixed in close cooperation with the Member State concerned does not suffice for that rate to be regarded as an ‘appropriate’ rate within the meaning of Article 14(2) of Regulation (EC) No 659/1999. The ‘appropriate’ nature of the interest rate applicable to the recovery of State aid is a substantive concept independent of the procedure which the Commission must follow in the exceptional cases in which it fixes the rate in cooperation with the Member State concerned.

(1) OJ 2003 L 236, p. 948.

(2) Europe Agreement of 16 December 1991 establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part (OJ 1993 L 348, p. 2).

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Article 88 EC) (OJ 1999 L 83, p. 1).

(4) Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 (OJ 2004 L 140, p. 1).

19.12.2009

Official Journal of the European Union

C 312/15

Action brought on 23 September 2009 — Commission of the European Communities v Czech Republic

(Case C-378/09)

2009/C 312/24

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: M. Šimerdová and J.-B, Laignelot, acting as Agents)

Defendant: Czech Republic

Form of order sought

—

declare that, by failing to implement correctly in its national legislation the provisions of the first, second and third paragraphs of Article 10a of the Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC), (1) as amended by Council Directive 97/11/EC (2) and Directive 2003/35/EC of the European Parliament and of the Council, (3) the Czech Republic has failed to fulfil its obligations under the first, second and third paragraphs of Article 10a of that directive;

—	order Czech Republic to pay the costs.

Pleas in law and main arguments

The period of implementing the directive into the domestic legal order expired on 25 June 2005.

(1) OJ 1985 L 175, p. 40.

(2) Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment; OJ 1997 L 73, p. 5.

(3) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC; OJ 2003 L 156, p. 17.

19.12.2009

Official Journal of the European Union

C 312/16

Reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium), lodged on 25 September 2009 — Maurits Casteels v British Airways plc

(Case C-379/09)

2009/C 312/25

Language of the case: Dutch

Referring court

Arbeidshof te Brussel

Parties to the main proceedings

Appellant: Maurits Casteels

Respondent: British Airways plc

Questions referred

1.	Can Article 42 EC, in the absence of action on the part of the Council, be invoked by a private individual against his private-sector employer in a dispute before national courts?

Do Article 39 EC, prior to the adoption of Directive 98/49, (1) and Article 42 EC, individually or in conjunction with each other, preclude the following situation:

In the case where an employee who is in the service of the same legal entity/employer, otherwise than in the context of postings, is employed successively in a number of operating units of that employer in various Member States and in each case is subject to the supplementary pension plans applicable to those operating units,

—

for the determination of a period for the acquisition of definitive entitlements to supplementary pension benefits (based on the contributions of the employer and the employee) in a particular Member State, no account is taken of the years of service already completed with the same employer in another Member State or of the employee’s membership of a supplementary pension scheme there, and

—

the transfer of an employee, with his agreement, to an operating unit of the same employer in another Member State is treated as equivalent to the situation, as envisaged in the pension rules, of an employee voluntarily leaving an operating unit, in which case entitlements to a supplementary pension are limited to the employee’s own contributions,

—

and that situation has the unfavourable consequence that the employee loses his entitlements to supplementary pension benefits in relation to his employment in that Member State, which would not have been the case had he worked for his employer in only one Member State and remained a member of the supplementary pension scheme of that Member State?

(1) Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community (OJ 1998 L 209, p. 46).

19.12.2009

Official Journal of the European Union

C 312/16

Action brought on 25 September 2009 — Commission of the European Communities v French Republic

(Case C-383/09)

2009/C 312/26

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: O. Beynet and D. Recchia, acting as Agents)

Defendant: French Republic

Form of order sought

—

Declare that, by not establishing a programme of measures to ensure strict protection of the species Cricetus cricetus (the European Hamster), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1);

—	order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission of the European Communities claims that the French Republic has failed to establish, as required by Article 12 of Directive 92/43/EEC, a system of strict protection for the species Cricetus cricetus (the European Hamster) in Alsace, which is the area in France where this species is naturally distributed.

According to the applicant, a survey of the number of the animal’s burrows showed a significant fall in their numbers in recent years, since the number of burrows has gone from 1167 in 2001 to only 161 in 2007. That being the case, threatened both by unfavourable farming practices and by the pressure of urban development, the species is threatened with complete extinction in the very near future.

In its application, the Commission recognises that the defendant has taken those problems into account by adopting measures relating both to town planning and farming practices, but those measures are entirely inadequate.

First, the three priority action areas, which are the areas where the bulk of efforts to protect the species are concentrated, cover only a very small part of the territory which is the animal’s natural habitat since two thirds of the existing burrows are located outside those areas, which themselves represent no more than 2 % of the land which is favourable to the European Hamster. However, if the territory to be covered by the measures for the protection of this species is to be sufficient, it is necessary to take as the minimum point of reference the presence of the European Hamster in 1990, not in 2000.

Secondly, the protection measures are themselves greatly lacking. The Commission is particularly concerned by the lack of clarity in the legislation in relation to areas which can be re-occupied by the hamster. The national authority has much too great a discretion in the granting of derogations for urban development projects in territories which are the habitat of the hamsters and great uncertainty prevails as regards compensatory measures to be taken for the protection of this species.

(1) OJ 1992 L 206, p. 7

19.12.2009

Official Journal of the European Union

C 312/17

Reference for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 29 September 2009 — PRUNUS SARL v Directeur des Services Fiscaux

(Case C-384/09)

2009/C 312/27

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicant: Prunus SARL

Defendant: Directeur des Services Fiscaux

Questions referred

Does Article 56 et seq. of the EC Treaty preclude legislation such as that laid down by Article 990 D et seq. of the Code général des impôts which grants legal persons having their effective centre of management in France or, since 1 January 2008, in a Member State of the European Union, entitlement to exemption from the tax at issue and which, as regards legal persons having their effective centre of management in the territory of a non-Member State, makes that entitlement conditional either on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between France and that State or on there being a requirement, under a treaty containing a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than legal persons having their effective centre of management in France?

Does Article 56 et seq. of the EC Treaty preclude legislation such as that laid down by Article 990 F of the Code général des impôts which enables tax services to hold jointly and severally liable for payment of the tax provided for in Article 990 D et seq. of the Code général des impôts any legal person interposed between the party or parties liable to the tax and the immovable properties or rights in such properties?

19.12.2009

Official Journal of the European Union

C 312/17

Reference for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Republic of Lithuania) lodged on 29 September 2009 — Nidera Handelscompagnie B.V. v Valstybinės mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

(Case C-385/09)

2009/C 312/28

Language of the case: Lithuanian

Referring court

Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės

Parties to the main proceedings

Applicant: Nidera Handelscompagnie B.V.

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

Questions referred

Is legislation under which the right to deduct VAT is given only to VAT payers — that is to say, only to taxable persons registered as VAT payers in a Member State (in this case, in Lithuania) according to the established procedures — in accordance with the provisions of Directive 2006/112/EC governing the right to deduct VAT?

If the answer to the first question is in the affirmative, is it in accordance with the general principles of the right to deduct VAT that are laid down in Directive 2006/112/EC if such legislation provides that a VAT payer has the right to deduct input and/or import VAT in respect of goods and/or services acquired before the date of his registration as a VAT payer only if those goods will be used for an activity of that VAT payer that is subject to VAT, that is to say, input and/or import VAT in respect of goods and services acquired before the date of his registration as a VAT payer may not be deducted if those goods have already been used for that activity?

19.12.2009

Official Journal of the European Union

C 312/18

Reference for a preliminary ruling from the Cour de travail Bruxelles (Belgium) lodged on 30 September 2009 — Jhonny Briot v Randstad Interim, Sodexho SA, Council of the European Union

(Case C-386/09)

2009/C 312/29

Language of the case: French

Referring court

Cour du travail de Bruxelles

Parties to the main proceedings

Applicant: Jhonny Briot

Defendants: Randstad Interim, Sodexho SA and Council of the European Union

Questions referred

Where, in the framework of a transfer of an undertaking within the meaning of Article 1(1) of Directive 2001/23, (1) it appears that the entity transferred, namely the staff restaurant of a Community institution, used a significant number of temporary agency workers under a framework contract concluded with various temporary employment agencies, must the temporary employment agency, or failing that the institution under whose control and direction the temporary workers worked, be regarded as an employer-transferor within the meaning of Article 2(1)(a) of that directive?

Where neither the temporary employment agency nor the undertaking using the worker can be recognised as having the status of employer-transferor, must the temporary agency workers be considered not to be entitled to the safeguards offered by Directive 2001/2003?

Must Article 4(1) of Directive 2001/23/EC be interpreted as meaning that the non-renewal of the fixed-term contracts of employment of the temporary agency workers attributable to the transfer of the activity to which they were assigned disregards the prohibition laid down in that provision in such a way that those temporary agency workers must be regarded as still being available to the user on the date of the transfer?

Must Article 3(1) of Directive 2001/23/EC, read where appropriate in conjunction with Article 2(2)(c), be interpreted as requiring the transferee to maintain an employment relationship with the temporary agency workers who were assigned to the activity that is being transferred or who must be regarded as still being available to the user on the date of the transfer?

If that question is answered in the affirmative, must Article 3(1) be interpreted as requiring the conclusion of an employment contract of indeterminate duration where the transferee is not a temporary employment agency and cannot conclude a temporary agency contract of employment?

(1) Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).

19.12.2009

Official Journal of the European Union

C 312/18

Reference for a preliminary ruling from the Juzgado Mercantil (Spain) lodged on 1 October 2009 — Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L.

(Case C-387/09)

2009/C 312/30

Language of the case: Spanish

Referring court

Juzgado Mercantil No 1 de Santa Cruz de Tenerife

Parties to the main proceedings

Applicant: Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA)

Defendant: Magnatrading S.L.

Questions referred

1.	Is the concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29/EC (1) a new Community concept which must be interpreted in the same way in all the Member States of the European Community?

If the reply to the first question is in the affirmative:

2.1.

If a national system of equitable remuneration for private copying existed before the entry into force of Directive 2001/29/EC, must the national provisions be interpreted ‘in conformity’ with the new concept of ‘fair compensation’ for private copying following the entry into force of Directive 29/2001?

2.2.

Must the scope of the private copying exception in Article 5(2)(b) of Directive 2001/29, and the criteria set out in recital 35 in the preamble to the directive, be taken into account in order to determine which devices are subject to the payment of fair compensation and the amount thereof?

If that is the case, would it be compatible with the Community concept of ‘fair compensation for private copying’ (a) to establish a liability to pay that compensation in respect of devices intended for personal and professional use other than ‘private copying’ and/or (b) to set a flat-rate payment which does not take account of whether the devices are used for the purposes of private copying and the harm which is liable to result from such use, thereby making situations where there is no harm or where the harm is negligible also subject to the payment of compensation?

2.3.

Is a system which, by setting a private copying limit, establishes a general liability to pay fair compensation on a certain category of equipment or media (for example, recordable CD-R and DVD-R data computer disks), irrespective of whether they are purchased by natural persons for private use or by natural persons for professional use, in order to generate and store their own data or in compliance with legal obligations, or by legal persons who do not benefit from the private copying exception in any circumstances, compatible with Article 5(2)(b) of Directive 2001/29?

If the reply to the first question is in the negative:

3.1.	Does that mean that Member States have complete freedom to lay down the criteria and mechanisms for determining which devices are subject to the payment of fair compensation for private copying and the amounts thereof, or are there certain limits on that freedom and, if so, what are they?

3.2.	Does that mean that Member States are entitled to permit private third parties to collect compensation in respect of works which authors have assigned voluntarily and free of charge to a society by means of licences or are there certain limits on that right and, if so, what are they?

3.3.	Does that mean that Member States are entitled to permit private third parties to collect compensation from users where such users lawfully comply with a provision which is public and binding or are there certain limits on that right and, if so, what are they?

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

OJ L 167, p. 10

19.12.2009

Official Journal of the European Union

C 312/20

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 2 October 2009 — Reti Televisive Italiane SpA (RTI) v Autorità per le Garanzie nelle Communicazioni

(Case C-390/09)

2009/C 312/32

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Reti Televisive Italiane SpA. (RTI)

Defendant: Autorità per le Garanzie nelle Communicazioni

Questions referred

Are Articles 18 and 18a of Directive 89/552/EEC, (1) as amended by Directive 97/36/EC, (2) to be regarded as being sufficiently precise and unconditional as to be capable, after the period for transposition has expired, of taking precedence over conflicting provisions of domestic law, of supplementing, on a correct interpretation of the third paragraph of Article 249 EC, the relevant national provisions, and of being implemented by an administrative authority, such as AGCOM, which is invested with the power to implement regulations under national law?

Are Articles 18 and 18a of Directive 89/552/EEC, as amended by Directive 97/36/EC, to be interpreted as meaning that, in view of the mandatory minimum duration of 15 minutes applicable to teleshopping windows, any other form of teleshopping, including windows lasting more than 3 minutes but less than 15 minutes, must be classified as a “teleshopping spot” subject to the hourly limits applicable to advertising spots?

Are Articles 1(c), 10, 11 and 18(3) of Directive 89/552/EEC, as amended by Directive 97/36/EC, to be interpreted as meaning that announcements made by a broadcaster in connection with its own programmes and broadcast free of charge are to be regarded as advertising for the purposes of the rules governing the way in which messages are distinguished from the rest of the programme and advertising inserted in television broadcasts?

Are Articles 1(c), 10, 11 and 18(3) of Directive 89/552/EEC, as amended by Directive 97/36/EC, to be interpreted as meaning that the institutional information and communication activities referred to in Italian Law No 150 of 7 June 2000, including messages of social value and messages of public interest, are to be regarded as advertising for the purposes of the rules governing the way in which advertising messages are distinguished from the rest of the programme and advertising inserted in television broadcasts?

(1) OJ 1989 L 298, p. 23.

(2) OJ 1997 L 265, p. 42.

19.12.2009

Official Journal of the European Union

C 312/20

Reference for a preliminary ruling from the Vilniaus Miesto 1 Apylinkės Teismas (Republic of Lithuania), lodged on 2 October 2009 — Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v The Municipal Government Administration of the City of Vilnius, the Ministry of Justice of the Republic of Lithuania, the State Commission on the Lithuanian Language and the Civil Registry Division of the Legal Affairs Department of the Municipal Government Administration of the City of Vilnius

(Case C-391/09)

2009/C 312/33

Language of the case: Lithuanian

Referring court

Vilniaus Miesto 1 Apylinkės Teismas

Parties to the main proceedings

Claimants: Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn

Defendants: The Municipal Government Administration of the City of Vilnius, the Ministry of Justice of the Republic of Lithuania, the State Commission on the Lithuanian Language and the Civil Registry Division of the Legal Affairs Department of the Municipal Government Administration of the City of Vilnius

Questions referred

In the light of the rules contained in Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, is Article 2(2)(b) of that directive to be construed as prohibiting Member States from indirectly discriminating against individuals on grounds of their ethnic origin in the case where national legal rules provide that personal first names and surnames may be written in documents indicating civil status using only the letters of the national language?

In the light of the rules contained in Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, is Article 2(2)(b) of that directive to be construed as prohibiting Member States from indirectly discriminating against individuals on grounds of their ethnic origin in the case where national legal rules provide that the first names and surnames of individuals of different origin or nationality must be written, in documents indicating civil status, using Roman letters and not employing diacritical marks, ligatures or other modifications to the letters of the Roman alphabet which are used in a variety of languages?

In the light of Article 18(1) of the Treaty establishing the European Community, which provides that every citizen of the Union has the right to move and reside freely within the territory of the Member States, and in the light of the first paragraph of Article 12 of that Treaty, which prohibits discrimination on grounds of nationality, should those provisions be construed as prohibiting Member States from providing in national legal rules that personal first names and surnames may be written in documents indicating civil status using only the letters of the national language?

In the light of Article 18(1) of the Treaty establishing the European Community, which provides that every citizen of the Union has the right to move and reside freely within the territory of the Member States, and in the light of the first paragraph of Article 12 of that Treaty, which prohibits discrimination on grounds of nationality, should those provisions be construed as prohibiting Member States from providing in national legal rules that the first names and surnames of individuals of different origin or nationality must be written, in documents indicating civil status, using Roman letters and not employing diacritical marks, ligatures or other modifications to the letters of the Roman alphabet which are used in a variety of languages?

(1) OJ L 180, 19.7.2000, p. 22.

19.12.2009

Official Journal of the European Union

C 312/21

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 13 October 2009 — Oasis East sp. z o.o. v Minister Finansów

(Case C-395/09)

2009/C 312/34

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Oasis East sp. z o.o.

Respondent: Minister Finansów

Question referred

Does Community law (in particular, Article 17(6) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, now Article 176 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax) entitle a Member State to apply national provisions which exclude the right of a taxable person to reduce the amount of tax due, or to receive a refund of the difference, in the case of the purchase of imported services in connection with which payment of the amount due is made directly or indirectly to a person having its place of residence, registered office or central management in one of the territories or countries referred to in national law as so-called ‘tax havens’, regard being had to the fact that such exclusion was applied in the Member State prior to its accession to the Community?

(1) OJ 1977 L 145, p. 1.

(2) OJ 2006 L 347, p. 1.

19.12.2009

Official Journal of the European Union

C 312/21

Reference for a preliminary ruling from the Tribunale ordinario di Bari (Italy) lodged on 12 October 2009 — Interedil Srl, in liquidation v Fallimento Interedil Srl, Banca Intesa Gestione Crediti Spa

(Case C-396/09)

2009/C 312/35

Language of the case: Italian

Referring court

Tribunale ordinario di Bari

Parties to the main proceedings

Applicant: Interedil Srl, in liquidation

Defendant: Fallimento Interedil Srl, Banca Intesa Gestione Crediti Spa

Question(s) referred

Is the concept of ‘the centre of a debtor’s main interests’ in Article 3(1) of Regulation No 1346/2000 (1) to be interpreted in accordance with Community law or national law, and, if the former, how is that concept to be defined and what are the decisive factors or considerations for the purpose of identifying the ‘centre of main interests’?

Can the presumption laid down in Article 3(1) of Regulation No 1346/2000, according to which ‘‘[i]n the case of a company. the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary’, be rebutted if it is established that the company carries on genuine business activity in a State other than that in which it has its registered office, or is it necessary, in order for the presumption to be deemed rebutted, to establish that the company has not carried on any business activity in the State in which it has its registered office?

If a company has, in a Member State other than that in which it has its registered office, immovable property, a lease agreement concluded by the debtor company with another company in respect of two hotel complexes, and a contract with a banking institution, are these sufficient factors or considerations to rebut the presumption laid down in Article 3(1) of Regulation No 1346/2000 that the place of the company’s ‘registered office’ is the centre of its main interests and are such circumstances sufficient for the company to be regarded as having an ‘establishment’ within the meaning of Article 3(2) of Regulation No 1346/2000?

If the ruling on jurisdiction by the Corte di Cassazione in the aforementioned Order No 10606/2005 is based on an interpretation of Article 3 of Regulation No 1346/2000 which is at variance with that of the Court of Justice of the European Communities, is the application of that provision of Community law, as interpreted by the Court of Justice, precluded by Article 382 of the Code of Civil Procedure, according to which rulings on jurisdiction by the Corte di Cassazione are final and binding?’

(1) OJ 2000 L 160, p. 1

19.12.2009

Official Journal of the European Union

C 312/22

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 14 October 2009 — Scheuten Solar Technology GmbH v Finanzamt Gelsenkirchen-Süd

(Case C-397/09)

2009/C 312/36

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Scheuten Solar Technology GmbH

Defendant: Finanzamt Gelsenkirchen-Süd

Questions referred

Does Article 1(1) of Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (1) — the EU interest and royalties directive — preclude a provision under which loan interest paid by a company of one Member State to an associated company of another Member State is added to the basis of assessment to trade tax for the first company?

If so, is Article 1(10) of Directive 2003/49 to be interpreted as meaning that a Member State has the option of not applying the directive even where the conditions set out in Article 3(b) in relation to the existence of an associated company have not yet been maintained for an uninterrupted period of at least two years at the time of payment of the interest?

Can the Member States rely, in respect of the paying company, directly on Article 1(10) of the directive in those circumstances?

(1) OJ 2003 L 157, p. 49.

19.12.2009

Official Journal of the European Union

C 312/22

Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 14 October 2009 — Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S v Skatteministeriet

(Case C-398/09)

2009/C 312/37

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicants: Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S

Defendant: Skatteministeriet

Questions referred

Is the Court’s judgment of 14 January 1997 in Joined Cases C-192/95 (1) to C-218/95 Comateb and Others to be interpreted as meaning that the passing-on of an unlawful levy on a product presupposes that the levy is passed on to the buyer of the product in the individual transaction, or may the passing-on in the prices also take place in the prices of other products in completely different transactions, either before or after the relevant sale of products, for example, with the result that an overall assessment is made of the passing-on over a four-year period involving a large number of product groups, including both imported and non-imported products?

Is the Community law concept of ‘passing-on’ to be understood as meaning that an unlawful levy on a sale of products may be regarded as passed on only if the price of the product is higher than that price which applied immediately before the levy was introduced, or may the levy also be regarded as passed on where the undertaking subject to the levy, at the same time as the introduction of the unlawful levy, saved on other levies charged on other bases, and the undertaking therefore maintained its prices unchanged?

Is the Community law concept of ‘unjust enrichment’ to be understood as meaning that the reimbursement of an unlawful levy on a sale of products may be regarded as giving rise to unjust enrichment, where the undertaking, before or after the sale of the taxable product, has made a saving as a result of the abolition of other levies charged on other bases, if it is assumed that that abolition of other levies also benefits other undertakings, including undertakings which did not pay the unlawful levy or only paid it to a lesser extent?

If it is assumed that an unlawful levy, as a result of its structure, has had the effect that proportionately more has been paid in levies by undertakings which imported products than by undertakings which to a greater extent purchased domestic products, and, at the same time as the unlawful levy was introduced, another lawful levy was charged on another basis which proportionately affected both undertakings to the same extent, irrespective of the composition of the undertaking’s purchases, then guidance is sought on the following:

(i)

whether Community law allows for whole or partial refusal to reimburse the unlawful levy to an undertaking which imports products on grounds of passing-on and unjust enrichment, in so far as the refusal leads to a situation where the undertaking, as a result of having paid relatively more of the unlawful levy than a corresponding undertaking which purchased equivalent goods domestically, will thereby, all other things being equal, be placed in a worse position as a result of the tax restructuring and the refusal to reimburse than corresponding undertakings which to a greater extent purchased domestic goods;

(ii)

whether the reimbursement of the unlawful levy in the relevant situation may conceptually give rise to ‘unjust enrichment’ and may therefore be refused, if the reimbursement — even if the levy is regarded as having been passed on — is necessary in order to achieve a situation in which the effect of the tax restructuring, after any reimbursement, all other things being equal, remains the same for undertakings which imported products as for undertakings which purchased domestic products;

(iii)

whether refusal to reimburse in such a situation, which leads to undertakings which to a greater extent purchased domestic products and thus obtained an advantage in relation to undertakings which to a greater extent imported products, is otherwise contrary to Community law, including the principle of equal treatment; and

(iv)

whether the answer to question 3 means that it is not justified to refuse reimbursement of an unlawfully charged levy on grounds of unjust enrichment, to the extent that such reimbursement merely cancels out the advantage for those undertakings which purchased domestic products in relation to undertakings which to a greater extent imported products.

(1) ECR [1997] I-165

19.12.2009

Official Journal of the European Union

C 312/23

Reference for a preliminary ruling from the Højesteret (Denmark), lodged on 19 October 2009 — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5 januar 2002 A/S, in liquidation, Ompackningsselskabet af 1 november 2005 A/S v Merck & Co. Inc., Merck Sharp & Dohme B.V., Merck Sharp & Dohme

(Case C-400/09)

2009/C 312/38

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Appellants: Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5 januar 2002 A/S, in liquidation, Ompackningsselskabet af 1 november 2005 A/S

Respondents: Merck & Co. Inc., Merck Sharp & Dohme B.V., Merck Sharp & Dohme

Questions referred

Are Case C-232/94 MPA Pharma v Rhône-Poulenc Pharma (1) and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova (2) to be interpreted as meaning that a parallel importer which is the holder of the marketing authorisation for, and possesses information on, a medicinal product imported in parallel, and which issues instructions to a separate undertaking for the purchase and repackaging of a medicinal product, for the detailed design of the product’s packaging and for arrangements in relation to the product, infringes the rights of the trade mark proprietor by indicating itself — and not the separate undertaking which holds the repackaging authorisation, has imported the product and has carried out the physical repackaging, including (re)affixing of the trade mark proprietor’s trade mark — as the repackager on the outer packaging of the medicinal product imported in parallel?

Is it of significance in answering Question 1 that an assumption might be made that, where the marketing authorisation holder indicates itself as the repackager instead of the undertaking which physically carried out the repackaging to order, there is no risk that the consumer/end user might be misled into assuming that the trade mark proprietor is responsible for the repackaging?

Is it of significance in answering Question 1 that an assumption might be made that the risk of misleading the consumer/end user into assuming that the trade mark proprietor is responsible for the repackaging is excluded if the undertaking which physically carried out the repackaging is indicated as being the repackager?

Is it only the risk that the consumer/end user might be misled into assuming that the trade mark proprietor is responsible for the repackaging which is of significance in answering Question 1, or are other considerations regarding the trade mark proprietor also relevant, for example (a) that the entity which undertakes the importation and physical repackaging and (re)affixes the trade mark proprietor’s trade mark on the product’s outer packaging potentially on its own account infringes the trade mark proprietor’s trade mark by so doing, and (b) that it may be due to factors for which the entity that physically carried out the repackaging is responsible that the repackaging affects the original condition of the product or that the presentation of the repackaging is of such a kind that it must be assumed to harm the trade mark proprietor’s reputation (see, inter alia, Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova)?

Is it of significance in answering Question 1 that the holder of the marketing authorisation, which has indicated itself as being the repackager, at the time of the notification of the trade mark proprietor prior to the intended sale of the parallel imported medicinal product once repackaged, belongs to the same group as the actual repackager (sister company)?

(1) [1996] ECR I-3671.

(2) [1996] ECR I-3457.

19.12.2009

Official Journal of the European Union

C 312/24

Reference for a preliminary ruling from the Višje sodišče v Mariboru (Republic of Slovenia) lodged on 20 October 2009 — Jasna Detiček v Maurizio Sgueglia

(Case C-403/09)

2009/C 312/39

Language of the case: Slovene

Referring court

Višje sodišče v Mariboru

Parties to the main proceedings

Applicant: Jasna Detiček

Defendant: Maurizio Sgueglia

Questions referred for a preliminary ruling

Does a court of the Republic of Slovenia (a Member State of the European Communities) have jurisdiction under Article 20 of Council Regulation (EC) No 2201/2003 (1) to take protective measures in a situation in which a court of another Member State, having by virtue of that regulation jurisdiction as to the substance, has already taken a protective measure declared enforceable in the Republic of Slovenia?

If the answer to the first question is in the affirmative:

May a Slovene court, pursuant to national law (as permitted by Article 20 of the regulation), take a protective measure under Article 20 of the regulation amending or rendering inoperative a final and enforceable protective measure taken by a court of another Member State which under that regulation has jurisdiction as to the substance?

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).

19.12.2009

Official Journal of the European Union

C 312/25

Action brought on 20 October 2009 — Commission of the European Communities v Republic of Finland

(Case C-405/09)

2009/C 312/40

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by A. Caeiros and M. Huttunen, acting as Agents)

Defendant: Republic of Finland

Form of order sought

—

declare that the Republic of Finland has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Regulation (EEC, Euratom) No 1552/89 (1) and Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 (2) and Article 220 of Regulation (EEC) No 2913/92, (3) in that the Finnish authorities have followed an administrative practice under which the Community’s own resources are established only after the debtor has been allowed a period of at least 14 days within which he may submit observations concerning the matter. The Finnish authorities thus have failed to comply, in the case of subsequent charging of customs duties, with the time-limits laid down for the entry of own resources in the accounts, as a result of which the payment of the Community’s own resources by the authorities has been delayed;

—	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The Commission has brought an action against the Republic of Finland concerning compliance with Articles 2, 6 and 9 to 11 of Regulations (EEC, Euratom) No 1552/89 and (EC, Euratom) No 1150/2000 on the Community’s own resources and with Article 220 of Regulation (EEC) No 2913/92 on the Community Customs Code. The issue in the case is the time at which customs duties subsequently determined by the customs authorities are to be entered in the accounts of the Community’s own resources, that is, when the customs duties collected by the Member State are available to the Community.

According to the Commission, Finland is in breach of the regulations on own resources and the Community Customs Code in the situation in which a customs debt is subsequently charged, since the Finnish officials give the debtor at least 14 days to submit observations before the final decision on subsequent charging is made. As a result of that procedure granting the right to be heard, the entry in the accounts of the Community’s own resources is delayed.

(1) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources, OJ 1989 L 155, p. 1.

(2) Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources, OJ 2000 L 130, p. 1.

(3) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L 302, p. 1.

19.12.2009

Official Journal of the European Union

C 312/25

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 21 October 2009 — Realchemie Nederland BV v Bayer CropScience AG

(Case C-406/09)

2009/C 312/41

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Realchemie Nederland BV

Respondent: Bayer CropScience AG

Questions referred

Is the phrase ‘civil and commercial matters’ in Article 1 of Regulation (EC) No 44/2001 (1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted in such a way that this regulation applies also to the recognition and enforcement of an order for payment of ‘Ordnungsgeld’ (an administrative fine) pursuant to Paragraph 890 of the German Code of Civil Procedure (Zivilprozessordnung)?

Is Article 14 of Directive 2004/48 on the enforcement of intellectual property rights to be interpreted as applying also to enforcement proceedings relating to

(i)	an order made in another Member State concerning an infringement of intellectual property rights;

(ii)	an order made in another Member State imposing a penalty or fine for breach of an injunction against infringement of intellectual property rights;

(iii)

costs determination orders made in another Member State on the basis of the orders referred to at (i) and (ii) above?

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

19.12.2009

Official Journal of the European Union

C 312/26

References for a preliminary ruling from the Tribunal de Grande Instance de Nanterre (France) lodged on 28 October 2009 — Cases Tereos v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Vermandoise Industries SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Sucreries de Toury et Usines annexes SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Roquette Frères SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Sucreries & Distilleries de Souppes-Ouvré Fils SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Cristal Union, successor in title of Sucreries et Raffineries d'Erstein and Sucrerie de Bourgogne v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Lesaffre Frères SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Sucrerie Bourdon v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers SAFBA Fontaine-le-Dun SA v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers Sucreries du Marquenterre v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers

((Case C-411/09) - (Case C-412/09) - (Case C-413/09) - (Case C-414/09) - (Case C-415/09) - (Case C-416/09) - (Case C-417/09) - (Case C-418/09) - (Case C-419/09) - (Case C-420/09))

2009/C 312/42

Language of the case: French

Referring court

Tribunal de Grande Instance de Nanterre

Parties to the main proceedings

Applicants: Tereos (C-411/09), Vermandoise Industries SA (C-412/09), Sucreries de Toury et Usines annexes SA (C-413/09), Roquette Frères SA (C-414/09), Sucreries & Distilleries de Souppes-Ouvré Fils SA (C-415/09), Cristal Union, successor in title of Sucreries et Raffineries d'Erstein and Sucrerie de Bourgogne (C-416/09), Lesaffre Frères SA (C-417/09), Sucrerie Bourdon (C-418/09), SAFBA Fontaine-le-Dun SA (C-419/09), Sucreries du Marquenterre (C-420/09)

Defendants: Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers

Question referred

Is Regulation No 164/2007 (1) invalid in the light of Article 15 of Council Regulation No 1260/2001 (2) in that it fixes a production levy for sugar which is calculated on the basis of an average loss per tonne exported which does not take account of the quantities exported without a refund, although those quantities are included in the total used to evaluate the overall loss to be financed?

(1) Commission Regulation (EC) No 164/2007 of 19 February 2007 fixing the production levies in the sugar sector for the 2005/06 marketing year (OJ 2007 L 51, p. 17).

(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1).

19.12.2009

Official Journal of the European Union

C 312/27

Judgment of the Court of First Instance of 29 October 2009 — Bowland Dairy Products v Commission

(Case T-212/06) (1)

(Action for damages - Regulation (EC) No 178/2002 - Rapid alert system - Supplementary notification - Competence of the national authorities - Commission’s opinion not binding - Modification of the subject-matter of the dispute - Inadmissibility)

2009/C 312/43

Language of the case: English

Parties

Applicant: Bowland Dairy Products Ltd (Barrowford, Lancashire, United Kingdom) (represented by: J. Milligan, Solicitor, D. Anderson QC and A. Robertson, Barrister)

Defendant: Commission of the European Communities (represented by: P. Oliver, J.-P. Keppenne and L. Parpala, Agents)

Re:

Application, first, for annulment of the alleged refusal by the Commission to circulate, under the rapid alert system provided for in Article 50 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), a supplementary notification declaring that the United Kingdom’s Food Standards Agency was content for the curd cheese produced by the applicant to be marketed and, second, for compensation for the loss allegedly suffered by the applicant as a consequence of that refusal.

Operative part of the judgment

The Court:

1.	Dismisses the action as inadmissible.

2.	Orders Bowland Dairy Products Ltd to pay the costs, including those relating to the interim proceedings.

(1) OJ C 237, 30.9.2006.

19.12.2009

Official Journal of the European Union

C 312/27

Judgment of the Court of First Instance of 29 October 2009 — Peek & Cloppenburg v OHIM — Redfil (Agile)

(Case T-386/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Agile - Earlier Community and national word marks Aygill’s - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 312/44

Language of the case: English

Parties

Applicant: Peek & Cloppenburg (Hamburg, Germany) (represented by: T. Dolde, A. Renck and V. von Bomhard, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by S. Laitinen, and subsequently by R. Pethke, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Redfil, SL (Barcelona, Spain) (represented by: C. Hernández Hernández, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 26 July 2007 (Case R 1324/2006-2), relating to opposition proceedings between Peek & Cloppenburg and Redfil, SL.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 July 2007 (Case R 1324/2006 2).

2.	Orders OHIM to pay the costs incurred by Peek & Cloppenburg.

3.	Orders Redfil, SL to bear its own costs.

(1) OJ C 297, 8.12.2007.

19.12.2009

Official Journal of the European Union

C 312/28

Judgment of the Court of First Instance of 11 November 2009 — REWE-Zentral v OHIM — Aldi Einkauf (Clina)

(Case T-150/08) (1)

(Community trade mark - Opposition Proceedings - Application for the Community word mark Clina - Earlier Community word mark CLINAIR - Relative ground of refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 312/45

Language of the case: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: M. Kinkeldey, A. Bognár and S. Schäffler, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: R. Pethke, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 February 2008 (Case R 1484/2006-4) concerning opposition proceedings between Aldi Einkauf GmbH & Co. OHG and REWE-Zentral AG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders REWE-Zentral AG to pay the costs.

(1) OJ C 158, of 21.6.2008.

19.12.2009

Official Journal of the European Union

C 312/28

Judgment of the Court of First Instance of 11 November 2009 — Frag Comercio Internacional v OHIM — Tinkerbell Modas (GREEN by missako)

(Case T-162/08) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark GREEN by missako - Earlier national and Community figurative marks MI SA KO - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 312/46

Language of the case: English

Parties

Applicant: Frag Comercio Internacional, SL (Esparreguera, Spain) (represented by: E. Sugrañes Coca, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: W. Verburg, Agent,)

Other party to the proceedings before the Board of Appeal of OHIM: Tinkerbell Modas LTDA (São Paulo, Brazil)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 14 February 2008 (Case R 1527/2006–2) relating to opposition proceedings between Tinkerbell Modas LTDA and Frag Comercio Internacional, SL

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Frag Comercio Internacional, SL, to pay the costs.

(1) OJ C 171, 5.7.2008.

19.12.2009

Official Journal of the European Union

C 312/29

Judgment of the Court of First Instance of 11 November 2009 — Bayer Healthcare LLC v OHIM — Uriach-Aquilea OTC (CITRACAL)

(Case T-277/08) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark CITRACAL - Earlier national word mark CICATRAL - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 312/47

Language of the case: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, New Jersey, United States) (represented by: M. Edenborough, Barrister)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Uriach-Aquilea OTC, SL (Palau-Solita i Plegamans, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 5 May 2008 (Case R 459/2007-4) relating to opposition proceedings between Uriach-Aquilea OTC, SL and Bayer Healthcare LLC

Operative part of the order

1.	Dismisses the action.

2.	Orders Bayer Healthcare LLC to pay the costs.

(1) OJ C 236, 13.9.2008.

19.12.2009

Official Journal of the European Union

C 312/29

Order of the Court of First Instance of 30 October 2009 — Sun World International v OHIM — Kölla Hamburg (SUPERIOR SEEDLESS)

(Case T-493/08) (1)

(Community trade mark - Partial surrender of registration - No need to adjudicate)

2009/C 312/48

Language of the case: English

Parties

Applicant: Sun World International LLC (Bakersfield, California, United States) (represented by: M. Holah, Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Kölla Hamburg Overseas Import GmbH & Co. KG (Hamburg, Germany) (represented by: C. Lemke, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 3 September 2008 (Case R 1378/2007-1), relating to invalidity proceedings between Kölla Hamburg Overseas Import GmbH & Co. KG and Sun World International LLC.

Operative part of the order

1.	There is no longer any need to adjudicate on the action.

2.	Sun World International LLC shall bear its own costs and pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Kölla Hamburg Overseas Import GmbH & Co. KG.

(1) OJ C 19, 24.1.2009.

19.12.2009

Official Journal of the European Union

C 312/29

Order of the President of the Court of First Instance of 29 October 2009 — Novácke chemické závody v Commission

(Case T-352/09 R)

(Interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application for suspension of enforcement of a measure - Lack of urgency)

2009/C 312/49

Language of the case: English

Parties

Applicant: Novácke chemické závody, a.s. (Nováky, Slovakia) (represented by: A. Černejová, lawyer)

Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and N. von Lingen, acting as Agents)

Re:

Application for suspension of enforcement of the Commission decision of 22 July 2009 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium-based reagents for the steel and gas industries), in so far as it concerns the applicant

Operative part of the order

1.	The application for interim measures is rejected.

2.	The costs are reserved.

19.12.2009

Official Journal of the European Union

C 312/30

Action brought on 26 September 2009 — Applied Microengineering v Commission

(Case T-387/09)

2009/C 312/50

Language of the case: English

Parties

Applicant: Applied Microengineering Ltd (Didcot, United Kingdom) (represented by: P. Walravens and J. De Wachter, lawyers)

Defendant: Commission of the European communities

Form of order sought

—	annul the Commission decision dated 16 July 2009 ordering the recovery of an amount of EUR 258 560,61 plus interests;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In the present application, the applicant seeks the annulment of the Commission decision C(2009)5797 of 16 July 2009 relating to the recovery of certain amount plus interests due by the applicant in the framework of the projects IST-199-11823 FOND MST (‘Formation of a New Design House for MST’) and IST-2000-28229 ANAB (‘Assessment of a New Anodic Bonder’) funded under specific programme implementing research, technological development and demonstration activities in the user-friendly information society (1998-2002).

The applicant puts forward seven pleas in support of its claims.

First, it submits that the Commission infringed the essential procedural requirements by failing to conduct a full and proper audit procedure. The applicant states that the Commission failed to inform it of the start of the audit procedure, of the closing of it and it did not take into account the objections submitted by the applicant. The applicant further claims that the Commission violated its rights of defence and the principle of sound administration and the duty of care.

Second, the applicant contends that the action of the Commission was time-barred at least for the payments made more that five years before the official start of the audit procedure.

Third, the applicant argues that the Commission has committed manifest errors of assessment by applying the auditor’s erroneous interpretation of the rules regarding the eligible costs.

Fourth, it claims that the Commission violated fundamental social rights and right to a fair remuneration by accepting hourly rates for workers below the minimum wage.

Fifth, the applicant contends that the Commission infringed the principle of legitimate expectations that the working method of average employment costs, as proposed by the applicant, was valid and the ‘target salaries’ would be considered an acceptable practice for the contractor.

Sixth, it argues that the Commission disregarded its obligation to state reasons as it fully relied on the audit report without considering the applicant’s comments or request for reopening the audit procedure.

Finally, the applicant submits that the Commission breached the principle of sound administration and the duty of care by sending letters to the wrong address and not investigating the arguments put forward by the applicant.

19.12.2009

Official Journal of the European Union

C 312/30

Action brought on 22 June 2009 — Labate v Commission

(Case T-389/09)

2009/C 312/51

Language of the case: English

Parties

Applicant: Kay Labate (Tarquinia, Italy) (represented by: I. Forrester, QC)

Defendant: Commission of the European Communities

Form of order sought

—	find that there has been a failure to act on the part of the Commission within the meaning of Article 232 EC;

—	order the Commission to take the measure necessary to comply with Tribunal’s order;

—	accord to the present action appropriate priority, so as to avoid burdening the file with a separate request for expedited treatment and to render judgment within six weeks;

—	order such other or further remedies as justice may require;

—	order the Commission to pay the costs of the present action.

Pleas in law and main arguments

On 20 February 2009, the applicant made a formal request for the purpose of Article 232 EC that the Commission take a decision recognising the occupational nature of her late husband’s lung cancer for the purpose of Article 73 of the Staff Regulations and the Joint Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease.

In the absence of any such decision or any adoption of position within the required time-limit, the applicant requests that the Court find that the Commission, by failing to take a decision within a reasonable time on her husband’s occupational disease recognition request, has failed to fulfil its obligations under Article 90 of the Staff Regulations and Article 23 of the Joint Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease and is therefore liable for failure to act within the meaning of Article 232 EC.

19.12.2009

Official Journal of the European Union

C 312/31

Action brought on 6 October 2009 — HSE v Commission

(Case T-399/09)

2009/C 312/52

Language of the case: English

Parties

Applicant: Holding Slovenske elektrarne d.o.o. (HSE) (Ljubljana, Slovenia) (represented by: F. Urlesberger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	annul Article 1 (g) of the contested decision in so far as it holds the applicant responsible of an infringement of Article 81 EC and Article 53 EEA Agreement;

—	annul Article 2 (i) of the contested decision;

—	in eventu, reduce the fine imposed upon the applicant in Article 2 (i) of the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment of Commission decision of 22 July 2009 (Case No COMP/39.396 — Calcium and magnesium reagents for the steel and gas industries) in so far as the Commission found the applicant liable of a single and continuous infringement of Article 81 EC and Article 53 EEA through market sharing, quotas, customer allocation, price fixing and exchanges of sensitive commercial information between suppliers of calcium carbide and magnesium granulates. Alternatively, the applicant seeks the reduction of the fine imposed upon it.

In support of its claims the applicant submits that the Commission infringed Article 81 EC and Regulation 1/2003 by committing the following errors in law:

First, the applicant claims that the Commission may not impute the conduct of TDR Metalurgija d.d. (TDR) to the applicant because HSE and TDR have never formed a single economic entity. In the absence of a rebuttable presumption of liability of the applicant (such presumption would have applied only if HSE had held 100 % in TDR), the Commission has failed to prove that HSE actually exercised decisive control over TDR.

Second, the applicant argues that the Commission erroneously applied to all parties an increase of the basic amount of the fine by 17 % for deterrence purposes. In the applicant’s opinion, the Commission should have taken into account that a deterrence factor is not justifiable in relation to HSE since the Commission decided to abstain from fining the direct perpetrator TDR (from whom a deterrence amount may have been appropriate) and the applicant was not directly involved in anticompetitive conduct.

Third, the applicant contends that the Commission disregarded the mitigating circumstances in calculating the amount of the fine as it has not taken into account that the applicant acted, if at all, merely negligently in failing to sufficiently control TDR’s business behaviour in order to avoid an infringement of competition law. Furthermore, the applicant claims that the Commission should have taken into account, as a mitigating circumstance, the fact that TDR as a company together with its collusive business habits were “imposed” on the applicant by way of a political decision on the part of the Slovenian government and that neither did the applicant choose to acquire TDR, nor did it choose to influence its business conduct towards participation in a cartel.

19.12.2009

Official Journal of the European Union

C 312/32

Action brought on 5 October 2009 — Donau Chemie v Commission

(Case T-406/09)

2009/C 312/53

Language of the case: German

Parties

Applicant: Donau Chemie AG (Vienna, Austria) (represented by: S. Polster, W. Brugger and M. Brodey, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Article 2 of the contested Commission Decision C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries, in so far as it concerns the applicant;

—	in the alternative, reduce noticeably and appropriately the amount of the fine imposed on the applicant by the Commission in the decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industry. The contested decision imposed a fine on the applicant and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

In support of its action, the applicant alleges infringement of the EC Treaty and of the rules concerning its application and submits, in particular, the following pleas in law:

—	Unlawful assessment of the basic amount of the fine as well as the additional amount to be determined pursuant to Paragraph 25 of the Guidelines on setting fines; (1)

—	unlawful failure to take into consideration mitigating circumstances in determining the fine;

—	unlawful application of the Commission notice on immunity from fines, (2) since the level of reduction of the fine from which the applicant benefited on the ground of evidence provided by it was too low;

—	infringement of the principles of equal treatment and proportionality in respect of determining the fine;

—	unlawful failure to consider a reduction of the fine to take account, in accordance with Paragraph 35 of the Guidelines on setting fines, of the undertaking’s inability to pay and/or, in accordance with Paragraph 37 of the Guidelines on setting fines, the particularities of the given case;

—	infringement of Article 253 EC on the grounds of failure to state the reasons for the contested decision.

(1) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

(2) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

19.12.2009

Official Journal of the European Union

C 312/32

Action brought on 9 October 2009 — Neubrandenburger Wohnungsgesellschaft v Commission

(Case T-407/09)

2009/C 312/54

Language of the case: German

Parties

Applicant: Neubrandenburger Wohnungsgesellschaft mbH (Neubrandenburg, Germany) (represented by: M. Núñez Müller and J. Dammann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Commission Decision D/53320 of 29 July 2009;

—	in the alternative, declare that the Commission failed to initiate the formal investigation procedure under Article 88(2) EC, in infringement of its duties under Article 88 EC and Regulation (EC) No 659/1999;

—	order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

The applicant contests Commission Decision D/53320 of 29 July 2009 concerning Case CP 141/2007 — Germany, Potential State aid granted in connection with the privatisation of apartments in Neubrandenburg. In that decision, the Commission took the preliminary view that the contracts against which the applicant had brought a complaint, which the applicant had entered into in connection with the privatisation of publicly-owned apartments in Neubrandenburg, did not contain State aid within the meaning of Article 87(1) EC.

In the alternative, the applicant has applied for a declaration that the Commission failed to fulfil its obligation to initiate the formal investigation procedure under Article 88(2) EC.

In support of its action for annulment, the applicant submits four pleas in law.

First, the applicant claims that the contested decision has to be annulled because the Commission failed to initiate the formal investigation procedure under Article 88(2) EC even though, during the preliminary examination following the applicant’s complaint, the Commission encountered serious difficulties as regards the assessment of the compatibility of the contested measure with the common market. Second, by finding that the contested contracts did not contain State aid, the Commission infringed Article 87(1) EC. Third, the Commission misused its powers. Fourth, the applicant claims that, in breach of Article 253 EC, the contested decision is inadequately reasoned.

In support of its alternative action for failure to act, the applicant submits three pleas in law.

First, the applicant claims in this respect that, although the applicant formally called on the Commission to act in accordance with Article 232(2) EC, the Commission failed to act, and that even though, following difficulties with the assessment of the contested contracts encountered during the preliminary examination, the Commission was under an obligation to initiate the formal investigation procedure under Article 88(2) EC. Second, the applicant claims that, by failing to initiate the formal investigation procedure, the Commission also infringed Article 4(4) of Regulation (EC) No 659/1999, (1) since, during the preliminary phase, the Commission had reason to doubt the compatibility of the contested contracts with the common market. Third, the applicant claims that the Commission infringed the allocation of jurisdiction among the Commission and national courts in the area of State aid control laid down in Articles 87 EC and 88 EC, because, pending the outcome of parallel proceedings between the applicant and the aid beneficiary before national courts, the Commission conducted the examination in a manner that was merely dilatory.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)

19.12.2009

Official Journal of the European Union

C 312/33

Action brought on 8 October 2009 — ancotel v OHIM — Acotel (ancotel)

(Case T-408/09)

2009/C 312/55

Language in which the application was lodged: German

Parties

Applicant: ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Acotel SpA (Rome, Italy)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 19 June 2009 in Case R 1385/2008 1;

—	Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: ancotel

Community trade mark concerned: the figurative mark ‘ancotel’ for services in Classes 35 and 38 (Application No 3 314 424)

Proprietor of the mark or sign cited in the opposition proceedings: Acotel SpA

Mark or sign cited in opposition: in particular the Italian figurative mark No 643 751 and the Community figurative mark No 1 442 268‘ACOTEL’ for goods and services in Classes 9 and 38

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is no likelihood of confusion between the trade marks at issue

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

19.12.2009

Official Journal of the European Union

C 312/34

Action brought on 7 October 2009 — Almamet v Commission

(Case T-410/09)

2009/C 312/56

Language of the case: English

Parties

Applicants: Almamet GmbH Handel mit Spänen und Pulvern aus Metall (Ainring, Germany) (represented by: S. Hautbourg and C. Renner, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	to declare the Commission Decision of 22 July 2009 (Case COMP/39.396) void, in so far as it concerns the applicant;

—	in the alternative, reduce the fine imposed by Article 2 of the decision,

—	to order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission’s decision C(2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) relating to a proceeding under Article 81 EC and Article 53 EEA by which the Commission found that a number of suppliers of calcium carbide and magnesium granulates engaged in market sharing, quotas and customer allocation, price fixing and exchanges of sensitive commercial information on a substantial part of the EEA market thereby infringing the aforementioned Treaty provisions (‘the contested decision’) in so far as it concerns the applicant and, in the alternative, the reduction of the fine imposed on it by Article 2 of the contested decision.

The applicant presents three pleas in law in support of its request for annulment:

With its first plea, the applicant submits that the Commission violated its rights of defence in using documents against it which were seized outside the scope of the Commission’s inspection decision.

With its second plea, the applicant claims that the Commission has failed to establish to the requisite legal standard of proof the existence of the infringement found in Article 1 of the contested decision as far as magnesium in concerned. The applicant considers that even if the documents which were illegally seized were admitted to the Commission’s file, they are fundamentally lacking precision and coherence. According to the applicant’s submissions, the remainder of the evidence consists of an oral leniency statement which not only lacks precision but also is a misrepresentation of certain facts and is contested by other parties. On this basis, the applicant considers that the burden of proof with regard to the alleged infringement continues to lie with the Commission.

With its third plea, the applicant contends that the Commission has committed a manifest error of assessment regarding the single and continuous nature of the infringement. Notably, there is no true substitutability between calcium carbide and magnesium granulates. Moreover, the applicant claims that there was no common overall plan for the two products proved by the existence of distinct meetings for each product.

In the alternative, the applicant presents four further pleas in support of its request for a reduction of the fine imposed by Article 2 of the contested decision.

With its fourth plea, the applicant claims that the Commission infringed points 23 and 26 of the Leniency Notice (1) in refusing the applicant a reduction under the said notice. The applicant considers that the elements contained in its leniency application represent information of significant added value. In particular, the applicant considers that the Commission was not entitled to refuse a reduction of the fine on the sole basis that its application did not contain any information on the alleged magnesium infringement since this infringement is not part of the procedure.

With its fifth plea, the applicant submits that the Commission infringed Article 81 EC and Article 23(2) of Regulation (EC) No 1/2003 (2) as well as point 32 of the Fining Guidelines (3) by setting the final amount of the fine at a level exceeding 10 % of its last audited turnover. The applicant contends that the Commission based itself on the applicant’s pro forma turnover figures of 2008 for the purpose of calculating the amount of the fine instead of its last audited turnover for 2007. In addition, the applicant considers that the commission should have applied the 20 % reduction based on point 37 of the Fining Guidelines after the calculation of 10 % legal maximum.

With its sixth plea, the applicant submits that the Commission infringed the principle of proportionality in fixing an excessive amount of the fine as far as it is concerned. The applicant claims that imposing a fine of an amount that results in a negative book value or reduces a company’s book value to zero is manifestly disproportionate. In addition, the fine imposed exceeds the financial capacity of a dealer like the applicant which is operating with very high-value products and very low profit margins. Finally, the applicant considers that the reduction of 20 % applied by the Commission does not sufficiently take into account the applicant’s specific situation explicitly acknowledged by the Commission, still leaving the fine at a disproportionate level.

With its seventh plea, the applicant submits that the Commission committed a manifest error of appraisal in considering that is did not meet the conditions of point 35 of the Fining Guidelines. The applicant considers that the Commission fixed the amount of the fine at a level which will irretrievably jeopardise its economic viability and cause all its assets to lose their value. In addition, the applicant contends that the commission committed an error of appraisal in considering that there was no specific social and economic context to be taken into account of in the applicant’s case.

(1) Commission Notice on Immunity from fines and reduction of fines in cartel cases (Text with EEA relevance) (OJ 2006 C 298, p. 17)

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

(3) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2)

19.12.2009

Official Journal of the European Union

C 312/35

Action brought on 13 October 2009 — Terezakis v Commission

(Case T-411/09)

2009/C 312/57

Language of the case: English

Parties

Applicant: Ioannis Terezakis (represented by: B. Lombart, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

annul the Commission decision in the form of a letter dated 3 August 2009 received by the applicant on 10 August 2009, refusing to disclose to the latter some parts and the annexes of certain letters exchanged between the European Anti-Fraud Office (OLAF) and the Greek Ministry of Finances regarding possible tax irregularities in connexion with the construction of Spata airport in Athens, Greece,

—	order that the costs of, and occasioned by these proceedings, be borne by the respondent.

Pleas in law and main arguments

The applicant seeks the annulment of the Commission’s decision of 3 August 2009 which was notified to the applicant on 10 August 2009 refusing to disclose to the latter some parts and the annexes of certain letters exchanged between the European Anti- Fraud Office (OLAF) and the Greek Ministry of Finances regarding possible tax irregularities in connexion with the construction of the Athens international airport at Spata, on the basis of the following grounds.

The applicant claims, first, that the contested decision suffers from a manifest error in law and an error in the appreciation of facts insofar as the Commission wrongly interpreted and applied Article 4(2), first indent, of Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents. The applicant submits that the Commission merely invoked the exception to public access relating to the need to protect the commercial secrets in the abstract, in order to refuse the disclosure of certain parts of the documents concerned, without pleading specific grounds pertaining to the risk of effectively undermining the protection of commercial interests of the undertakings involved.

The applicant moreover submits that the Commission violated Article 1 of the abovementioned Regulation and the principle of widest possible access to documents held by the Commission set out in paragraph (a) of this Article as well as the case law of Community Courts.

Furthermore, the applicant claims that the Commission committed a manifest error of law by failing to inform the applicant of the grounds on which it based its decision. It is submitted that the Commission violated the obligation to state reasons enshrined in Article 253 EC by simply referring to the exceptions of Article 4(2), first indent, of Regulation (EC) No 1049/2001, in order to refuse the requested access.

Finally, the applicant contends that the Commission wrongly concluded that the annexes to the letters to which the applicant requested access were in the applicant’s possession, departing from an erroneous interpretation that the documents requested were identical to those held by the applicant. Hence, the applicant submits that the contested decision is vitiated by a manifest error in law insofar as the Commission abstained to apply the provisions of Regulation (EC) No 1049/2001 and in particular, its Article 4.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

19.12.2009

Official Journal of the European Union

C 312/35

Action brought on 14 October 2009 — CEA v Commission

(Case T-412/09)

2009/C 312/58

Language of the case: French

Parties

Applicant: Commissariat à l’énergie atomique (CEA) (Paris, France) (represented by: J. García-Gallardo Gil-Fournier, M. Arias Díaz and C. Humpe, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Acknowledge receipt of the application (application, authority to represent the applicant, together with copies and documents) and declare it admissible;

—	examine the application lodged for and on behalf of CEA by its legal representatives;

—

pursuant to Article 230 EC, annul the Commission’s decision — notified to CEA by a letter dated 29 July 2009 — refusing to treat the ‘indemnités de départ à la retraite’ (retirement allowances; ‘IDR’) paid by CEA as eligible indirect costs and to grant CEA a certificate on the accounting methodology;

—

in the alternative, declare, pursuant to Article 238 EC, (i) that the IDR is an eligible cost in accordance with the contractual provisions of the 7th Research Framework Programme, and (ii) that the European Community has failed to comply with its contractual commitments towards CEA in relation to the 7th Research Framework Programme;

—	order the Commission to pay the costs.

Pleas in law and main arguments

Principally, by its action on the basis of Article 230 EC, the Commissariat à l’énergie atomique (CEA) seeks the annulment of the Commission’s final decision, notified to CEA on 29 July 2009, refusing to treat the retirement allowances paid by CEA as eligible indirect costs and to grant CEA a certificate on the accounting methodology so that it can declare its indirect personnel costs in order to obtain reimbursement of costs incurred during the implementation of projects which are co-financed in connection with the 7th Research Framework Programme.

CEA takes the view that the Commission’s decision that the retirement allowances do not constitute eligible indirect costs is based on errors of law and manifest errors of assessment of the facts, and that the Commission has failed to have regard to the principles of good administration, legal certainty, proportionality and the protection of legitimate expectations.

In the alternative, CEA seeks a declaration on the basis of Article 238 EC that the Commission has failed to comply with its contractual commitments towards CEA by refusing to treat the retirement allowances paid by CEA as eligible costs and, accordingly, to reimburse them.

19.12.2009

Official Journal of the European Union

C 312/36

Action brought on 14 October 2009 — Henkel v OHIM — JLO Holding (LIVE)

(Case T-414/09)

2009/C 312/59

Language in which the application was lodged: German

Parties

Applicant: Henkel AG & Co. KGaA (Düsseldorf, Germany) (represented by: C. Milbradt, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: JLO Holding Company LLC (Santa Monica, United States of America)

Form of order sought

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 609/2008-1 insofar as it made an order for revocation of the Community trade mark No 984 245‘LIVE’ for the goods, soaps, perfumery, cosmetic products and make-up;

—	order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘LIVE’ for goods in Class 3 (Community trade mark No 984 245)

Proprietor of the Community trade mark: Henkel AG & Co. KGaA

Applicant for the declaration of invalidity: JLO Holding Company LLC

Decision of the Cancellation Division: Partial revocation of the Community trade mark

Decision of the Board of Appeal: Partial annulment of the Cancellation Division's decision and partial revocation of the Community trade mark

Pleas in law: Infringement of Articles 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009 (1), on the ground that it was proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor for the product group, soups, perfumery, cosmetic products and make-up

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

19.12.2009

Official Journal of the European Union

C 312/37

Action brought on 16 October 2009 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

(Case T-419/09)

2009/C 312/60

Language in which the application was lodged: French

Parties

Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany)

Form of order sought

—	annul the decision of the First Board of Appeal of OHIM of 5 August 2009 declaring the mark AK 47 to be invalid because of its descriptive character on the basis of Article 51(1)(a), a legal basis not referred to in the action,

—

order, in accordance with Articles 87(2) and 91 of the Rules of Procedure, OHIM to pay the costs, including costs incurred by the applicant for the present proceedings, in particular the costs of translation of documents, lawyer’s fees, and, if costs of travel and accommodation are appropriate; the Court is asked to assess that sum at EUR 20 000.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘AK 47’ for goods in Class 28 — Community trade mark No 4 528 378.

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co. KommanditGesellschaft

Decision of the Cancellation Division: rejection of the application for a declaration of invalidity of the mark concerned

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

Pleas in law:

The legal basis, namely Article 51(1)(a) of Regulation (EC) No 40/94 [now article 52(1) (a) of Regulation (EC) No 207/2009] on which the annulment of the mark was founded because of its descriptive character, was never referred to in the pleadings before the First Board of Appeal and in any event the assessment of the descriptive character of the mark is incorrect.

19.12.2009

Official Journal of the European Union

C 312/37

Action brought on 19 October 2009 — BSA v OHIM — Loblaws (PRÉSIDENT)

(Case T-420/09)

2009/C 312/61

Language in which the application was lodged: French

Parties

Applicant: BSA (Paris, France) (represented by: D. Masson, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Loblaws, Inc.

Form of order sought

—	Annul the decision of 17 August 2009 of the Fourth Board of Appeal of OHIM, (Case R 1744/2008-4),

—	Order OHIM to pay the entire costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BSA

Community trade mark concerned: the figurative mark ‘PRÉSIDENT’ for goods and services in Classes 5, 29, 30 and 42 — application for registration No 2 135 200

Proprietor of the mark or sign cited in the opposition proceedings: Loblaws, Inc.

Mark or sign cited in opposition: the French word mark ‘President’s Choice’ for goods in Classes 5, 30, 31 and 32 and the Community figurative mark ‘PRESIDENT’S CHOICE’ for goods in Classes 30, 31 and 32 (Community trade mark No 1 872 407)

Decision of the Opposition Division: partial upholding of the opposition

Decision of the Board of Appeal: dismissal of appeal as inadmissible

Pleas in law: infringement of Article 59 of Regulation (EC) No 40/94 [now Article 60 of Regulation (EC) No 207/2009] and of Article 71 of Regulation (EC) No 2868/95, (1) and of the principle of the right to be heard in accordance with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1)

19.12.2009

Official Journal of the European Union

C 312/38

Action brought on 22 October 2009 — Dashiqiao Sanqiang Refractory Materials v Council

(Case T-423/09)

2009/C 312/62

Language of the case: French

Parties

Applicant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (Dashiqiao City, China) (represented by: J.-F. Bellis and R. Luff, lawyers)

Defendant: Council of the European Union

Form of order sought

—

annul the anti-dumping duty imposed with respect to the applicant by Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China (OJ 2009 L 240, p. 7), in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of the basic regulation, that Chinese export VAT was not refunded;

—	order the Council to pay the costs.

Pleas in law and main arguments

By this action, the applicant, a company established in China, seeks the annulment of Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China, (1) in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (2) (basic regulation), that Chinese export VAT was not refunded.

The applicant puts forward two pleas in support of its action.

First, the applicant submits that the method used by the Commission in the review which gave rise to the contested regulation to deal with the fact that export VAT was not refunded infringes the principle of fair comparison between the export price and the normal value laid down by Article 2(10) of the basic regulation. Instead of deducting from the export price the non-refunded amount of export VAT, as it had done in the original investigation, the Commission, relying on an incorrect interpretation of Article 2(10)(b) of the basic regulation, compared the export price with the normal value on a VAT-inclusive basis.

Second, the applicant submits that the Regulation is also vitiated by an infringement of Article 11(9) of the basic regulation since the method applied to take account of the fact that VAT was not refunded in the comparison between the export price and the normal value differs radically from that applied in the original investigation without any valid justification.

(1) OJ 2009 L 240, p. 7.

(2) OJ 1996 L 56, p. 1.

19.12.2009

Official Journal of the European Union

C 312/38

Action brought on 14 October 2009 — Goodyear Dunlop Tyres UK Ltd v OHIM — Sportfive (QUALIFIER)

(Case T-424/09)

2009/C 312/63

Language in which the application was lodged: German

Parties

Applicant: Goodyear Dunlop Tyres UK Ltd (Birmingham, United Kingdom) (represented by: M. Graf, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Sportfive GmbH & Co. KG (Cologne, Germany)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 August 2009 in case R 1291/2008 4;

—	Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Goodyear Dunlop Tyres UK Ltd

Community trade mark concerned: the word mark “QUALIFIER’ for goods in Class 12 (Application No 4 877 262)

Proprietor of the mark or sign cited in the opposition proceedings: Sportfive GmbH & Co. KG

Mark or sign cited in opposition: Community word mark No 4 017 836 and German word mark No 30 415 017.1 ‘Qualifiers 2006’, German word/figurative mark No 30 414 610.2 ‘2006 QUALIFIERS’, the German word mark No 30 515 033.2 ‘Qualifiers 2008’ and German word/figurative mark Nr. 30 565 616.3 ‘2008 QUALIFIERS’, all registered inter alia for goods in Class 12

Decision of the Opposition Division: Allow the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1) in that there is a likelihood of confusion between the two marks

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

19.12.2009

Official Journal of the European Union

C 312/39

Action brought on 14 October 2009 — Honda Motor v OHIM — Blok (BLAST)

(Case T-425/09)

2009/C 312/64

Language in which the application was lodged: English

Parties

Applicant: Honda Motor Co., Ltd. (Tokyo, Japan) (represented by: M. Graf, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Hendrik Blok (Oudenaarde, Belgium)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 1097/2008-1;

—	Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘BLAST’, for goods in classes 7 and 12

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Community trade mark registration of the word mark ‘BLAST’ for goods and services in classes 7, 35 and 37; Benelux trade mark registration of the word mark ‘BLAST’ for goods and services in classes 7, 35 and 37

Decision of the Opposition Division: Allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned.

19.12.2009

Official Journal of the European Union

C 312/39

Action brought on 22 October 2009 — centrotherm Clean Solutions v OHIM — Centrotherm Systemtechnik (CENTROTHERM)

(Case T-427/09)

2009/C 312/65

Language in which the application was lodged: German

Parties

Applicant: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany) (represented by: O. Löffel, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Centrotherm Systemtechnik GmbH (Brilon, Germany)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of OHIM of 25 August 2009 in Case R 6/2008-4, in so far as the application for a declaration of revocation was dismissed in respect of the following goods:

—	Class 11 — Heating exhausts; chimney flues; boiler pipes for heating installations; brackets for gas burners; mechanical parts for heating installations; mechanical parts for gas installations; accumulators; chimney blowers;

—	Class 17 — Pipe links; pipe sockets; pipe fittings; tubes; all of the above goods not made out of metal;

—	Class 19 — Pipes; piping, in particular for construction purposes; branch pipes; chimney pipes;

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘CENTROTHERM’ for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: Centrotherm Systemtechnik GmbH

Applicant for the declaration of invalidity: The applicant

Decision of the Cancellation Division: Revocation of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark

Pleas in law: Infringement of Article 51(1)(a) of Regulation No 207/2009 (1) in conjunction with Rule 40(5) and Rule 22(2) and (3) of Regulation (EC) No 2868/95, (2) in so far as the proof of use submitted by the proprietor of the trade mark was found to be sufficient so as to establish a genuine use of the trade mark at issue for the purposes of Article 15 of Regulation No 207/2009.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

19.12.2009

Official Journal of the European Union

C 312/40

Action brought on 29 October 2009 — TTNB v OHIM — March (Tila March)

(Case T-443/09)

2009/C 312/66

Language in which the application was lodged: French

Parties

Applicant: TTNB SARL (represented by: J.-M.Moiroux, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM: Juan Carmen March (Madrid, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of OHIM of 20 August 2009 in Case R 1538/2008-2 and authorise the registration of the mark applied for;

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Tamara Taichman, the applicant’s predecessor

Community trade mark concerned: the word mark ‘Tila March’ for goods in Classes 3, 18 and 25 — application No 5 402 722

Proprietor of the mark or sign cited in the opposition proceedings: Carmen March Juan

Mark or sign cited in opposition: the Spanish word mark ‘CARMEN MARCH’ for goods and services in Classes 3, 18, 24, 25, 35 and 38. The opposition was brought against registration of the goods in Classes 3, 18 and 25

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: annulment of the decision of the opposition division

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) since there is no likelihood of confusion between the conflicting marks.

19.12.2009

Official Journal of the European Union

C 312/40

Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)

(Case T-434/09)

2009/C 312/67

Language in which the application was lodged: German

Parties

Applicant: Centrotherm Systemtechnik GmbH (Brilon, Germany) (represented by: J. Albrecht, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of 25 August in Case R 6/2008-4, in so far as the application for a declaration of revocation was upheld;

—	order the applicant to pay the costs

—	order the possible intervener to pay the costs of the intervention.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark CENTROTHERM for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: centrotherm Clean Solutions GmbH & Co KG

Decision of the Cancellation Division: Revocation of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark

Pleas in law: Infringement of Article 57(5) in conjunction with Article 51(1) and (2) of Regulation (EC) No 207/2009 (1), as the defendant did not adequately assess proof of use which was submitted within the time-limit;

Infringement of the duty to examine the facts of its own motion;

Infringement of Article 76(1) and (2) and Article 57(1) of Regulation No 207/2009 and of Rule 40(5) of Regulation (EC) No 2868/95 (2), since the defendant did not take into consideration the proof of use submitted with the grounds of appeal;

Incorrect exercise of discretion, since the evidence submitted, even in the event that it was submitted late, is to be taken into consideration;

In the alternative, inapplicability of Rule 40(5) of Regulation No 2868/95 under Article 241 EC, since this rule infringes Article 76(1) and Article 57(1) in conjunction with Article 51(1) and Article 162(1) of Regulation No 207/2009, Article 202 EC and general principles of Community law, in particular the legal principle of proportionality, the principle of property rights and the right to a fair trial.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

19.12.2009

Official Journal of the European Union

C 312/41

Action brought on 22 October 2009 — SE.RI.FO v Commission and Education, Audiovisual and Culture Executive Agency

(Case T-438/09)

2009/C 312/68

Language of the case: Italian

Parties

Applicant: Serifo Srl (Naples, Italy) (represented by: R. de Lorenzo, P. Kivel Mazuy and G. Ruberto, lawyers)

Defendants: Commission of the European Communities and Education, Audiovisual and Culture Executive Agency (‘EACEA’)

Form of order sought

—

Annul the measure, the date and particulars of which are not known, by which, in the context of the Lifelong Learning Programme, the EACEA approved the list of projects selected for Community co-financing from the transversal programme ‘KA3 ICT Multilateral Projects’, and the reserve list, in so far as the project ‘V-3DAS’ No 505690-2009-LLP-IT-KA3-KA3MP, submitted by Se.Ri.Fo s.r.l., was included in the reserve list instead of in the list of projects selected for funding.

—	Annul the notice of 21 September 2009, received on 22 September 2009, by which the EACEA communicated to Se.Ri.Fo. s.r.l. the assessments of the ‘V-3DAS’ project issued by the experts external to the EACEA and the scores awarded.

Pleas in law and main arguments

The applicant took part in the Community Lifelong Learning Programme — Call for Proposals 2009, submitting to the EACEA the V-3DAS project in the context of the transversal programme Key Activity 3 ‘ICT’.

The assessment of the applications was undertaken by experts external to the Agency, in accordance with the Guide for Applicants 2009. After obtaining 30.5 points out of a maximum of 40 (76.3 % of the maximum score) — as compared with the 31 points necessary in order to be included in the list of projects selected for funding (77.5 % of the maximum score) — the project submitted by the applicant was included in the reserve list, which may be used for the award of additional grants if funds become available following withdrawal of approved projects or following an increase in the budget for the Programme.

In support of its claims, the applicant submits that the assessments of its project by EACEA’s external experts, and consequently the points awarded by them for each of the award criteria, are vitiated by the inadequate reasoning given, the misapplication of the assessment criteria and the inherently contradictory and illogical nature of the evaluations made. Those irregularities played a decisive role in the exclusion — by no more than 0.5 points — of the applicant’s project from the list of projects selected for funding.

In that connection, it should be pointed out that Article 109 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the financial regulation applicable to the general budget of the European Communities states, in relation to the award of grants, that ‘The award of grants shall be subject to the principles of transparency and equal treatment’.

19.12.2009

Official Journal of the European Union

C 312/42

Action brought on 3 November 2009 — Azienda Agricola Bracesco v Commission

(Case T-440/09)

2009/C 312/69

Language of the case: Italian

Parties

Applicant: Azienda Agricola Bracesco Srl (Orgiano, Italy) (represented by: F. Tosello, S. Rizzioli and C. Pauly, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—

Order the Commission, in accordance with Article 235, and the second paragraph of Article 288, of the EC Treaty, to pay Azienda Agricola Bracesco srl, now in liquidation, damages in the amount of EUR 335 000, or such other sum as may be determined in the course of the proceedings or, in any event, as may be held to be fair, together with interest at the statutory rate until due settlement.

—	Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The present application for compensation for damage, based on the non-contractual liability of the European Communities, is made in the context of the Community measures to combat avian influenza.

In that connection, it is pointed out that, following the disruption to the European poultrymeat market brought about by the fall in prices resulting from the reduction in consumer demand — which was in turn linked to the spread of avian influenza — the Commission decided to take action by means of Regulation No 1010/2006, (1) which makes provision for support measures for poultry producers.

However, notwithstanding the fact that the definition of poultry in the Community animal health legislation covers quail, poultry producers involved in the raising and slaughtering of that species have been excluded, without any reasons being given, from receiving the aid.

The applicant — Azienda Agricola Bracesco srl in liquidation — submits that it has suffered wrongful damage as a result of the conduct of the Commission, which constitutes a manifest and serious infringement of one of the fundamental principles of the Community legal order, that is to say, the principle of equal treatment.

(1) Commission Regulation (EC) No 1010/2006 of 3 July 2006 on certain exceptional market support measures in the eggs and poultry sector in certain Member States (OJ 2006 L 180, p. 3).

19.12.2009

Official Journal of the European Union

C 312/43

Order of the Civil Service Tribunal (Second Chamber) of 22 October 2009 — Aayhan and Others v European Parliament

(Case F-10/08) (1)

(No need to adjudicate)

2009/C 312/70

Language of the case: French

Parties

Applicants: Laleh Aayhan (Strasbourg, France) and Others (represented by: R. Blindauer, lawyer)

Defendant: European Parliament (represented by: M. Mustapha-Pacha and R. Ignătescu, later by R. Ignătescu and S. Seyr, Agents)

Re:

Annulment of the European Parliament's decision of 25 October 2007 rejecting the complaint brought by the applicants on 21 June 2007 for the purpose of having all the fixed-term contracts between them and the Parliament converted into a single contract for an indefinite period.

Operative part of the order

1.	There is no need to adjudicate in Case F-10/08 Aayhan and Others v Parliament;

2.	The applicants are ordered to bear their own costs and to pay the European Parliament's costs.

(1) OJ C 64, 8.03.2008, p. 70

19.12.2009

Official Journal of the European Union

C 312/43

Action brought on 17 September 2009 — Marcuccio v Commission

(Case F-78/09)

2009/C 312/71

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the Commission’s decision rejecting the applicant’s request for reimbursement of the costs incurred in Case T-18/04, which the defendant was ordered to pay by judgment of the Court of First Instance of 10 June 2008, and for an order that the defendant pay compensation for the material and non-material damage suffered by the applicant.

Form of order sought

—	Annul the decision, in whatever form, by which the defendant rejected the request of 22 September 2008;

—	annul, in so far as necessary, the decision, in whatever form, by which the complaint of 8 April 2009 was rejected;

—

order the defendant to pay to the applicant the sum of EUR 15 882,31, together with default interest at the rate of 10 % per annum, with annual capitalisation, with effect from the date of the request of 22 September 2008 to the present date, by way of compensation for the material damage suffered by the applicant as a result of the contested decision and arising in the abovementioned period;

—

order the defendant to pay to the applicant, pro bono et ex aequo, the sum of EUR 6 500,00 or such other sum as the Tribunal may consider just and equitable, by way of compensation for the non-material damage suffered by the applicant, including damage to his quality of life, as a result of the contested decision and arising in the period between the date when decision was adopted and the present;

—

order the defendant to pay to the applicant, for each day between tomorrow and the day on which the request of 22 September 2008 is granted in full and without any exception and the appropriate decisions or relevant acts, without any exception, are implemented, the sum of EUR 5 or such other sum as the Tribunal may consider just and equitable, to be paid on the first day of each month in respect of rights accrued during the previous month, by way of compensation for the damage suffered by the applicant as a result of the contested decision and arising in the abovementioned period;

—	order the defendant to repay to the applicant all costs, fees and other expenses incurred in the proceedings.

19.12.2009

Official Journal of the European Union

C 312/44

Action brought on 28 September 2009 — Marcuccio v Commission

(Case F-81/09)

2009/C 312/72

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the Commission’s decision rejecting in part the applicant’s request for annulment of the Commission’s decision concerning the calculation of the default interest payable in respect of the invalidity allowance awarded to him between June 2005 and April 2008.

Form of order sought

—

Annul the decision, in whatever form, by which the defendant rejected in part the request of 8 September 2008, that is to say, annul the decision, in whatever form, by which the Commission calculated and paid to the applicant default interest to which he was entitled in respect of each of the parts of the monthly amounts of the invalidity allowance awarded to him for the period from June 2005 to April 2008, which were paid to him in a single payment on 29 May 2009, with a value date of 28 May 2008, instead of at the end of each month of the period in question, being an amount less than would have been calculated and paid if the criteria set out in the request of 8 September 2008 had been applied, namely if: (a) 29 May 2008 had been regarded as the dies ad quem; (b) the first day of the month following that in which each of the parts of the monthly amounts in question should have been paid to the applicant had been regarded as the dies a quo; (c) the rate of interest applied had been 10 % per annum, with annual capitalisation;

—

annul those parts of the memorandum of 16 December 2008 which are unfavourable to the applicant, that is to say, those parts in which the Commission rejected in part the request of 8 September 2008, namely those parts in which the EC calculated and paid less interest than would have been calculated and paid if the criteria set out in the request of 8 September 2008 had been applied;

—

order the defendant to pay to the applicant the difference between the amount of interest calculated by applying the criteria set out in the request of 8 September 2008 and the amount of interest actually paid, if necessary and appropriate by not applying to this dispute, pursuant to Article 241 EC (formerly Article 184), those parts of the Financial Regulation applicable to the general budget of the European Communities concerning the criteria for determining the amount and rate of interest to be paid on a debt of the EC to a person to whom the Staff Regulations apply and the capitalisation of interest;

—

order the defendant to pay to the applicant interest at the rate of 10 % per annum, with annual capitalisation, with effect from 29 May 2008 until actual payment, on the difference in the interest, at a rate of greater than EUR 1, if necessary and appropriate by not applying to this dispute, pursuant to Article 241 EC (formerly Article 184), those parts of the Financial Regulation concerning the criteria for determining the amount and rate of interest to be paid on a debt of the EC to a person to whom the Staff Regulations apply and the capitalisation of interest;

—	order the Commission to pay all the costs of the proceedings;

—	in so far as necessary, annul the decision, in whatever form, by which the complaint of 18 February 2009 and the memorandum of 29 May 2009 were rejected.

19.12.2009

Official Journal of the European Union

C 312/44

Action brought on 16 October 2009 — Larue and Seigneur v European Central Bank

(Case F-84/09)

2009/C 312/73

Language of the case: French

Parties

Applicants: Emmanuel Larue and Olivier Seigneur (Frankfurt-am-Main, Germany) (represented by: L. Levi, lawyer)

Defendant: European Central Bank

Subject-matter and description of the proceedings

Application for annulment of the applicants’ pay slips for January 2009.

Form of order sought

—	annul the pay slip for January 2009;

—	to the extent necessary, annul the decisions, dated 20 April 2009 and 6 August 2009 respectively, rejecting the applicants’ requests for re-consideration and the complaints submitted by them;

—

by way of measures of organisation of procedure, call upon the defendant to produce its administrative file and, at very least, the documents originating from DG-H which were submitted to the Executive Board concerning the General Salary Adjustment (GSA) for 2009, the Executive Board's proposal for GSA for 2009, the documents originating from DG-H which were submitted to the Governing Council concerning the GSA for 2009 and the decision of the Governing Council concerning the GSA for 2009;

—

order the defendant to pay compensation for the damage suffered by applicants consisting of EUR 5 000 for each applicant to compensate them for their loss of purchasing power since 1 January 2009 and of arrears of salary corresponding to a 1.5 % pay increase from 1 January 2009, with interest on the latter from the date at which they fall due until the date of payment. The rate of interest should be two points higher than the rate fixed by the European Central Bank for its main refinancing operations which was applicable during the period in question;

—	order the defendant to pay the costs.

19.12.2009

Official Journal of the European Union

C 312/45

Action brought on 26 October 2009 — Gagalis v Council

(Case F-89/09)

2009/C 312/75

Language of the case: French

Parties

Applicant: Spyridon Gagalis (Kraainem, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Action for annulment of the defendant's decision refusing to reimburse the applicant 75 % of all the costs relating to a thermal cure pursuant to Article 73 of the Staff Regulations.

Form of order sought

—	annul the defendant's decision of 9 December 2008, transmitted to the applicant on 22 December 2008, refusing to reimburse him 75 % of all the costs relating to a thermal cure pursuant to Article 73 of the Staff Regulations;

—	annul the decision of 15 July 2009, transmitted to the applicant on 17 July 2009, rejecting his complaint concerning the reimbursement of 75 % of all the costs relating to a thermal cure pursuant to Article 73 of the Staff Regulations;

—	order the Council to pay the applicant and additional amount of EUR 1 551,38 with interest for delayed payment;

—	order the Council of the European Union to pay the costs.

		ISSN 1725-2423 doi:10.3000/17252423.C_2009.312.eng
Official Journal of the European Union		C 312

English edition	Information and Notices	Volume 52 19 December 2009

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2009/C 312/01	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 297, 5.12.2009	1