26.1.2013

Official Journal of the European Union

C 26/2

Judgment of the Court (First Chamber) of 6 December 2012 — AstraZeneca AB, AstraZeneca plc v European Commission, European Federation of Pharmaceutical Industries and Associations (EFPIA)

(Case C-457/10 P) (1)

(Appeals - Competition - Abuse of dominant position - Market in anti-ulcer medicines - Abuse of procedures relating to supplementary protection certificates for medicinal products and of marketing authorisation procedures for medicinal products - Misleading representations - Deregistration of marketing authorisations - Obstacles to the marketing of generic medicinal products and to parallel imports)

2013/C 26/02

Language of the case: English

Parties

Appellants: AstraZeneca AB, AstraZeneca plc (represented by: M. Brealey QC, M. Hoskins QC, D. Jowell, Barrister and F. Murphy, Solicitor)

Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre, É. Gippini Fournier and J. Bourke, Agents), European Federation of Pharmaceutical Industries and Associations (EFPIA) (represented by: M. Van Kerckhove, advocaat)

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber, extended composition) of 1 July 2010 in Case T-321/05 AstraZeneca v Commission, in which the General Court annulled, in part, the Commission Decision of 15 June 2005 relating to a proceeding under Article 82 EC and Article 54 EEA (Case COMP/A.37.507/F3 — AstraZeneca) which imposed a fine of EUR 60 million on the appellants for abuse of the patent system and the procedure for placing pharmaceutical products on the market in order to prevent or delay the arrival on the market of competing generic medicinal products — Definition of the market — Interpretation of Article 19 of Regulation (EEC) No 1786/92 concerning the creation of a supplementary protection certificate for medicinal products

Operative part of the judgment

The Court:

1.	Dismisses the main appeal and cross-appeals;

2.	Orders AstraZeneca AB and AstraZeneca plc to pay the costs relating to the main appeal;

3.	Orders the European Federation of Pharmaceutical Industries and Associations (EFPIA) to pay the costs of its cross-appeal and to bear its own costs relating to the main appeal;

4.	Orders the European Commission to bear its own costs relating to its cross-appeal.

(1) OJ C 301, 6.11.2010.

26.1.2013

Official Journal of the European Union

C 26/2

Judgment of the Court (Third Chamber) of 22 November 2012 — Usha Martin Ltd v Council of the European Union, European Commission

(Case C-552/10 P) (1)

(Appeal - Dumping - Regulation (EC) No 121/2006 - Imports of steel ropes and cables originating, inter alia, in India - Decision 2006/38/EC - Regulation (EC) No 384/96 - Article 8(9) - Undertakings offered in connection with anti-dumping proceedings)

2013/C 26/03

Language of the case: English

Parties

Appellant: Usha Martin Ltd (represented by: V. Akritidis and E. Petritsi, dikigoroï, and by F. Crespo, avocat)

Other parties to the proceedings: Council of the European Union (represented by: B. Driessen, acting as Agent, G. Berrisch, Rechtsanwalt, and N. Chesaites, Barrister), European Commission (represented by T. Scharf and S. Thomas, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 9 September 2010 in Case T-119/06: Usha Martin Ltd v Council of the European Union and European Commission in which the General Court dismissed an action, on the one hand, for annulment of Commission Decision of 22 December 2005 amending Commission Decision 1999/572/EC accepting undertakings in connection with the anti-dumping proceedings concerning imports of steel wire rope and cables originating in, inter alia, India (OJ 2006 L 22, p. 54) and, on the other hand, for annulment of Council Regulation (EC) No 121/2006 amending Council Regulation (EC) No 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in, inter alia, India (OJ 2006 L 22, p. 1)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Usha Martin Ltd to pay the costs of the appeal proceedings.

(1) OJ C 55, 19.2.2011.

26.1.2013

Official Journal of the European Union

C 26/3

Judgment of the Court (Grand Chamber) of 27 November 2012 — Italian Republic v European Commission, Republic of Lithuania, Hellenic Republic

(Case C-566/10 P) (1)

(Appeal - Rules on languages - Notices of open competitions for the recruitment of administrators and assistants - Publication in full in three official languages - Language of the tests - Choice of the second language among three official languages)

2013/C 26/04

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri, Agent, P. Gentili, avvocato dello Stato)

Other parties to the proceedings: European Commission (represented by: J. Currall and J. Baquero Cruz, Agents, assisted by A. Dal Ferro, avvocato), Republic of Lithuania, Hellenic Republic (represented by: A. Samoni-Rantou, S. Vodina and G. Papagianni, Agents)

Re:

Appeal against the judgment delivered by the General Court (Sixth Chamber) on 13 September 2010 in Joined Cases T-166/07 and T-285/07 Italy v Commission by which the General Court dismissed an application for annulment of Notices of Open Competition EPSO/AD/94/07 (OJ 2007 C 45 A, p. 3), EPSO/AST/37/07 (OJ 2007 C 45 A, p. 15) and EPSO/AD/95/07 (OJ 2007 C 103 A, p. 7)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 13 September 2010 in Joined Cases T-166/07 and T-285/07;

Annuls the notices of open competitions EPSO/AD/94/07 to constitute a reserve pool of Administrators (AD 5) in the field of information, communication and the media, EPSO/AST/37/07 to constitute a reserve pool of Assistants (AST 3) in the field of communication and information and EPSO/AD/95/07 to constitute a reserve pool of Administrators (AD 5) in the field of information science (library/documentation);

3.	Orders the European Commission to pay the costs of the Italian Republic and to bear its own costs in both sets of proceedings;

4.	Orders the Hellenic Republic and the Republic of Lithuania to bear their own costs.

(1) OJ C 63, 26.02.2011.

26.1.2013

Official Journal of the European Union

C 26/3

Judgment of the Court (Fourth Chamber) of 22 November 2012 — Commission v Federal Republic of Germany

(Case C-600/10) (1)

(Failure of a Member State to fulfil obligations - Free movement of capital - Taxation of dividends and interest paid to pension funds and pension insurance schemes - Treatment of dividends and interest paid to non-resident institutions - Deduction of operating costs directly linked to the receipt of income in the form of dividends and interest - Burden of proof)

2013/C 26/05

Language of the case: German

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, Agents)

Defendant: Federal Republic of Germany (represented by: T. Henze and J. Möller, Agents)

Interveners in support of the defendant: French Republic (represented by: G. de Bergues and N. Rouam, Agents), Kingdom of the Netherlands (represented by: C. Wissels and C. Schillemans, Agents), Republic of Finland (represented by: M. Pere, Agent), Kingdom of Sweden (represented by: A. Falk and S. Johannesson, Agents), United Kingdom of Great Britain and Northern Ireland (represented by: H. Walker, Agent, and by G. Facenna, Barrister)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 63 TFEU and of Article 40 of the EEA Agreement — National legal provisions on the taxation of dividends and interest paid to pension funds and pension insurance schemes, granting certain fiscal advantages only in respect of dividends and interest paid to resident institutions

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to bear its own costs and to pay those incurred by the Federal Republic of Germany;

3.	Orders the French Republic, the Kingdom of the Netherlands, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 80, 12.3.2011.

26.1.2013

Official Journal of the European Union

C 26/4

Judgment of the Court (Third Chamber) of 22 November 2012 — E.ON Energie AG v European Commission

(Case C-89/11 P P) (1)

(Appeals - Action for annulment of a Commission decision relating to a fine for breach of seal - Burden of proof - Distortion of the evidence - Obligation to state reasons - Amount of the fine - Unlimited jurisdiction - Principle of proportionality)

2013/C 26/06

Language of the case: German

Parties

Appellant: E.ON Energie AG (represented by: A. Röhling, F. Dietrich and R. Pfromm, Rechtsanwälte)

Other party to the proceedings: European Commission (represented by: A. Bouquet, V. Bottka and R. Sauer, Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 15 December 2010 — E.ON Energie v Commission (T-141/08) in which the General Court dismissed the action for annulment of Commission Decision C(2008) 377 final of 30 January 2008 relating to a fine pursuant to Article 23(1)(e) of Council Regulation (EC) No 1/2003 for breach of seal — Breach of general principles of law, such as the presumption of innocence, the principle of ‘in dubio pro reo’ and of proportionality, and the rules relating the burden and taking of evidence — Breach of the obligation to state reasons

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders E.ON Energie AG to pay the costs.

(1) OJ C 152, 21.5.2011.

26.1.2013

Official Journal of the European Union

C 26/4

Judgment of the Court (First Chamber) of 22 November 2012 (reference for a preliminary ruling from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu — Poland) — Bank Handlowy w Warszawie SA, PPHU ‘ADAX’/Ryszard Adamiak v Christianapol sp. z o.o.

(Case C-116/11) (1)

(Judicial cooperation in civil matters - Regulation (EC) No 1346/2000 - Insolvency proceedings - Concept of ‘closure of insolvency proceedings’ - Possibility for a court before which secondary insolvency proceedings have been brought to examine the debtor’s insolvency - Possibility of opening winding-up proceedings as secondary insolvency proceedings where the main proceedings are sauvegarde proceedings)

2013/C 26/07

Language of the case: Polish

Referring court

Sąd Rejonowy Poznań-Stare Miasto w Poznaniu

Parties to the main proceedings

Applicants: Bank Handlowy w Warszawie SA, PPHU ‘ADAX’/Ryszard Adamiak

Defendant: Christianapol sp. z o.o.

Re:

Reference for a preliminary ruling — Sąd Rejonowy Poznań-Stare Miasto w Poznaniu — Interpretation of Articles 4(1) and (2)(j) and 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) — Secondary insolvency proceedings — Right of the court having jurisdiction to open such proceedings in order to examine the debtor’s insolvency

Operative part of the judgment

Article 4(2)(j) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, as amended by Council Regulation (EC) No 788/2008 of 24 July 2008, must be interpreted as meaning that it is for the national law of the Member State in which insolvency proceedings have been opened to determine at which moment the closure of those proceedings occurs.

Article 27 of Regulation No 1346/2000, as amended by Regulation No 788/2008, must be interpreted as meaning that it permits the opening of secondary insolvency proceedings in the Member State in which the debtor has an establishment, where the main proceedings have a protective purpose. It is for the court having jurisdiction to open secondary proceedings to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, in keeping with the principle of sincere cooperation.

Article 27 of Regulation No 1346/2000, as amended by Regulation No 788/2008, must be interpreted as meaning that the court before which an application to have secondary insolvency proceedings opened has been made cannot examine the insolvency of a debtor against which main proceedings have been opened in another Member State, even where the latter proceedings have a protective purpose.

(1) OJ C 152, 21.5.2011.

26.1.2013

Official Journal of the European Union

C 26/5

Judgment of the Court (Third Chamber) of 6 December 2012 (references for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Bundesrepublik Deutschland v Karen Dittrich (C-124/11), Bundesrepublik Deutschland v Robert Klinke (C-125/11) and Jörg-Detlef Müller v Bundesrepublik Deutschland (C-143/11)

(Joined Cases C-124/11, C-125/11 and C-143/11) (1)

(Equal treatment in employment and occupation - National rules - Assistance granted to public servants in the event of illness - Directive 2000/78/EC - Article 3 - Scope - Concept of ‘pay’)

2013/C 26/08

Language of the cases: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Bundesrepublik Deutschland (C-124/11 and C-125/11), Jörg-Detlef Müller (C-143/11)

Defendants: Karen Dittrich (C-124/11), Robert Klinke (C-125/11), Bundesrepublik Deutschland (C-143/11)

Re:

References for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National legislation providing for assistance paid to public servants in case of illness excluding life partners from the members of the family who can be covered by the assistance in question — Equal treatment of workers in a registered partnership and married workers — Scope of Directive 2000/78/EC — Concept of remuneration

Operative part of the judgment

Article 3(1)(c) and 3(3) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that assistance granted to public servants in the event of illness, such as that granted to public servants of the Bundesrepublik Deutschland under the Law on federal public servants (Bundesbeamtengesetz), falls within the scope of that directive if it is the responsibility of the State, as a public employer, to finance it, this being a matter for the national court to determine.

(1) OJ C 269, 10.09.2011.

26.1.2013

Official Journal of the European Union

C 26/5

Judgment of the Court (First Chamber) of 22 November 2012 (reference for a preliminary ruling from the Schienen-Control Kommission — Austria) — Westbahn Management GmbH v ÖBB-Infrastruktur AG

(Case C-136/11) (1)

(Transport - Rail transport - Obligation of the railway infrastructure manager to provide railway undertakings in real time with all information concerning train movements, in particular information on delays to connecting trains)

2013/C 26/09

Language of the case: German

Referring court

Schienen-Control Kommission

Parties to the main proceedings

Applicant: Westbahn Management GmbH

Defendant: ÖBB-Infrastruktur AG

Re:

Reference for a preliminary ruling — Schienen-Control Kommission Wien — Interpretation of Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14) and of Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) — Obligation of the railway infrastructure manager to provide railway undertakings, in real time, with all information on train movements, including information on possible delays in connecting services

Operative part of the judgment

Article 8(2) of, in conjunction with Part II of Annex II to, Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations must be interpreted as meaning that the information on main connecting services must, in addition to scheduled departure times, also include delays to or cancellations of those connecting services, whichever railway undertaking operates them.

Article 8(2) of, in conjunction with Part II of Annex II to, Regulation No 1371/2007 and Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, must be interpreted as meaning that the infrastructure manager is required to make available to railway undertakings, in a non-discriminatory manner, real time data relating to trains operated by other railway undertakings, in so far as those trains constitute main connecting services within the meaning of Part II of Annex II to Regulation No 1371/2007.

(1) OJ C 173, 11.6.2011.

26.1.2013

Official Journal of the European Union

C 26/6

Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Joan Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV

(Case C-139/11) (1)

(Air transport - Compensation and assistance to passengers - Denied boarding and cancellation or long delays of flights - Period allowed for commencing proceedings)

2013/C 26/10

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Joan Cuadrench Moré

Defendant: Koninklijke Luchtvaart Maatschappij NV

Re:

Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Articles 5 and 6 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Time-limits for bringing proceedings not laid down — Article 35 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montreal Convention), approved by Council Decision of 5 April 2001 (OJ 2001 L 194, p. 38) — Applicable law

Operative part of the judgment

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined in accordance with the rules of each Member State on the limitation of actions.

(1) OJ C 179, 18.6.2011.

26.1.2013

Official Journal of the European Union

C 26/6

Judgment of the Court (Second Chamber) of 6 December 2012 (reference for a preliminary ruling from the Arbeitsgericht München — Germany) — Johann Odar v Baxter Deutschland GmbH

(Case C-152/11) (1)

(Equal treatment in employment and occupation - Directive 2000/78/EC - Prohibition against any discrimination on grounds of age or disability - Compensation on termination of employment - Social plan providing for a reduction in the amount of redundancy compensation paid to disabled workers)

2013/C 26/11

Language of the case: German

Referring court

Arbeitsgericht München

Parties to the main proceedings

Applicant: Johann Odar

Defendant: Baxter Deutschland GmbH

Re:

Reference for a preliminary ruling — Arbeitsgericht München — Interpretation of Articles 1, 6(1), second subparagraph, point (a), and 16 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National legislation making it possible to exclude from receipt of the benefits provided for under an occupational pension scheme workers in age brackets close to the age at which a right to a retirement pension arises — Prohibition on all discrimination based on age and disability

Operative part of the judgment

Articles 2(2) and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, a calculation is to be made of the compensation on the basis of the earliest possible date on which their pension will begin — unlike the standard method of calculation, which takes account in particular of the length of service — with the result that the compensation paid to those workers is lower than the compensation resulting from the application of that standard method, though still at least one half of the standard amount.

Article 2(2) of Directive 2000/78 must be interpreted as precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, the compensation to which they are entitled is calculated on the basis of the earliest possible date on which their pension will begin — unlike the standard formula, under which account is taken inter alia of the length of service — with the result that the compensation paid is lower than the standard formula compensation, although still at least one half thereof, and that alternative calculation method takes account of the possibility of receiving an early retirement pension on the ground of disability.

(1) OJ C 204, 9.7.2011.

26.1.2013

Official Journal of the European Union

C 26/7

Judgment of the Court (Third Chamber) of 29 November 2012 (references for a preliminary ruling from the Consiglio di Stato — Italy) — Econord SpA v Comune di Cagno (C-182/11), Comune di Varese, Comune di Solbiate (C-183/11), Comune di Varese

(Joined Cases C-182/11 and C-183/11) (1)

(Public service contracts - Directive 2004/18/EC - Contracting authority exercising over a legally distinct successful tenderer control similar to that exercised over its own departments - No obligation to carry out a tendering procedure in accordance with the rules of European Union law (‘in-house’ award) - Successful tenderer controlled jointly by several local authorities - Conditions for the applicability of an in-house award)

2013/C 26/12

Language of the cases: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Econord SpA

Defendants: Comune di Cagno (C-182/11), Comune di Varese, Comune di Solbiate (C-183/11), Comune di Varese

Re:

References for a preliminary ruling — Consiglio di Stato — Interpretation of Articles 49 TFEU and 56 TFEU — Procedures for the award of public service contracts — Award without a call for tenders — Contract for the provision of urban hygiene services awarded by two public authorities, outside any formal procedure for the award of public procurement contracts, to a company in which the contracting authorities hold share capital — No effective control exercised by those authorities over the company providing the services

Operative part of the judgment

Where, in their capacity as contracting authority, a number of public authorities jointly establish an entity with responsibility for carrying out their public service mission, or where a public authority subscribes to such an entity, the condition established by the case-law of the Court of Justice of the European Union to the effect that, in order to be exempted from their obligation to initiate a public tendering procedure in accordance with the rules of European Union law, those authorities must jointly exercise over that entity control similar to the control they exercise over their own departments, is fulfilled where each of those authorities not only holds capital in that entity, but also plays a role in its managing bodies.

(1) OJ C 211, 16.7.2011.

26.1.2013

Official Journal of the European Union

C 26/7

Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Brain Products GmbH v BioSemi VOF, Antonius Pieter Kuiper, Robert Jan Gerard Honsbeek, Alexander Coenraad Metting van Rijn

(Case C-219/11) (1)

(Reference for a preliminary ruling - Medical devices - Directive 93/42/EEC - Scope - Interpretation of the concept of ‘medical device’ - Product marketed for non-medical use - Investigation of a physiological process - Free movement of goods)

2013/C 26/13

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Brain Products GmbH

Defendants: BioSemi VOF, Antonius Pieter Kuiper, Robert Jan Gerard Honsbeek, Alexander Coenraad Metting van Rijn

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of the third indent of Article 1(2)(a) of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1), as amended by Directive 2007/47/EC of the European Parliament and the Council of 5 September 2007 (OJ 2007 L 247, p. 21) — Interpretation of the term ‘medical device’ — Application of the directive to an article which is intended for purposes of investigation of a physiological process and which is marketed for a non-medical purpose

Operative part of the judgment

The third indent of Article 1(2)(a) of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that the concept of ‘medical device’ covers an object conceived by its manufacturer to be used for human beings for the purpose of investigation of a physiological process only if it is intended for a medical purpose.

(1) OJ C 232, 6.8.2011.

26.1.2013

Official Journal of the European Union

C 26/8

Judgment of the Court (Third Chamber) of 29 November 2012 (reference for a preliminary ruling from the Curtea de Apel București — Romania) — SC Gran Via Moinești SRL v Agenția Națională de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București Sector 1

(Case C-257/11) (1)

(Directive 2006/112/EC - Value added tax - Articles 167, 168 and 185 - Right of deduction - Adjustment of deductions - Acquisition of land and buildings constructed on that land, with a view to demolishing the buildings and carrying out a construction project on the land)

2013/C 26/14

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: SC Gran Via Moinești SRL

Defendants: Agenția Națională de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București Sector 1

Re:

Reference for a preliminary ruling — Curtea de Apel București — Interpretation of Articles 167, 168 and 185(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right of deduction in respect of the VAT relating to the purchase of buildings scheduled for demolition with a view to carrying out a construction project — Economic activity prior carrying out a construction project, consisting in the initial investment expenditure for the purposes of implementing that project — Adjustment of the VAT deductions

Operative part of the judgment

Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those in the main proceedings, a company which has acquired land and buildings constructed on that land, for the purpose of demolishing the buildings and developing a residential complex on the land, has the right to deduct the value added tax relating to the acquisition of those buildings.

Article 185 of Directive 2006/112 must be interpreted as meaning that, in circumstances such as those in the main proceedings, the demolition of buildings, acquired together with the plot of land on which they were constructed, which is carried out with a view to developing a residential complex in place of those buildings does not result in an obligation to adjust the initial deduction of the value added tax relating to the acquisition of those buildings.

(1) OJ C 238, 13.8.2011.

26.1.2013

Official Journal of the European Union

C 26/8

Judgment of the Court (Second Chamber) of 29 November 2012 (reference for a preliminary ruling from the Administrativen sad Sofia-grad, Bulgaria) — Kremikovtzi AD v Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma

(Case C-262/11) (1)

(Accession of the Republic of Bulgaria to the European Union - EC-Bulgaria Association Agreement - Steel sector - Public aid for reconstruction granted prior to accession - Conditions - Viability of the recipients at the end of the restructuring period - Declaration of insolvency of a recipient following accession - Respective powers of the national authorities and the European Commission - National decision finding the existence of a public debt in the form of aid which has become unlawful - Decision EU-BG No 3/2006 - Annex V to the Act of Accession - Aid applicable following accession - Council Regulation (EC) No 659/1999 - Existing aid)

2013/C 26/15

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Kremikovtzi AD

Defendants: Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part (OJ 1994 L 358, p. 1), of Paragraph 1 of Annex V to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203), of Article 9(4) of Protocol 2 on products covered by the Treaty establishing the European Coal and Steel Community (ECSC), of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part (OJ 1995 L 317, p. 25) and of Article 14 of 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) — State aid for reconstruction granted prior to the accession of Bulgaria to the European Union to steel producers within the framework of a restructuring program — Decision finding the existence of a public debt consisting of State aid which has become unlawful following a declaration of insolvency on the part of the beneficiary — Respective competencies of the national authorities and of the European Commission to decide on the incompatibility with the common market of State aid and to seek its recovery as unlawful aid

Operative part of the judgment

Proceedings to recover public aid granted to Kremikovtzi AD before the Republic of Bulgaria’s accession to the European Union, aid measures which, following that accession, were not ‘applicable’ for the purposes of Annex V to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded, must, in the event of infringement of the conditions laid down in Article 9(4) of Protocol No 2 to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, concluded and approved on behalf of the Community by Decision 94/908/ECSC, EC, Euratom of the Council and the Commission of 19 December 1994, be based on Article 3 of the Additional Protocol to the Europe Agreement, as amended by Decision No 3/2006 of the EU-Bulgaria Association Council of 29 December 2006. In that context, the competent national authorities in the Republic of Bulgaria may, pursuant to the third paragraph of Article 3, adopt a decision to recover public aid which does not satisfy those conditions. A decision adopted by the Commission on the basis of the second paragraph of Article 3 of the Additional Protocol does not constitute a necessary prerequisite for the recovery of such aid by those authorities.

(1) OJ C 232, 6.8.2011.

26.1.2013

Official Journal of the European Union

C 26/9

Judgment of the Court (First Chamber) of 22 November 2012 (reference for a preliminary ruling from the High Court of Ireland) — M. M. v Minister for Justice, Equality and Law Reform, Ireland, Attorney General

(Case C-277/11) (1)

(Reference for a preliminary ruling - Common European Asylum System - Directive 2004/83/EC - Minimum standards for qualification for refugee status or subsidiary protection status - Article 4(1), second sentence - Cooperation of the Member State with the applicant to assess the relevant elements of his application - Scope - Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status - Observance of fundamental rights - Right to be heard)

2013/C 26/16

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: M. M.

Defendants: Minister for Justice, Equality and Law Reform, Ireland, Attorney General

Re:

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) — Application for subsidiary protection following refusal to grant refugee status — Proposal to reject application for subsidiary protection — Obligation to provide the applicant with the results of the assessment of his application before taking a final decision

Operative part of the judgment

The requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis obliged — before adopting its decision — to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard.

However, in the case of a system such as that established by the national legislation at issue in the main proceedings, a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. In such a system, the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.

(1) OJ C 226, 30.7.2011.

26.1.2013

Official Journal of the European Union

C 26/10

Judgment of the Court (Third Chamber) of 6 December 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — BONIK (EOOD) v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-285/11) (1)

(VAT - Directive 2006/112/EC - Right of deduction - Refusal)

2013/C 26/17

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: BONIK (EOOD)

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Re:

Reference for a preliminary ruling — Administrativen sad — Varna — Interpretation of Articles 14, 62, 63, 167, 168 and 178(a) and (b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Formalities laid down by Member States in relation to the right to deduct VAT — Measures taken to prevent certain forms of tax evasion or avoidance — Refusal of the right to deduct VAT in the case of a taxable person in receipt of intra-Community supplies, on the ground that there was no evidence that supplies of goods had actually been carried out as between the preceding suppliers, despite the existence of evidence establishing that supplies of goods had been carried out by the last supplier direct to the taxable person

Operative part of the judgment

Articles 2, 9, 14, 62, 63, 167, 168 and 178 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the case before the referring court, a taxable person may not be refused the right to deduct VAT in relation to a supply of goods on the ground that, in view of fraud or irregularities committed upstream or downstream of that supply, the supply is considered not to have actually taken place, where it has not been established on the basis of objective evidence that the taxable person knew, or should have known, that the transaction relied on as a basis for the right of deduction was connected with VAT fraud committed upstream or downstream in the chain of supply — a matter which it is for the referring court to determine.

(1) OJ C 238, 13.8.2011.

26.1.2013

Official Journal of the European Union

C 26/10

Judgment of the Court (Sixth Chamber) of 22 November 2012 (references for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — DIGITALNET OOD (C-320/11 and C-383/11), Tsifrova kompania OOD (C-330/11), M SAT CABLE AD (C-382/11) v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Joined Cases C-320/11, C-330/11, C-382/11 and C-383/11) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange)

2013/C 26/18

Language of the cases: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicants: DIGITALNET OOD (C-320/11 and C-383/11), Tsifrova kompania OOD (C-330/11), M SAT CABLE AD (C-382/11)

Defendant: Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

Re:

References for a preliminary ruling — Administrativen sad — Varna — Interpretation of 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), as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2008 L 291, p. 1) — Subheading No 8528 71 13 of the Combined Nomenclature (Apparatus with a microprocessor-based device incorporating a modem for gaining access to the internet, and having a function of interactive information exchange, also capable of receiving television signals (‘set-top boxes with communication function’)) or No 8521 90 00 (Other video recording or reproducing apparatus, whether or not incorporating a video tuner) — Apparatus capable of receiving television signals or serving as a modem for gaining access to the internet and having a function of interactive information exchange — Meaning of the concepts ‘internet’, ‘modem’ and ‘modulation and demodulation’ having regard to the Explanatory Notes to the Combined Nomenclature

Operative part of the judgment

The Combined Nomenclature set out in 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, respectively, by Commission Regulation (EC) No 1214/2007 of 20 September 2007, by Commission Regulation (EC) No 1031/2008 of 19 September 2008, and by Commission Regulation (EC) No 948/2009 of 30 September 2009, must be interpreted as meaning that, for the purposes of classification of goods under subheading 8528 71 13, a modem for gaining access to the internet is a device which, alone and without the intervention of any other apparatus or mechanism, is capable of accessing the internet and of ensuring interactivity and an exchange of information in both directions. It is solely the capacity to gain access to the internet, and not the technique used to achieve this, that is relevant for the purposes of classification under that subheading.

That Combined Nomenclature must be interpreted as meaning that the reception of television signals and the presence of a modem allowing access to the internet are two equivalent functions that apparatus must perform in order to be classified under subheading 8528 71 13. In the absence of one or other of those functions, that apparatus must be classified under subheading 8528 71 19.

Article 78(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that ex post inspection of goods and the subsequent change in their tariff classification may be made on the basis of written documents without the customs authorities being required to physically check those goods.

(1) OJ C 252, 27.8.2011.

OJ C 298, 8.10.2011.

26.1.2013

Official Journal of the European Union

C 26/11

Judgment of the Court (Second Chamber) of 6 December 2012 (references for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — O, S v Maahanmuuttovirasto (C-356/11), and Maahanmuuttovirasto v L (C-357/11)

(Joined Cases C-356/11 and C-357/11) (1)

(Citizenship of the Union - Article 20 TFEU - Directive 2003/86/EC - Right to family reunification - Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals - Permanent right of residence in that Member State of the mothers who have been granted sole custody of the Union citizens - Change in composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals - Applications for family reunification in the Member State of origin of the Union citizens - Refusal of the right of residence to the new spouses on the ground of lack of sufficient resources - Right to respect for family life - Taking into consideration of the children’s best interests)

2013/C 26/19

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicants: O, S (C-356/11), Maahanmuuttovirasto (C-357/11)

Defendants: Maahanmuuttovirasto (C-356/11), L (C-357/11)

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 20 TFEU — Right to move and reside freely within the territory of the Member States — Right to family reunification — Residence permit in a Member State for a third-country national, resident without a permanent residence permit in the Member State, in a situation in which that person’s spouse, a third-country national, resides lawfully in that Member State and has a child with the nationality of that Member State, and the person is not the child’s parent and does not have parental responsibility for the child — Situation in which the spouses also have a child together, of third-country nationality, who resides with them and the spouse’s child in the Member State concerned

Operative part of the judgment

Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain.

Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements.

(1) OJ C 269, 10.9.2011.

26.1.2013

Official Journal of the European Union

C 26/12

Judgment of the Court (Eighth Chamber) of 22 November 2012 (reference for a preliminary ruling from the Juzgado de lo Social de Barcelona — Spain) — Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

(Case C-385/11) (1)

(Article 157 TFEU - Directive 79/7/EEC - Directive 97/81/EC - Framework Agreement on part-time work - Directive 2006/54/EC - Contributory retirement pension - Equal treatment for male and female workers - Indirect discrimination on grounds of sex)

2013/C 26/20

Language of the case: Spanish

Referring court

Juzgado de lo Social de Barcelona

Parties to the main proceedings

Applicant: Isabel Elbal Moreno

Defendants: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

Re:

Reference for a preliminary ruling — Juzgado de lo Social de Barcelona — Interpretation of Clause 4(1), of the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, Annex to Council Directive 97/81/EC of 15 December 1997 (OJ 1998 L 14, p. 9), of Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) and of Article 4 of Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23) — Concept of employment condition — Contributory retirement pension calculated on the basis of the Spanish statutory rules and contributions paid by and on behalf of the employee — Discrimination against part-time workers

Operative part of the judgment

Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, legislation of a Member State which requires a proportionally greater contribution period from part-time workers, the vast majority of whom are women, than from full-time workers for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of their work.

(1) OJ C 290, 1.10.2011.

26.1.2013

Official Journal of the European Union

C 26/12

Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Pedro Espada Sánchez, Alejandra Oviedo Gonzáles, Lucía Espada Oviedo, Pedro Espada Oviedo v Iberia Líneas Aéreas de España SA

(Case C-410/11) (1)

(Air transport - Montreal Convention - Article 22(2) - Liability of carriers in respect of baggage - Limits of liability in the event of the destruction, loss, damage or delay of baggage - Shared baggage belonging to a number of passengers - Baggage checked in by one of those passengers)

2013/C 26/21

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicants: Pedro Espada Sánchez, Alejandra Oviedo Gonzáles, Lucía Espada Oviedo, Pedro Espada Oviedo

Defendant: Iberia Líneas Aéreas de España SA

Re:

Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Articles 3(3) and 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), (Council Decision 2001/539/EC, OJ 2001 L 194, p. 38) — Air carrier liability in respect of the carriage of passengers and their baggage by air — Limits of liability in the event of the destruction, loss, damage or delay of baggage

Operative part of the judgment

Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001, read in conjunction with Article 3(3) of that convention, must be interpreted as meaning that the right to compensation and the limits to a carrier’s liability in the event of loss of baggage apply also to a passenger who claims that compensation by virtue of the loss of baggage checked in in another passenger’s name, provided that that lost baggage did in fact contain the first passenger’s items.

(1) OJ C 290, 1.10.2011.

26.1.2013

Official Journal of the European Union

C 26/13

Judgment of the Court (Third Chamber) of 29 November 2012 — United Kingdom of Great Britain and Northern Ireland v European Commission

(Case C-416/11 P) (1)

(Appeal - Directive 92/43/EEC - Conservation of natural habitats - List of sites of Community importance for the Mediterranean biogeographical region - Inclusion in the list of a site proposed by the Kingdom of Spain - Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas - Action for annulment - Measure merely confirmatory)

2013/C 26/22

Language of the case: English

Parties

Appellant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent, D. Wyatt QC and V. Wakefield, Barrister)

Other party to the proceedings: European Commission (represented by: D. Recchia and K. Mifsud Bonnici, Agents)

Intervener in support of the Commission: Kingdom of Spain (represented by: N. Díaz Abad and A. Rubio González, acting as Agents)

Re:

Appeal brought against the order of the General Court (Seventh Chamber) of 24 May 2011 in Case T-115/01 United Kingdom of Great Britain and Northern Ireland v European Commission [2011] ECR II-0000, by which that court dismissed as inadmissible an action for partial annulment of Commission Decision 2010/45/EC of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region [notified under number C(2009) 10406], to the extent that it retains on the list a site called ‘Estrecho Oriental’ (ES6120032), proposed by Spain, which includes an area of British Gibraltar territorial waters and an area of the high seas

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs;

3.	Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 298, 8.10.2011.

26.1.2013

Official Journal of the European Union

C 26/13

Judgment of the Court (First Chamber) of 6 December 2012 (reference for a preliminary ruling from the Tribunale di Rovigo — Italy) — Criminal proceedings against Md Sagor

(Case C-430/11) (1)

(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - National legislation providing for a fine which may be replaced by an order for expulsion or home detention)

2013/C 26/23

Language of the case: Italian

Referring court

Tribunale di Rovigo

Party in the main proceedings

Md Sagor

Re:

Reference for a preliminary ruling — Tribunale di Rovigo — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and Article 4(3) TEU — National legislation imposing a fine of between EUR 5 000 and EUR 10 000 on a foreign national who unlawfully enters or stays in the national territory — Whether it is possible for an illegal stay to constitute a criminal offence — Whether it is possible to replace the fine with immediate expulsion for a period of not less than five years or a penalty entailing curtailment of liberty (‘permanenza domiciliare’) — Member States’ obligations during the period for transposition of a directive

Operative part of the judgment

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as:

—	not precluding Member State legislation, such as that at issue in the main proceedings, which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order, and

—

precluding Member State legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that the enforcement of that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.

(1) OJ C 25, 28.1.2012.

26.1.2013

Official Journal of the European Union

C 26/14

Judgment of the Court (Fourth Chamber) of 6 December 2012 — European Commission v Verhuizingen Coppens NV

(Case C-441/11 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Cartel involving three individual agreements - Single and continuous infringement - Failure to prove that an undertaking party to an individual agreement was aware of the other individual agreements - Annulment, in whole or in part, of the Commission decision - Articles 263 TFEU and 264 TFEU)

2013/C 26/24

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

Other party to the proceedings: Verhuizingen Coppens NV (represented by: J. Stuyck and I. Buelens, advocaten)

Re:

Appeal brought against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Case T-210/08 Verhuizingen Coppens v Commission by which the General Court annulled Article 1(i) and Article 2(k) of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 16 June 2011 in Case T-210/08 Verhuizingen Coppens v Commission;

Annuls Article 1(i) of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) in so far as, by that provision, the European Commission does not simply find that Verhuizingen Coppens NV had participated in the agreement on a system of false quotes, known as ‘cover quotes’, from 13 October 1992 to 29 July 2003, but finds that company liable for the agreement on a system of financial compensation for rejected offers or for not quoting at all, known as ‘commissions’, and attributes to it liability for the single and continuous infringement;

3.	Sets the amount of the fine imposed on Verhuizingen Coppens NV under Article 2(k) of Decision C(2008) 926 final at EUR 35 000;

4.	Orders the European Commission, in addition to bearing its own costs at first instance and on appeal, to pay two thirds of the costs incurred by Coppens in both those sets of proceedings;

5.	Orders Coppens to bear one third of its own costs at first instance and on appeal.

(1) OJ C 331, 12.11.2011.

26.1.2013

Official Journal of the European Union

C 26/14

Judgment of the Court (Fifth Chamber) of 6 December 2012 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Société d’Exportation de Produits Agricoles SA (SEPA) v Hauptzollamt Hamburg-Jonas

(Case C-562/11) (1)

(Agriculture - Regulation (EEC) No 3665/87 - Article 11 - Export refunds - Request for a refund in respect of exported goods which do not confer entitlement to a refund - Administrative penalty)

2013/C 26/25

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant on a point of law: Société d’Exportation de Produits Agricoles SA (SEPA)

Respondent on a point of law: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) as amended by Commission Regulation (EC) No 495/97 of 18 March 1997 (OJ 1997 L 77, p. 12), in particular Article 11(1) thereof — Request for an export refund in a situation in which no refund is provided for — Whether a penalty may be imposed on the person making the request

Operative part of the judgment

Article 11(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 and by Commission Regulation (EC) No 495/97 of 18 March 1997, must be interpreted as meaning that, subject to the exemptions laid down in the third subparagraph of Article 11(1), the reduction referred to in point (a) of the first subparagraph of Article 11(1) must be applied, inter alia, in the case where it turns out that the goods for export in respect of which a refund was requested were not of sound and fair marketable quality, notwithstanding the fact that the exporter acted in good faith and correctly described the nature and origin of those goods.

(1) OJ C 39, 11.02.2012.

26.1.2013

Official Journal of the European Union

C 26/15

Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Probst v mr.nexnet GmbH

(Case C-119/12) (1)

(Electronic communications - Directive 2002/58/EC - Article 6(2) and (5) - Processing of personal data - Traffic data necessary for billing and debt collection - Debt collection by a third company - Persons acting under the authority of the providers of public communications networks and electronic communications services)

2013/C 26/26

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Josef Probst

Defendant: mr.nexnet GmbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) — Passing of traffic data relating to subscribers and users, processed and held by the provider of a public communications network — National legislation permitting such data to be passed to the assignee of a claim for payment in respect of telecommunications services, in the case where contractual stipulations safeguard confidential treatment of the data passed and make it possible for each party to check that the other has ensured that those data are protected

Operative part of the judgment

Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as authorising a provider of public communications networks and of publicly-accessible electronic communications services to pass traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims, and as authorising that assignee to process those data on condition, first, that the latter acts under the authority of the service provider as regards the processing of those data and, second, that that assignee confines itself to processing the traffic data necessary for the purposes of recovering the claims assigned.

Irrespective of the classification of the contract of assignment, the assignee is deemed to act under the authority of the service provider, within the meaning of Article 6(5) of Directive 2002/58, where, for the processing of traffic data, it acts exclusively on the instructions and under the control of that provider. In particular, the contract concluded between them must contain provisions capable of guaranteeing the lawful processing, by the assignee, of the traffic data and of enabling the service provider to ensure, at all times, that that assignee is complying with those provisions.

(1) OJ C 174, 16.06.2012.

26.1.2013

Official Journal of the European Union

C 26/15

Judgment of the Court (Full Court) of 27 November 2012 (reference for a preliminary ruling from the Supreme Court — Ireland) — Thomas Pringle v Government of Ireland, Ireland and the Attorney General

(Case C-370/12) (1)

(Stability mechanism for the Member States whose currency is the euro - Decision 2011/199/EU - Amendment of Article 136 TFEU - Validity - Article 48(6) TEU - Simplified revision procedure - ESM Treaty - Economic and monetary policy - Competence of the Member States)

2013/C 26/27

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: Thomas Pringle

Defendants: Government of Ireland, Ireland and the Attorney General

Re:

Reference for a preliminary ruling — Supreme Court — Validity of European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (OJ 2011 L 91, p. 1) — Competences of the Union — Right of euro area Member States to conclude an international agreement such as the Treaty establishing the European stability mechanism

Operative part of the judgment

Examination of the first question referred has disclosed nothing capable of affecting the validity of European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.

Articles 4(3) TEU and 13 TEU, Articles 2(3) TFEU, 3(1)(c) and (2) TFEU, 119 TFEU to 123 TFEU and 125 TFEU to 127 TFEU, and the general principle of effective judicial protection do not preclude the conclusion between the Member States whose currency is the euro of an agreement such as the Treaty establishing the European stability mechanism between the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Republic of Finland, concluded at Brussels on 2 February 2012, or the ratification of that treaty by those Member States.

3.	The right of a Member State to conclude and ratify that Treaty is not subject to the entry into force of Decision 2011/199.

(1) OJ C 303, 6.10.2012.

26.1.2013

Official Journal of the European Union

C 26/16

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 October 2012 — W.P. Willems; other party: Burgemeester van Nuth

(Case C-446/12)

2013/C 26/28

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: W.P. Willems

Other party: Burgemeester van Nuth

Questions referred

Is Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), valid in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms?

If the answer to Question 1 is to the effect that Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), is valid, must Article 4(3) of the Regulation, in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(f) of the Privacy Directive, (1) read in conjunction with Article 6(1)(b) of the Privacy Directive, be interpreted to mean that, when the Member States give effect to Regulation No 2252/2004, there should be a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of the document?

(1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

26.1.2013

Official Journal of the European Union

C 26/16

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 5 October 2012 — H.J. Kooistra; other party: Burgemeester van Skarsterlân

(Case C-447/12)

2013/C 26/29

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: H.J. Kooistra

Other party: Burgemeester van Skarsterlân

Questions referred

Must Article 1(3) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009, be understood to mean that the Regulation does not apply to identity cards, such as the Netherlands NIK [Nederlandse identiteitskaart], issued by Member States to their nationals, regardless of their period of validity and regardless of the possibilities of using them as travel documents?

If it follows from the answer to Question 1 that Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), does indeed apply to identity cards such as the Netherlands identity card, having regard to the possibilities of using such cards as travel documents, is Article 1(2) of Regulation No 2252/2004 valid in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms?

If the answer to Question 2 is to the effect that Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), is valid, must Article 4(3) of the Regulation, in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(f) of the Privacy Directive, (1) read in conjunction with Article 6(1)(b) of the Privacy Directive, be interpreted to mean that, when the Member States give effect to Regulation No 2252/2004, there should be a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of the document?

26.1.2013

Official Journal of the European Union

C 26/17

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 8 October 2012 — M. Roest; other party: Burgemeester van Amsterdam

(Case C-448/12)

2013/C 26/30

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: M. Roest

Other party: Burgemeester van Amsterdam

Questions referred

26.1.2013

Official Journal of the European Union

C 26/18

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 8 October 2012 — L.J.A. van Luijk; other party: Burgemeester van Den Haag

(Case C-449/12)

2013/C 26/31

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: L.J.A. van Luijk

Other party: Burgemeester van Den Haag

Questions referred

26.1.2013

Official Journal of the European Union

C 26/18

Reference for a preliminary ruling from the Landgericht Krefeld (Germany) lodged on 9 October 2012 — NIPPONKOA Insurance Co. (Europe) Ltd v Inter-Zuid Transport B.V.

(Case C-452/12)

2013/C 26/32

Language of the case: German

Referring court

Landgericht Krefeld

Parties to the main proceedings

Applicant: NIPPONKOA Insurance Co. (Europe) Ltd

Defendant: Inter-Zuid Transport B.V.

Questions referred

Does Article 71 of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude an interpretation of a convention which is exclusively autonomous or are the objectives and principles of the regulation also to be taken into account when applying such conventions?

Does Article 71 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude an interpretation of a convention by which an action for a declaration decided in one Member State does not preclude an action for performance brought later in another Member State, where that convention also makes an interpretation possible in that respect under Article 27 of Regulation No 44/2001?

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

26.1.2013

Official Journal of the European Union

C 26/19

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 10 October 2012 — Minister voor Immigratie, Integratie en Asiel and O; other party: B

(Case C-456/12)

2013/C 26/33

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellants: Minister voor Immigratie, Integratie en Asiel and O

Other party: B

Questions referred

[…]

Should Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, as regards the conditions governing the right of residence of members of the family of a Union citizen who have third-country nationality, be applied by analogy, as in the judgments of the Court of Justice of the European Communities in Case C-370/90 Surinder Singh (2) and in Case C-291/05 Eind, (3) where a Union citizen returns to the Member State of which he is a national after having resided in another Member State in the context of Article 21(1) of the Treaty on the Functioning of the European Union, and as the recipient of services within the meaning of Article 56 of that Treaty?

If so, is there a requirement that the residence of the Union citizen in another Member State must have been of a certain minimum duration if, after the return of the Union citizen to the Member State of which he is a national, the member of his family who is a third-country national wishes to gain a right of residence in that Member State?

3.	If so, can that requirement then also be met if there was no question of continuous residence, but rather of a certain frequency of residence, such as during weekly residence at weekends or during regular visits? […]

As a result of the time which elapsed between the return of the Union citizen to the Member State of which he is a national and the arrival of the family member from a third country in that Member State, in circumstances such as those of the present case, has there been a lapse of possible entitlement of the family member with third-country nationality to a right of residence derived from Union law?

(1) OJ 2004 L 158, p. 77.

(2) Judgment of 7 July 1992, [1992] ECR I-4265.

(3) Judgment of 11 December 2007, [2007] ECR I-10719.

26.1.2013

Official Journal of the European Union

C 26/19

Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 10 October 2012 — S and Minister voor Immigratie, Integratie en Asiel; other party: G

(Case C-457/12)

2013/C 26/34

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellants: S and Minister voor Immigratie, Integratie en Asiel

Other party: G

Questions referred

…

Can a member, having third-country nationality, of the family of a Union citizen who lives in the Member State of which he is a national but who works in another Member State for an employer established in that other Member State derive, in circumstances such as those of the present case, a right of residence from Union law?

…

Can a member, having third-country nationality, of the family of a Union citizen who lives in the Member State of which he is a national but who, in the course of his work for an employer established in that same Member State, travels to and from another Member State derive, in circumstances such as those of the present case, a right of residence from Union law?

26.1.2013

Official Journal of the European Union

C 26/20

Reference for a preliminary ruling from the Cour constitutionnelle (Belgium), lodged on 22 October 2012 — Institut professionnel des agents immobiliers (IPI) v Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte

(Case C-473/12)

2013/C 26/36

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicant: Institut professionnel des agents immobiliers (IPI)

Defendants: Geoffrey Englebert, Immo 9 SPRL, Grégory Francotte

Questions referred

Is Article 13(1)(g), in fine, of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1) to be interpreted as meaning that it leaves the Member States free to choose whether or not to provide for an exception to the immediate obligation to inform set out in Article 11(1) if this is necessary in order to protect the rights and freedoms of others, or are the Member States subject to restrictions in this matter?

Do the professional activities of private detectives, governed by national law and exercised in the service of authorities authorised to report to the judicial authorities any infringement of the provisions protecting a professional title and organising a profession, come, depending on the circumstances, within the exception referred to in Article 13(1)(d) and (g), in fine, of Directive 95/46?

3.	In the event of a negative reply to Question 2, is Article 13(1)(d) and (g), in fine, of Directive 95/46 compatible with Article 6(3) of the Treaty on European Union, more specifically with the principle of equality and non-discrimination?

(1) OJ 1995 L 281, p. 31.

26.1.2013

Official Journal of the European Union

C 26/20

Reference for a preliminary ruling from the Fővárosi Törvényszék (formerly Fővárosi Bíróság) (Hungary) lodged on 22 October 2012 — UPC DTH S.á.r.l. v A Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

(Case C-475/12)

2013/C 26/38

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék (formerly Fővárosi Bíróság)

Parties to the main proceedings

Applicant: UPC DTH S.á.r.l.

Defendant: A Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

Questions referred

May Article 2(c) of the Framework Directive, that is to say, Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002, as amended by Directive 2009/140/EC (2) of the European Parliament and of the Council of 25 November 2009, be interpreted as meaning that a service by which a service provider supplies, for consideration, conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite is to be classified as an electronic communications service?

2.	May the Treaty on the Functioning of the European Union be interpreted as meaning that the principle of the free movement of services is applicable to the service described in the first question, in the case of a service supplied from Luxembourg to Hungary?

May the Treaty on the Functioning of the European Union be interpreted as meaning that, in the case of the service described in the first question, the country of destination, to which the service is sent, is entitled to limit the supply of that type of services by requiring that the [supplier of the] service has to be registered in that Member State and has to be established as a branch or independent legal entity, and allowing this type of services to be supplied only through the establishment of a branch or independent legal entity?

May the Treaty on the Functioning of the European Union be interpreted as meaning that administrative proceedings relating to the services described in the first question, regardless of the Member State in which the undertaking supplying that service operates or is registered, will be subject to the administrative authority of the Member State which has jurisdiction on the basis of the place in which the service is supplied?

May Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 (Framework Directive) be interpreted as meaning that the service described in the first question must be classified as an electronic communications service, or must such a service be classified as a conditional access service supplied using the conditional access system defined in Article 2(f) of the Framework Directive?

6.	On the basis of all the foregoing, may the relevant provisions be interpreted as meaning that the service provider described in the first question must be classified as a provider of electronic communications services pursuant to European Community law?

(1) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

(2) Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (Text with EEA relevance) (OJ 2009 L 337, p. 37).

26.1.2013

Official Journal of the European Union

C 26/22

Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria), lodged on 24 October 2012 — Armin Maletic, Marianne Maletic v lastminute.com GmbH and TUI Österreich GmbH

(Case C-478/12)

2013/C 26/40

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Appellants: Armin Maletic, Marianne Maletic

Respondents: lastminute.com GmbH, TUI Österreich GmbH

Question referred

Is Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (1) which confers jurisdiction on the courts for the place where the consumer is domiciled, to be interpreted as meaning that, in the case where the other party (here, a travel agent having its seat abroad) has recourse to a contracting partner (here, a travel operator having its seat in the home country), Article 16(1) of Regulation No 44/2001 is, for the purpose of proceedings brought against those two parties, also applicable to the contracting partner in the home country?

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

26.1.2013

Official Journal of the European Union

C 26/22

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 25 October 2012 — Minister van Financiën; other party: X BV

(Case C-480/12)

2013/C 26/41

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Minister van Financiën

Other party: X BV

Questions referred

(a)

Must Articles 203 CCC [Community Customs Code] and 204 CCC, (1) read in conjunction with Article 859 (in particular Article 859(2)(c)) CCIP [Regulation implementing the Community Customs Code], (2) be interpreted as meaning that the (mere) exceeding of the transportation time-limit set in accordance with Article 356(1) CCIP does not lead to a customs debt being incurred by reason of a removal from customs supervision within the meaning of Article 203 CCC, but to a customs debt being incurred on the basis of Article 204 CCC?

(b)

Does an affirmative answer to Question 1 require that the persons concerned supply the customs authorities with information regarding the reasons for exceeding the time-limit or that they at least explain to the customs authorities where the goods were held during the time which elapsed between the time-limit set in accordance with Article 356 [CCIP] and the time at which they were actually presented at the customs office of destination?

2.	Must the Sixth Directive, (3) in particular Article 7 of that directive, be interpreted as meaning that VAT becomes chargeable when a customs debt is incurred exclusively on the basis of Article 204 CCC?

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

(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

(3) 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).

26.1.2013

Official Journal of the European Union

C 26/22

Reference for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 29 October 2012 — Pelckmans Turnhout NV v Walter Van Gastel Balen NV and Others

(Case C-483/12)

2013/C 26/42

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicant: Pelckmans Turnhout NV

Defendants: Walter Van Gastel Balen NV, Walter Van Gastel NV, Walter Van Gastel Lifestyle NV, Walter Van Gastel Schoten NV

Questions referred

Must the principle of equality, which is enshrined in Article 6(3) of the Treaty on the European Union and in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, in conjunction with Articles 15 and 16 of that Charter and Articles 34 to 36, 56 and 57 of the Treaty on the Functioning of the European Union, be interpreted as precluding rules such as those contained in Articles 8, 9, 16 and 17 of the Law of 10 November 2006 on opening hours in commerce, crafts and services, in so far as the obligation contained in those articles that a weekly closing day be provided for:

(i)

does not apply to traders established in railway stations or in units of establishment of public transport companies, to sales in airports and port areas open to international travel or to sales in petrol stations or units of establishment located in motorway areas, but does apply to traders established in other locations,

(ii)

does not apply to traders engaged in the sale of goods such as newspapers, magazines, tobacco products and smoking accessories, telephone cards and National Lottery products, the sale of audiovisual media and video games and the sale of ice cream, but does apply to traders who offer other goods for sale,

(iii)

applies only to the retail trade, namely to undertakings which are engaged in sales to consumers, whilst it does not apply to other traders,

(iv)	entails, at least for traders who carry out their activity by means of a physical sales point and who are in direct contact with consumers, a significantly larger restriction than for traders who carry out their activity via an online shop or possibly via other forms of distance selling?

26.1.2013

Official Journal of the European Union

C 26/23

Reference for a preliminary ruling from the Rechtbank ’s Gravenhage (Netherlands), lodged on 31 October 2012 — Georgetown University v Octrooicentrum Nederland, operating under the name NL Octrooicentrum

(Case C-484/12)

2013/C 26/43

Language of the case: Dutch

Referring court

Rechtbank ’s Gravenhage

Parties to the main proceedings

Applicant: Georgetown University

Defendant: Octrooicentrum Nederland, operating under the name NL Octrooicentrum

Questions referred

Does Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, (1) more particularly Article 3(c) thereof, preclude, in a situation where there is a basic patent in force which protects several products, the holder of the basic patent from being granted a certificate for each of the protected products?

If the first question must be answered in the affirmative, how should Article 3(c) of the Regulation be interpreted in the situation where there is one basic patent in force which protects several products, and where, at the date of the application for a certificate in respect of one of the products (A) protected by the basic patent, no certificates had in fact yet been granted in respect of other products (B, C) protected by the same basic patent, but where certificates were nevertheless granted in respect of those applications in respect of the products (B, C) before a decision was made with regard to the application for a certificate in respect of the first-mentioned product (A)?

3.	Is it significant for the answer to the previous question whether the application in respect of one of the products (A) protected by the basic patent was submitted on the same date as the applications in respect of other products (B, C) protected by the same basic patent?

If the first question must be answered in the affirmative, may a certificate be granted for a product protected by a basic patent which is in force if a certificate had already been granted earlier for another product protected by the same basic patent, but where the applicant surrenders the latter certificate with a view to obtaining a new certificate on the basis of the same basic patent?

If the issue of whether the surrender has retroactive effect is relevant for the purpose of answering the previous question, is the question of whether surrender has retroactive effect governed by Article 14(b) of the Regulation or by national law? If the question of whether surrender has retroactive effect is governed by Article 14(b) of the Regulation, should that provision be interpreted to mean that surrender does have retroactive effect?

(1) OJ 2009 L 152, p. 1.

26.1.2013

Official Journal of the European Union

C 26/23

Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 31 October 2012 — Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie

(Case C-485/12)

2013/C 26/44

Language of the case: Dutch

Referring court

College van Beroep voor het Bedrijfsleven

Parties to the main proceedings

Applicants: Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer

Defendants: Staatssecretaris van Economische Zaken, Landbouw en Innovatie

Question referred

Must Article 32 of Regulation (EC) No 796/2004 (1) be interpreted as meaning that a physical inspection in the field will always need to take place before it can be decided on the basis of aerial photographs taken in connection with the assessment of a declaration that the declaration submitted by a farmer is inaccurate?

(1) Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18).

26.1.2013

Official Journal of the European Union

C 26/24

Reference for a preliminary ruling from the Gerechtshof te ’s Hertogenbosch (Netherlands) lodged on 31 October 2012 — X, other party: Heffingsambtenaar van de gemeente Z

(Case C-486/12)

2013/C 26/45

Language of the case: Dutch

Referring court

Gerechtshof te ’s Hertogenbosch

Parties to the main proceedings

Appellant: X

Respondent: Heffingsambtenaar van de gemeente Z

Questions referred

1.	Does the provision of access (pursuant to Article 79(2) of the Wet GBA [Law on personal data held by local authorities]) constitute compliance with the obligation of communication of the data undergoing processing as referred to in the second indent of Article 12(a) of … Directive [95/46/EC (1)]?

2.	Does Article 12(a) of the Directive preclude the levying of fees in respect of the communication, by means of a transcript from the municipal database, of the personal data undergoing processing?

3.	If Question 2 is to be answered in the negative: is the levying of the present fees excessive within the meaning of Article 12(a) of the Directive?

26.1.2013

Official Journal of the European Union

C 26/24

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 5 November 2012 — Conseil national de l’ordre des médecins v Ministère des affaires sociales et de la santé

(Case C-492/12)

2013/C 26/47

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Conseil national de l’ordre des médecins

Defendant: Ministère des affaires sociales et de la santé

Questions referred

1.	Does the specificity requirement for the profession of dental practitioner, laid down by Article 36 of Directive 2005/36/EC, (1) prevent the creation of a postgraduate university training course leading to a qualification which is common to medical students and dental students?

2.	Must the provisions of the Directive on specialties related to medicine be construed as meaning that disciplines such as those listed in point 3 of this decision (2) may not be included in a dental training course?

(1) Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

(2) Namely, on the one hand, theoretical training in oral surgery including in particular training in surgery on the periapex and on odontogenic and non-odontogenic cysts of the jaws, pre-prosthetic and implant surgery, the study of benign tumour conditions, salivary conditions and orthodontic-surgical and orthognathic treatment, and on the other, practical training lasting at least three semesters in a specialist dentistry department and three semesters in a specialist maxillofacial department.

26.1.2013

Official Journal of the European Union

C 26/25

Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 5 November 2012 — Dixons Retail Plc v Commissioners for Her Majesty's Revenue and Customs

(Case C-494/12)

2013/C 26/48

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicant: Dixons Retail Plc

Defendant: Commissioners for Her Majesty's Revenue and Customs

Questions referred

1.	Is Article 14.1 of Council Directive of 28 November 2006 (2006/112/EU (1)) to be interpreted as applying when the physical transfer of goods is obtained by fraud in that the payment provided by the transferee is by means of a card which the transferee knows he has no authority to use?

2.	When the physical transfer of goods is obtained by fraudulent use of a card, is there a ‘transfer of the right to dispose of tangible property as owner’ within Article 14.1?

3.	Is Article 73 to be interpreted as applying when payment is obtained by the transferor of goods under an agreement with a third party to make such payment in respect of a card transactions notwithstanding that the transferee of the goods knows that he has no authority to use the card?

When payment is made by a third party pursuant to an agreement between the transferor of the goods an the third party as a consequence of the presentation to the transferor of a card which the transferee of the goods has no authority to use is the payment obtained from the third party ‘in return for the supply’ within Article 73?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax OJ L 347, p. 1

26.1.2013

Official Journal of the European Union

C 26/25

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy), lodged on 7 November 2012 — Davide Gullotta, Farmacia di Gullotta Davide & C. Sas v Ministero della Salute, Azienda Sanitaria Provinciale di Catania

(Case C-497/12)

2013/C 26/49

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicants: Davide Gullotta, Farmacia di Gullotta Davide & C. Sas

Defendants: Ministero della Salute, Azienda Sanitaria Provinciale di Catania

Questions referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy included on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne, not by the Italian national health service, but wholly by the citizen — and which thereby also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical products, as well as a quota in relation to the number of commercial outlets which may be established within the national territory?

Must Article 15 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the principle therein established also applies, without restriction, to the profession of pharmacist, and that the public-interest aspect of that profession does not justify the application of different arrangements to the proprietors of pharmacies and to the proprietors of para-pharmacies as regards the sale of the medicinal products referred to in Question (1) above?

Must Articles 102 [TFEU] and 106 [TFEU] be interpreted as meaning that the prohibition of the abuse of a dominant position must apply without restriction to the profession of pharmacist, inasmuch as a pharmacist who owns a traditional pharmacy, and sells medicinal products under a contractual arrangement with the Italian national health service, benefits from the ban on the sale of Class C medicinal products by proprietors of para-pharmacies, without this being properly justified on the basis of the undeniably special features of the profession of pharmacist arising from the public interest in safeguarding public health?

26.1.2013

Official Journal of the European Union

C 26/26

Reference for a preliminary ruling from the Tribunale di Tivoli (Italy) lodged on 7 November 2012 — Antonella Pedone v Maria Adele Corrao

(Case C-498/12)

2013/C 26/50

Language of the case: Italian

Referring court

Tribunale di Tivoli

Parties to the main proceedings

Applicant: Antonella Pedone

Defendant: Maria Adele Corrao

Questions referred

Does Article 130 of Presidential Decree No 115 of 30 May 2002 on legal aid in Italian law — insofar as it stipulates that amounts payable to the defending council, the auxiliary to the judge and the court legal assessor are to be reduced by half — comply with Article 47(3) of the Charter of Fundamental Rights of the European Union, which stipulates that legal aid is to be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice?

Does Article 130 of Presidential Decree No 115 of 30 May 2002 on legal aid in Italian law — insofar as it stipulates that amounts payable to the defending counsel, the auxiliary to the judge and the court legal assessor are to be reduced by half — comply with Article 6 of the European Convention for the Protection of Human Rights, as transposed into Community law by Article 52(3) of the Charter of Fundamental Rights of the European Union and by Article 6 [TFEU]?

26.1.2013

Official Journal of the European Union

C 26/26

Action brought on 6 November 2012 — European Commission v Republic of Poland

(Case C-500/12)

2013/C 26/52

Language of the case: Polish

Parties

Applicant: European Commission (represented by: J. Hottiaux and H. Støvlbæk, Agents)

Defendant: Republic of Poland

Form of order sought

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to ensure compliance with Commission Directive 2011/18/EU of 1 March 2011 amending Annexes II, V and VI to Directive 2008/57/EC of the European Parliament and of the Council on the interoperability of the rail system within the Community, (1) and in any event by failing to inform the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 2 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 2011/18/EU had to be transposed expired on 31 December 2011.

(1) OJ 2011 L 57, p. 21.

26.1.2013

Official Journal of the European Union

C 26/27

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Thomas Specht v Land Berlin

(Case C-501/12)

2013/C 26/53

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Thomas Specht

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a civil servant on establishment of the status of civil servant is substantially dependent on his age and also, in particular, rises according to the duration of civil servant status constitutes direct or indirect age discrimination?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?

Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

5.	Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing civil servants are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated solely according to the periods of experience attained since the entry into force of the transitional law, irrespective of the civil servant’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law preclude a justification of this unrestricted, continuing unequal treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

Can the continuing discrimination against existing civil servants be justified by the fact that the regulatory alternative (individual placement also of existing civil servants according to periods of experience) would involve increased administrative expenditure?

If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing civil servants, permit a legal consequence other than retrospective and continuing remuneration of existing civil servants at the highest pay step in their pay grade?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/28

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Jens Schombera v Land Berlin

(Case C-502/12)

2013/C 26/54

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Jens Schombera

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

5.	Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/28

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Alexander Wieland v Land Berlin

(Case C-503/12)

2013/C 26/55

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Alexander Wieland

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

5.	Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/29

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Uwe Schönefeld v Land Berlin

(Case C-504/12)

2013/C 26/56

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Uwe Schönefeld

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

If the above questions are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing civil servants are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated solely according to the periods of experience attained since the entry into force of the transitional law, irrespective of the civil servant’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

If Question 4 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing discrimination by the legislative aim whereby the transitional law is to protect not (only) the acquired rights existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

If such justification is rejected in Question 5: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing civil servants, permit a legal consequence other than retrospective and continuing remuneration of existing civil servants at the highest pay step in their pay grade?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/30

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Antje Wilke v Land Berlin

(Case C-505/12)

2013/C 26/57

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Antje Wilke

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

5.	Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing discrimination by the legislative aim whereby the transitional law is to protect not (only) the acquired rights existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/31

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Gerd Schini v Land Berlin

(Case C-506/12)

2013/C 26/58

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Gerd Schini

Defendant: Land Berlin

Questions referred

1.	Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

3.	If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

5.	Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

26.1.2013

Official Journal of the European Union

C 26/32

Reference for a preliminary ruling from Supreme Court of the United Kingdom (United Kingdom) made on 8 November 2012 — Jessy Saint Prix v Secretary of State for Work and Pensions

(Case C-507/12)

2013/C 26/59

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Jessy Saint Prix

Defendant: Secretary of State for Work and Pensions

Questions referred

Is the right of residence conferred upon a ‘worker’ in Article 7 of the Citizenship Directive (1) to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain ‘workers’ for this purpose?

(i)	If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)?

(ii)	If so, is she entitled to the benefit of the national law's definition of when it is reasonable for her to do so?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance).

OJ L 158, p. 77

26.1.2013

Official Journal of the European Union

C 26/32

Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 12 November 2012 — Joaquim Fernando Macedo Maia and Others v Fundo de Garantia Salarial, IP

(Case C-511/12)

2013/C 26/60

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Applicants: Joaquim Fernando Macedo Maia, António Pereira Teixeira, António Joaquim Moreira David, Joaquim Albino Moreira David

Defendant: Fundo de Garantia Salarial, IP

Question referred

Is European Union law, in the specific context of a guarantee covering wage claims in the event of the employer’s insolvency, in particular Articles 4 and 10 of Directive 80/987/EEC, (1) to be interpreted as precluding a provision of national law which guarantees only claims falling due in the six months preceding the initiation of insolvency proceedings against the employer, even where the employees have brought an action against their employer before the Tribunal do Trabalho (Labour Court) with a view to obtaining a judicial determination of the amount outstanding and an enforcement order to recover those sums?

(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).

26.1.2013

Official Journal of the European Union

C 26/32

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 13 November 2012 — Octapharma France v Agence nationale de sécurité du médicament et des produits de santé (ANSM), Ministère des affaires sociales et de la santé

(Case C-512/12)

2013/C 26/61

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Octapharma France

Defendants: Agence nationale de sécurité du médicament et des produits de santé (ANSM), Ministère des affaires sociales et de la santé

Questions referred

Is plasma from whole blood which is prepared by a method involving an industrial process and which is intended for transfusions capable of having the provisions of Directive 2001/83 (1) [as amended by Directive 2004/27 (2)] and those of Directive 2002/98 (3) applied to it simultaneously, as regards not only its collection and testing, but also its processing, storage and distribution; for that purpose may the rule laid down in Article 2(2) of Directive 2001/83 be interpreted as meaning that the Community legislation on medicinal products alone applies to a product which falls simultaneously within the scope of another piece of Community legislation only where that latter is less strict than the legislation on medicinal products?

Must Article 4(2) of Directive 2002/98 be interpreted, where necessary in the light of Article 168 of the Treaty on the Functioning of the European Union, as allowing the maintenance or introduction of national provisions which, because they submit plasma which is prepared by a method involving an industrial process to a stricter scheme than that to which medicinal products are subject, provide justification for setting aside the application of all or part of the provisions of Directive 2001/83, in particular those which make the marketing of medicinal products subject to the sole condition of the prior grant of a marketing authorisation and, in the affirmative, under what conditions and to what extent?

(1) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)

(2) Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (Text with EEA relevance) (OJ 2004 L 136, p. 34)

(3) Directive 2002/98/EC of the European Parliament and of the Council of 27 January 2003 setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components and amending Directive 2001/83/EC (OJ 2003 L 33, p. 30)

26.1.2013

Official Journal of the European Union

C 26/33

Reference for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 14 November 2012 — 4finance UAB v Valstybinė vartotojų teisių apsaugos tarnyba, Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

(Case C-515/12)

2013/C 26/62

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Claimant: 4finance UAB

Defendants: Valstybinė vartotojų teisių apsaugos tarnyba, Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

Questions referred

Must point 14 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (1) be interpreted as meaning that establishing, operating or promoting a pyramid promotional scheme is to be regarded as a commercial practice that is in all cases misleading only where the consumer has to pay in order to receive compensation primarily for the introduction of other consumers into the scheme rather than for the sale or consumption of products?

If it is necessary for the consumer to pay for the right to receive compensation, is the amount of the payment made by the consumer for the opportunity to receive compensation primarily for the introduction of other consumers into the scheme rather than for the sale or consumption of products relevant for the purpose of recognition of the pyramid promotional scheme as a misleading commercial practice under point 14 of Annex I to the directive? May payments by consumers which are of a purely nominal amount and which are made in order for the consumers to be identified be regarded as payments for the opportunity to receive compensation for the purpose of point 14 of Annex I to the directive?

Must point 14 of Annex I to the directive be interpreted as meaning that, in order for a pyramid promotional scheme to be recognised as a misleading commercial practice under that point, it matters only that the compensation is paid to the consumer already in the scheme primarily because he has introduced other consumers into the scheme rather than for the sale or consumption of products, or is the extent to which the compensation paid to participants in the scheme for the introduction of new consumers is financed by contributions of the new members nevertheless also of importance? In the case under consideration, must the compensation paid to the participants in the pyramid promotional scheme who joined it earlier be financed entirely or to a large extent by the contributions of the members who are fresh entrants into the scheme?

(1) OJ 2005 L 149, p. 22.

26.1.2013

Official Journal of the European Union

C 26/35

Appeal brought on 16 November 2012 by Diadikasia Symvouloi Epicheiriseon AE against the order of the General Court (Fourth Chamber) delivered on 13 September 2012 in Case T-369/11: Diadikasia Symvouloi Epicheiriseon AE v European Commission, Delegation of the European Union to Turkey, Central Finance & Contracts Unit (CFCU)

(Case C-520/12 P)

2013/C 26/66

Language of the case: English

Parties

Appellant: Diadikasia Symvouloi Epicheiriseon AE (represented by: A. Krystallidis, Δικηγόρος)

Other parties to the proceedings: European Commission, Delegation of the European Union to Turkey, Central Finance & Contracts Unit (CFCU)

Form of order sought

The applicant claims that the Court should:

—	Set aside the order under appeal

—	Declare its action before the General Court admissible

—

Hold the case and repair the damages caused to Appellant by the unlawful Defendant’s decision of 5 April 2011 issued by the EU Delegation in Turkey and received by the Applicant on 6 April 2011, on the cancellation of the award of the contract ‘Enlargement of the European Turkish Business Centers Network to Sivas, Antakya, Batman and Van — Europe Aid/128621/D/SET/TR’ to the Consortium “DIADIKASIA BUSINESS CONSULTANS S.A. (GR) — WYG INTERNATIONAL LTD (UK) — DELEEUW INTERNATIONAL LTD (TR)’ — CYBERPARK (TR) due to allegedly false declaration, in view of the Appellant’s horizontal interest in the case in question.

—	Order the Commission to pay all of the costs incurred at first instance and on appeal

Pleas in law and main arguments

In the first plea, the Appellant maintains that the General Court erred in law in the application of Article 263 of the Treaty on the Functioning of the European Union (‘TFEU’), in the sense that it failed to understand that the term ‘institution’ contained in the above-mentioned article is not only referring to the Institutions of the European Union, but also to the servants of the EU, they being equally liable for the recovery of damages by individuals who have suffered loss as a result of its action.

In the second plea, the Appellant maintains that the General Court violated the duty to state reasons and violated Articles 47 of the Charter of Fundamental Rights of the European Union and Articles 6 (right to a fair trial) and 13 (right to an effective remedy) of the European Convention for the protection of Human Rights and Fundamental Freedoms (‘ECHR’), as principles of the Union's law, since it dismissed the Appellant's action as inadmissible without making reference to its observations on the plea of inadmissibility of the Defendant, referring to the relevant case law of damages caused by EU officials (Case 9/69, 4/69, 60/81), and to the interpretation of Article 263 TFEU, according to the above mentioned case law. The order also failed to reply to the Appellant's arguments regarding the Defendant's serious violation of the fundamental European principles of legal certainty, legitimate expectations and right to be heard as well as of the article 4 of the European Code of Good Administrative Behaviour.

In the third plea, the Appellant maintains that the General Court wrongly presented and distorted the evidence adduced by the Appellant at first instance, when it decided, that ‘the CFCU alone had the status of contracting authority. to adopt a decision to award the contract at issue. and the Commission's competence was solely to establish whether or not conditions for EU financing had been met’, based on documents that the Appellant put before the Court, which actually prove that the CFCU functions under the control and the limits set by European Commission. The findings of the order under appeal are therefore incorrect and distort the clear sense of the evidence available to the General Court.

26.1.2013

Official Journal of the European Union

C 26/35

Action brought on 19 November 2012 — European Commission v Germany

(Case C-525/12)

2013/C 26/67

Language of the case: German

Parties

Applicant: European Commission (represented by: E. Manhaeve and G. Wilms, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (the Water Framework Directive) (1) and in particular under Article 2(38) and Article 9, because it has adopted an interpretation which excludes certain services from the concept of ‘water services’.

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

Pleas in law and main arguments

The Commission considers that the abstraction, impoundment, storage, treatment and distribution of surface water or ground water for the purposes of hydro electric power production, navigation and flood protection are also included within water services. Further, personal consumption is also be categorised under water services.

The use of the concept ‘water services’ by the defendant is contrary to Article 9 of the Water Framework Directive (WFD). The defendant excludes water services such as impoundment which is intended for hydro electric power production, navigation and flood protection from the scope of water services within the meaning of the Directive. Such a narrow interpretation is not compatible with the WFD, undermines the effectiveness of Article 9 WFD and thereby jeopardises the attainment of the Directive’s objectives.

It is true that the Member States enjoy a certain margin of discretion on the basis of Article 9 WFD to exclude water services from recovery of costs. They might first have regard to the social, environmental and economic effects of the recovery of costs as well as the geographic and climatic conditions. Further, a Member state might under Article 9(4) WFD decide not to apply the provisions of the second sentence of Article 9(1) WFD in relation to water-pricing policies and recovery of the costs of water services. That option is subject to the condition that there is an established practice in the Member State and that the purposes and the achievement of the objectives of the Directive are not compromised.

However, the complete exclusion of a substantial range of water services, as effected by the defendant, goes far beyond that margin of discretion.

(1) OJ 2000 L 321, p. 1

26.1.2013

Official Journal of the European Union

C 26/36

Action brought on 20 November 2012 — European Commission v Federal Republic of Germany

(Case C-527/12)

2013/C 26/68

Language of the case: German

Parties

Applicant: European Commission (represented by: T. Maxian Rusche and F. Erlbacher, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to adopt all the measures necessary to ensure the immediate and effective implementation of the Commission’s decision by recovering granted aid, the Federal Republic of Germany has failed to fulfil its obligations resulting from Article 288 TFEU, Article 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) and Articles 1, 2 and 3 of Commission Decision 2011/471/EU of 14 December 2010 on State aid granted by Germany to the Biria group (C 38/05 (ex NN 52/04)); (2)

—	order the defendant to pay the costs.

Pleas in law and main arguments

The Commission claims that the Federal Republic of Germany has failed to comply with its obligations resulting from Article 288 TFEU, Article 108(2) TFEU, the principle of effectiveness, Article 14(3) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty and Articles 1, 2 and 3 of Commission Decision 2011/471/EU of 14 December 2010 on State aid granted by Germany to the Biria group (C 38/05 (ex NN 52/04)) by failing to adopt all the measures necessary to ensure the immediate and effective implementation of the Commission’s decision by recovering granted aid.

The Commission takes the view that the instrument chosen by the defendant to recover the aid, namely the granting of civil law claim and a corresponding action for enforcement before the German civil law courts, is not appropriate to ensure the immediate and effective implementation of the Commission’s decision. In the alternative, it submits that, on the day the action was lodged, the defendant had not made use of the provisional basis provided to it by the judgment taken by default to implement the Commission’s decision.

(1) OJ 1999 L 83, p. 1.

(2) OJ 2011 L 195, p. 55.

26.1.2013

Official Journal of the European Union

C 26/36

Appeal brought on 21 November 2012 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (Seventh Chamber) delivered on 13 September 2012 in Case T-404/10: National Lottery Commission v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-530/12 P)

2013/C 26/69

Language of the case: English

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, F. Mattina, Agents)

Other party to the proceedings: National Lottery Commission

Form of order sought

The appellant claims that the Court should:

—	Annul the Judgment under Appeal,

—	Order the National Lottery Commission (Applicant before the General Court) to bear the costs incurred by the Office.

Pleas in law and main arguments

The Office raises three pleas in law, namely (i) the violation of Article 76(1) CTMR (1), (ii) the breach of OHIM’s right to be heard and (iii) the manifest inconsistency and distortion of facts affecting the Judgment under Appeal.

The first plea is divided in two limbs. On the one hand, the General Court infringed Article 76(1) CTMR, as interpreted by the Court of Justice in relation to Article 53(2) CTMR and Rule 37 CTMIR (2) in the Elio Fiorucci Judgment, to the extent that it relied on provisions of national law, namely Article 2704 of the Italian Civil Code, which had not been invoked by the parties and which therefore did not form part of the dispute before the Board. On the other, the General Court infringed Article 76(1) CTMR to the extent that it relied on national jurisprudence, namely the above mentioned ruling No 13912 of 14 June 2007 by the Corte Suprema di Cassazione referred to at paragraph 32 of the Judgment under Appeal, which had not been invoked by the parties and which did not form part of the dispute before the Board.

The second plea concerns the breach of OHIM’s right to be heard, to the extent that the Office was not given the opportunity to comment on procedural and substantive aspects relating to the ruling of the Corte Suprema di Cassazione. Had the Office been given this opportunity, it cannot be excluded that the reasoning and conclusion of the General Court would have been different.

The third plea concerns the manifest inconsistency and the distortion of facts affecting the reasoning and conclusion of the General Court. The Office considers that the General Court misread and distorted the analysis of the Board as well as the National Lottery Commission’s own arguments and failed to appreciate that the Board applied the correct legal standard, under Italian law, in finding that the National Lottery Commission had not adduced proof that the date of the post office stamp affixed to the 1986 Agreement was not conclusive.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ 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 L 303, p. 1

26.1.2013

Official Journal of the European Union

C 26/37

Action brought on 23 November 2012 — European Commission v Grand Duchy of Luxembourg

(Case C-532/12)

2013/C 26/70

Language of the case: French

Parties

Applicant: European Commission (represented by: P. Hetsch, O. Beynet, A. Tokár, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

—

Declare that, by not having adopted the laws, regulations and administrative provisions necessary to transpose Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (1) or, in any event, by not having notified those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 72(1) of that directive;

—	impose on the Grand Duchy of Luxembourg, in accordance with Article 260(3) TFEU, a penalty payment of EUR 8 320 per day from the date of delivery of the judgment in this case;

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2009/81/EC expired on 21 August 2011.

(1) OJ L 216, 20.8.2009, p. 76.

26.1.2013

Official Journal of the European Union

C 26/38

Action brought on 26 November 2012 — European Commission v Republic of Slovenia

(Case C-538/12)

2013/C 26/71

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by P. Hetsch, A. Tokár and D. Kukovec, acting as Agents)

Defendant: Republic of Slovenia

Form of order sought

The Commission claims that the Court should:

—

declare that, by failing to adopt all the laws, regulations and administrative measures necessary to transpose Directive 2009/81/EC (1) of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC (2) and 2004/18/EC, (3) or in any case by failing to notify the Commission of those measures, the Republic of Slovenia has failed to fulfil its obligations under those directives;

—	order the Republic of Slovenia, pursuant to Article 260(3) TFEU, to make a daily penalty payment of EUR 7 038,72, calculated from the day on which judgment shall be given in these proceedings;

—	order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 21 August 2011.

(1) OJ 2009 L 216, p. 76.

(2) OJ 2004 L 134, p. 1.

(3) OJ 2004 L 134, p. 114.

26.1.2013

Official Journal of the European Union

C 26/38

Appeal brought on 28 November 2012 by the Hellenic Republic against the judgment delivered on 10 October 2012 by the General Court (Second Chamber) in Case T-158/09 Greece v Commission

(Case C-547/12 P)

2013/C 26/72

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

Other party to the proceedings: European Commission

Form of order sought

—

grant the appeal and set aside the contested judgment of the General Court of the European Union in so far as the General Court held that in Case 4 Magrizos II, EL./1995/017, the Commission lawfully attributed negligence to the Greek authorities as regards failure to recover the relevant financial sums;

—	uphold the first plea in law in the action for annulment of the Commission decision because, in that case, the legal conditions for applying Article 32 of Regulation No 1290/2005 and for the Commission’s charging of the sum of EUR 276 347,86 to the Hellenic Republic were not met;

—	order the Commission to pay the Hellenic Republic’s costs.

Pleas in law and main arguments

The General Court, distorting the clear sense of the evidence in the case-file, appraised the facts incorrectly in Case 4 Magrizos II, EL./1995/017, reaching the erroneous conclusion that in that case the legal conditions for applying Article 32 of Regulation No 1290/2005 and for the Commission’s charging of the sum of EUR 276 347,86 to the Hellenic Republic were met.

26.1.2013

Official Journal of the European Union

C 26/39

Judgment of the General Court of 29 November 2012 — CB v Commission

(Case T-491/07) (1)

(Competition - Decision of an association of undertakings - Market for issuing payment cards in France - Decision finding an infringement of Article 81 EC - Tariff measures applicable to ‘new entrants’ - Membership fees and so-called ‘regulation of customer function’ and ‘sleeper member fee’ mechanisms - Relevant market - Object of the measures at issue - Restriction of competition by object - Article 81(3) EC - Manifest errors of assessment - Principle of sound administration - Proportionality - Legal certainty)

2013/C 26/73

Language of the case: French

Parties

Applicant: Groupement des cartes bancaires ‘CB’ (Paris, France) (represented by: A. Georges, J. Ruiz Calzado, É. Barbier de la Serre, then J. Ruiz Calzado and F. Pradelles, lawyers)

Defendant: European Commission (represented: initially by F. Arbault, O. Beynet and V. Bottka, then O. Beynet, V. Bottka and B. Mongin, acting as Agents)

Interveners in support of the applicant: BNP Paribas (Paris, France) (represented by: O. de Juvigny and D. Berg, lawyers); BPCE, formerly Caisse nationale des caisses d’épargne et de prévoyance (CNCEP) (Paris) (represented by: B. Bär-Bouyssière and A. de Beaugrenier, lawyers); and Société Générale (Paris) (represented by: A. Barav and D. Reymond, lawyers).

Re:

Application for annulment of Commission Decision C(2007) 5060 final of 17 October 2007 relating to a proceeding under Article 81 EC (Case COMP/D1/38.606 — Groupement des Cartes Bancaires ‘CB’).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Groupement des cartes bancaires ‘CB’ to bear its own costs and to pay those incurred by the European Commission;

3.	Orders BPCE, BNP Paribas and Société Générale to bear their own costs.

(1) OJ C 64, 8.3.2008.

26.1.2013

Official Journal of the European Union

C 26/39

Judgment of the General Court of 7 December 2012 — A. Loacker SpA v OHIM — Editrice Quadratum (QUADRATUM)

(Case T-42/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark QUADRATUM - Earlier Community word mark LOACKER QUADRATINI - Relative ground for refusal - 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) - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) - Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009)

2013/C 26/74

Language of the case: Italian

Parties

Applicant: A. Loacker SpA (Auna di Sotto, Italy) (represented by: V. Bilardo, C. Bacchini and M. Mazzitelli, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Editrice Quadratum SpA (Milan, Italy) (represented by: P. Pezzoi, P. Perani and G. Ghisletti, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 23 October 2008 (Case R 34/2008-1), concerning opposition proceedings between A. Loacker SpA and Editrice Quadratum SpA.

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders A. Loacker SpA to pay the costs.

(1) OJ C 69, 21.3.2009.

26.1.2013

Official Journal of the European Union

C 26/40

Judgment of the General Court of 6 December 2012 — Evropaïki Dynamiki v Commission

(Case T-167/10) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Requests for quotation - Refusal to grant access - Action for annulment - Period allowed for commencing proceedings - Point from which time starts to run - Admissibility - Exception relating to the protection of the economic policy of the European Union - Exception relating to the protection of the commercial interests of a third party - Exception relating to the protection of the public interest in the field of public security - Obligation to state the reasons on which a decision is based)

2013/C 26/75

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission (represented by: E. Manhaeve and C. ten Dam, Agents)

Re:

Application for (i) annulment of the Commission’s decision of 27 January 2010 refusing access to the requests for quotation relating to Lot 3A of tendering procedure DIGIT/PO/2005/113 — ESP-DESIS (OJ 2005/S 252-248566) and (ii) annulment of the Commission’s decision of 11 March 2010 refusing access to requests for quotation relating to all the other lots covered by that tendering procedure, all the lots covered by the tendering procedures DI/0005 ESP (OJ 2001/S 53-036539) and ADMIN/DI/2/PO/2003/192 ESP-DIMA (OJ 2003/S 249-221337) and by Framework Contract BUDG/0101.

Operative part of the judgment

The Court:

1.	Annuls the decision of the European Commission of 27 January 2010 refusing access to the requests for quotation relating to Lot 3A of tendering procedure DIGIT/PO/2005/113 — ESP-DESIS;

2.	Annuls the Commission’s decision of 11 March 2010 refusing access to requests for quotation relating to all the other lots covered by that tendering procedure, all the lots covered by the tendering procedures DI/0005 ESP and ADMIN/DI/2/PO/2003/192 ESP-DIMA and by Framework Contract BUDG/0101;

3.	Orders the Commission to bear its own costs and the costs incurred by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.

(1) OJ C 161, 19.6.2010.

26.1.2013

Official Journal of the European Union

C 26/40

Judgment of the General Court of 6 December 2012 — Füller-Tomlinson v European Parliament

(Case T-390/10 P) (1)

(Appeal - Public service - Members of the temporary staff - Social security - Occupational disease - Fixing of the proportion of invalidity attributable to occupational disease - Application of the European Guide for Assessment, for medical purposes, of Physical and Mental Impairments - Distortion of the facts - Reasonable time-limit)

2013/C 26/76

Language of the case: French

Parties

Appellant: Paulette Füller-Tomlinson (Brussels, Belgium) (represented by: L. Levi, lawyer)

Other party to the proceedings: European Parliament (represented by: K. Zejdová and S. Seyr, acting as Agents)

Re:

Appeal against the judgment of the European Civil Service Tribunal (Third Chamber) of 1 July 2010 in Case F-97/08 Füller-Tomlinson v European Parliament [2010] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Paulette Füller-Tomlinson to bear her own costs and to pay those incurred by the European Parliament in the course of the present proceedings.

(1) OJ C 301, 6.11.2010.

26.1.2013

Official Journal of the European Union

C 26/40

Judgment of the General Court of 29 November 2012 — Adamowski v OHIM — Fagumit (FAGUMIT)

(Joined Cases T-537/10 and T-538/10) (1)

(Community trade mark - Invalidity proceedings - Community word mark Fagumit and Community figurative mark FAGUMIT - Earlier national figurative mark FAGUMIT - Relative ground for invalidity - Article 8(3) and Article 165(4)(b) of Regulation (EC) No 207/2009)

2013/C 26/77

Language of the case: German

Parties

Applicant: Ursula Adamowski (Hamburg, Germany) (represented by: D. von Schultz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. (Fagumit) (Wolbrom, Poland) (represented by: M. Krekora, T. Targosz and P. Podrecki, lawyers)

Re:

Two actions brought against two decisions of the First Board of Appeal of OHIM of 3 September 2010 (Cases R 1002/2009-1 and R 1003/2009-1), concerning invalidity proceedings between Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. and Ursula Adamowski.

Operative part of the judgment

The Court:

1.	Orders that Cases T-537/10 and T-538/10 be joined for the purposes of judgment;

2.	Dismisses the actions;

3.	Orders Ursula Adamowski to bear her own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. relating to the proceedings before the Court.

(1) OJ C 30, 29.1.2011.

26.1.2013

Official Journal of the European Union

C 26/41

Judgment of the General Court of 29 November 2012 — Thesing and Bloomberg Finance v ECB

(Case T-590/10) (1)

(Access to documents - Decision 2004/258/EC - Documents concerning the government debt and government deficit of a Member State - Refusal of access - Exception relating to the economic policy of the Union or of a Member State - Partial refusal of access)

2013/C 26/78

Language of the case: English

Parties

Applicants: Gabi Thesing (London, United Kingdom); and Bloomberg Finance LP (Wilmington, Delaware, United States) (represented by: M. Stephens, R. Lands, Solicitors, and T. Pitt-Payne QC)

Defendant: European Central Bank (ECB) (represented initially by A. Sáinz de Vieuña Barroso, M. López Torres and S. Lambrinoc, and subsequently by M. López Torres and S. Lambrinoc, Agents)

Re:

Application for annulment of the decision of the ECB’s Executive Board, which was notified to Ms Thesing by letter of the President of the ECB of 21 October 2010, rejecting an application by Ms Thesing for access to two documents concerning the government deficit and debt of the Hellenic Republic.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ms Gabi Thesing and Bloomberg Finance LP to bear their own costs and to pay those incurred by the European Central Bank (ECB).

(1) OJ C 72, 5.3.2011.

26.1.2013

Official Journal of the European Union

C 26/41

Judgment of the General Court of 11 December 2012 — Sina Bank v Council

(Case T-15/11) (1)

(Common foreign and security policy - Restrictive measures taken against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Actions for annulment - Duty to state reasons)

2013/C 26/79

Language of the case: English

Parties

Applicant: Sina Bank (Tehran, Iran) (represented by: B. Mettetal and C. Wucher-North, lawyers)

Defendant: Council (represented by: M. Bishop and G. Marhic, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: F. Erlbacher and M. Konstantinidis, acting as Agents)

Re:

Annulment of, first, Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), in so far as the latter concerns the applicant, and, second, the ‘decision’ in the Council’s letter of 28 October 2010 concerning the applicant; and a declaration of inapplicability, as regards the applicant, of, first, Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2007 L 195, p. 39), as resulting from Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), in so far as the latter concerns the applicant, second, Article 16(2) of Regulation No 961/2010 and, third, Article 20(1)(b) of Decision 2010/413.

Operative part of the judgment

The Court:

Annuls Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, as resulting from Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413, and Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, in so far as the latter concern Sina Bank;

2.	Orders that the effects of Annex II to Decision 2010/413, as resulting from Decision 2010/644, be maintained in relation to Sina Bank until annulment of Annex VIII to Regulation No 961/2010 takes effect;

3.	Dismisses the action as to the remainder;

4.	Orders the Council to bear two thirds of the costs incurred by Sina Bank and two thirds of its own costs;

5.	Orders Sina Bank to bear one third of its own costs and one third of the Council’s costs;

6.	Orders the European Commission to bear its own costs.

(1) OJ C 72, 5.3.2011.

26.1.2013

Official Journal of the European Union

C 26/42

Judgment of the General Court of 5 December 2012 — Consorzio vino Chianti Classico v OHIM — FFR (F.F.R.)

(Case T-143/11) (1)

(Community trade mark - Opposition proceedings - Application for a Community figurative mark ‘F.F.R.’ - Earlier national figurative marks CHIANTI CLASSICO - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) and 8(5) of Regulation (EC) No 207/2009)

2013/C 26/80

Language of the case: English

Parties

Applicant: Consorzio vino Chianti Classico (Radda in Chianti, Italy) (represented by: S. Corona, G. Ciccone and A. Loffredo, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by V. Melgar and G. Mannucci and subsequently by V. Melgar and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM: Fédération française de rugby (FFR) (Marcoussis, France)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 10 January 2011 (Case R 43/2010-4), concerning opposition proceedings between Consorzio vino Chianti Classico and Fédération française de rugby (FFR).

Operative part of the judgment

The Court:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 January 2011 (Case R 43/2010-4) in so far as the Board of Appeal rejected the opposition based on Article 8(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark;

2.	Dismisses the action as to the remainder;

3.	Orders Consorzio vino Chianti Classico and OHIM each to bear the costs which they have incurred in the course of the proceedings before the General Court.

(1) OJ C 152, 21.5.2011.

26.1.2013

Official Journal of the European Union

C 26/42

Judgment of the General Court of 29 November 2012 — Hopf v OHIM (Champflex)

(Case T-171/11) (1)

(Community trade mark - Application for Community word mark Champflex - Absolute grounds for refusal - Descriptiveness - Article 7(1)(c) of Regulation (EC) No 207/2009 - Lack of distinctiveness - Article 7(1)(b) of Regulation No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2013/C 26/81

Language of the case: German

Parties

Applicant: Hans-Jürgen Hopf (Zirndorf, Germany) (represented by: V. Mensing, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 January 2011 (Case R 1514/2010-4) concerning an application for registration of the word mark Champflex as a Community trade mark.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 January 2011 (Case R 1514/2010-4) in so far as it concerns the goods ‘syringes’;

2.	Dismisses the action as to the remainder;

3.	Orders Mr Hans-Jürgen Hopf to bear his own costs and to pay half the costs of OHIM, and orders OHIM to bear half of its own costs.

(1) OJ C 145, 14.5.2011.

26.1.2013

Official Journal of the European Union

C 26/43

Judgment of the General Court of 5 December 2012 — Qualitest v Council

(Case T-421/11) (1)

(Common foreign and security policy - Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Action for annulment - Obligation to state reasons - Manifest error of assessment)

2013/C 26/82

Language of the case: English

Parties

Applicant: Qualitest FZE (Dubai, United Arab Emirates) (represented by: L. Catrain González, lawyer, E. Wright and H. Zhu, Barristers)

Defendant: Council of the European Union (represented by: G. Marhic and R. Liudvinaviciute-Cordeiro, Agents)

Intervener in support of the defendant: European Commission (represented by: S. Boelaert and T. Scharf, Agents)

Re:

Application for annulment in part of Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65), of Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26) and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1)

Operative part of the judgment

The Court:

Annuls, in so far as they concern Qualitest FZE:

—	Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;

—	Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran;

—	Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;

2.	Maintains the effects of Decision 2011/299 as regards Qualitest until the annulment of Implementing Regulation No 503/2011 and Regulation No 267/2012 takes effect;

3.	Orders the Council of the European Union to bear its own costs and to pay those incurred by Qualitest;

4.	Orders the European Commission to bear its own costs.

(1) OJ C 282, 24.9.2011.

26.1.2013

Official Journal of the European Union

C 26/43

Judgment of the General Court of 6 December 2012 — Strobl v Commission

(Case T-630/11 P) (1)

(Appeal - Public service - Officials - Recruitment - Open competition - Candidates whose names are included in a list of suitable candidates prior to the entry into force of the new Staff Regulations - Notice of vacancy - Appointment - Grading under the new, less favourable rules - Article 12 of Annex XIII to the Staff Regulations - Error in law - Obligation to state reasons on the part of the Civil Service Tribunal)

2013/C 26/83

Language of the case: German

Parties

Appellant: Peter Strobl (Besozzo, Italy) (represented by: H.-J. Rüber, lawyer)

Other parties to the proceedings: European Commission (represented by: J. Currall, acting as Agent, assisted by B. Wägenbaur, lawyer); and Council of the European Union (represented by: J. Herrmann and A. Jensen, acting as Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2011 in Case F-56/05 Strobl v Commission [2011] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Peter Strobl to bear his own costs and to pay those incurred by the European Commission in the course of the present proceedings;

3.	Orders the Council of the European Union to bear its own costs.

(1) OJ C 49, 18.2.2012.

26.1.2013

Official Journal of the European Union

C 26/44

Judgment of the General Court of 11 December 2012 — Fomanu v OHIM (Qualität hat Zukunft)

(Case T-22/12) (1)

(Community trade mark - Application for Community word mark Qualität hat Zukunft - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)

2013/C 26/84

Language of the case: German

Parties

Applicant: Fomanu AG (Neustadt an der Waldnaab, Germany) (represented by: T. Raible, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 27 October 2011 (Case R 1518/2011-1) concerning an application for registration of the word sign Qualität hat Zukunft as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Fomanu AG to pay the costs.

(1) OJ C 80, 17.3.2012.

26.1.2013

Official Journal of the European Union

C 26/44

Judgment of the General Court of 28 November 2012 — Bauer v OHIM — BenQ Materials (Daxon)

(Case T-29/12) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Daxon - Earlier Community word mark DALTON - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2013/C 26/85

Language of the case: German

Parties

Applicant: Erika Bauer (Schaufling, Germany) (represented by: A. Merz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: BenQ Materials Corp. (Gueishan Taoyuan, Taiwan)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 9 November 2011 (Case R 2191/2010-2) relating to opposition proceedings between Mrs Erika Bauer and BenQ Materials Corp.

Operative part of the judgment

The Court:

1.	Alva Management GmbH is granted leave to be substituted for Mrs Erika Bauer as applicant;

2.	The action is dismissed.

3.	Alva Management is ordered to pay the costs.

(1) OJ C 80, 17.3.2012.

26.1.2013

Official Journal of the European Union

C 26/44

Order of the General Court of 27 November 2012 — Steinberg v Commission

(Case T-17/10) (1)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Documents relating to funding decisions for grants to Israeli and Palestinian non-governmental organisations under the ‘Partnership for Peace’ programme and the European Instrument for Democracy and Human Rights - Partial refusal of access - Exception relating to the protection of the public interest as regards public security - Obligation to state the reasons on which the decision is based - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

2013/C 26/86

Language of the case: English

Parties

Applicant: Gerald Steinberg (Jerusalem, Israel) (represented by: T. Asserson, Solicitor)

Defendant: European Commission (represented by: C. Tufvesson and C. ten Dam, Agents)

Re:

Application for annulment of Commission Decision SG.E.3/MV/psi D(2009) 3914 of 15 May 2009, partially refusing the applicant access to certain documents relating to funding decisions for grants to Israeli and Palestinian non-governmental organisations under the ‘Partnership for Peace’ programme and the European Instrument for Democracy and Human Rights (EIDHR)

Operative part of the order

1.	The action is dismissed as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law;

2.	Mr Gerald Steinberg shall bear his own costs and pay those incurred by the European Commission.

(1) OJ C 80, 27.3.2010.

26.1.2013

Official Journal of the European Union

C 26/45

Order of the General Court of 23 November 2012 — Crocs v OHIM — Holey Soles Holdings and PHI (Representation of footwear )

(Case T-302/10) (1)

(Community trade mark - Invalidity action - Withdrawal of the invalidity action - No need to adjudicate)

2013/C 26/87

Language of the case: English

Parties

Applicant: Crocs, Inc. (Niwot, United States of America) (represented by: I.R. Craig, solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Hanne, agent)

Other parties to the proceedings before the Board of Appeal of OHIM: Holey Soles Holdings Ltd (Vancouver, Canada; and Partenaire Hospitalier International (La Haie Foissière, France)

Re:

Action brought against the decision of the Third Board of Appeal of OHIM of 26 March 2010 (Case R 9/2008-3), relating to invalidity proceedings between Holey Shoes Holdings Ltd and Partenaire Hospitalier International and Crocs, Inc.

Operative part of the order

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

2.	The applicant shall bear it own costs and those incurred by the defendant.

(1) OJ C 260, 25.9.2010.

26.1.2013

Official Journal of the European Union

C 26/45

Order of the General Court of 27 November 2012 — ADEDY and Others v Council

(Case T-541/10) (1)

(Actions for annulment - Decisions addressed to a Member State with a view to remedying a situation of excessive deficit - No direct concern - Inadmissibility)

2013/C 26/88

Language of the case: Greek

Parties

Applicants: Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), (Athens, Greece); Spyridon Papaspyros (Athens); and Ilias Iliopoulos (Athens) (represented by: M.-M. Tsipra, lawyer)

Defendant: Council of the European Union (represented by: T. Middleton, A. De Gregorio Merino and E. Chatziioakeimidou, acting as Agents)

Intervening party in support of the Defendant: European Commission (represented by: B. Smulders, J. P. Keppenne and M. Konstantinidis, acting as Agents)

Re:

Application for annulment, firstly, of Council Decision 2010/320/EU of 10 May 2010 addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit (OJ 2010 L 145, p. 6; corrigendum OJ 2011 L 209, p. 63) and, secondly, of Council Decision 2010/486/EU of 7 September 2010 amending Decision 2010/320/EU (OJ 2010 L 241, p. 12).

Operative part of the order

1.	The action is dismissed.

2.	Orders Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), Mr Spyridon Papaspyros and Mr Ilias Iliopoulos to bear their own costs as well as those incurred by the Council of the European Union.

3.	Orders the European Commission to bear its own costs.

(1) OJ C 30, 29.1.2011.

26.1.2013

Official Journal of the European Union

C 26/45

Order of the General Court of 27 November 2012 — ADEDY and Others v Council

(Case T-215/11) (1)

(Actions for annulment - Decisions addressed to a Member State with a view to remedying a situation of excessive deficit - No direct concern - Inadmissibility)

2013/C 26/89

Language of the case: Greek

Parties

Applicants: Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), (Athens, Greece); Spyridon Papaspyros (Athens); and Ilias Iliopoulos (Athens) (represented by: M.-M. Tsipra, lawyer)

Defendant: Council of the European Union (represented by: G. Maganza, M. Vitsentzatos and A. de Gregorio Merino, acting as Agents)

Intervening party in support of the defendant: European Commission (represented by: B. Smulders, J. P. Keppenne and M. Konstantinidis, acting as Agents)

Re:

Annulment of Council Decision 2011/57/EU of 20 December 2010 amending Decision 2010/320/EU (OJ 2010 L 145, p. 6) addressed to Greece with a view to reinforcing and deepening fiscal surveillance and giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit (OJ 2011 L 26, p. 15)

Operative part of the order

1.	The action is dismissed.

2.	Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY), Mr Spyridon Papaspyros and Mr Ilias Iliopoulos shall bear their own costs and pay those incurred by the Council of the European Union.

3.	The European Commission shall bear its own costs.

(1) OJ C 186, 25.6.2011.

26.1.2013

Official Journal of the European Union

C 26/46

Order of the General Court of 13 November 2012 — ClientEarth and Others v European Commission

(Case T-278/11) (1)

(Actions for annulment - Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - Period allowed for commencing proceedings - Delay - Manifest inadmissibility)

2013/C 26/90

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom); Friends of the Earth Europe (Amsterdam, Netherlands); Stichting FERN (Leiden, Netherlands); and Stichting Corporate Europe Observatory (Amsterdam) (represented by: P. Kirch, lawyer)

Defendant: European Commission (represented by: K. Herrmann and C. ten Dam, acting as Agents)

Re:

Application for annulment of the Commission’s implied decision of 22 April 2011 refusing access to certain documents relating to the voluntary certification schemes for seeking recognition from the Commission under Article 18 of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	The European Commission is ordered to bear its own costs and to pay three quarters of the costs of ClientEarth, Friends of the Earth Europe, Stichting FERN and Corporate Europe Observatory, which shall bear one quarter of their own costs.

(1) OJ C 219, 23.7.2011.

26.1.2013

Official Journal of the European Union

C 26/46

Order of the General Court of 19 October 2012 — Ellinika Nafpigeia and Hoern v Commission

(Case T-466/11) (1)

(Action for annulment - State aid - Shipbuilding - Aid granted by the Greek authorities to a shipyard - Measures implementing the Commission’s decision finding that the aid is incompatible with the common market and ordering that it be repaid - Inadmissibility)

2013/C 26/91

Language of the case: Greek

Parties

Applicants: Ellinika Nafpigeia AE (Skaramagka, Greece), and 2. Hoern Beteiligungs GmbH (Kiel, Germany) (represented by: K Chrysogonos and A. Mitsis, lawyers)

Defendant: European Commission (represented by: B. Stromsky and M. Konstantinidis, Agents)

Re:

Application for the annulment of Commission letter C(2010) 8274 final of 1 December 2010 relating to ‘State aid case CR 16/2004 — Implementation of the negative Decision with recovery concerning State aid in favour of [the company Ellinika Nafpigeia AE] — Invocation by Greece of Article 346 paragraph 1 (b) TFEU and proceedings under Article 348 paragraph 1 TFEU’, as supplemented by the documents and other material on the file of which the applicants became partially aware in June 2011.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no need to adjudicate on the application by Nafpigikes kai viomichanikes epicheiriseis Elefsinas for leave to intervene.

3.	Ellinika Nafpigeia AE and 2. Hoern Beteiligungs GmbH shall bear their own costs and pay those incurred by the European Commission.

4.	The applicant for leave to intervene, Nafpigikes kai viomichanikes epicheiriseis Elefsinas, shall bear its own costs.

(1) OJ C 331, 12.11.2011.

26.1.2013

Official Journal of the European Union

C 26/47

Order of the General Court of 20 November 2012 — Marcuccio v Commission

(Case T-491/11 P) (1)

(Appeal - Civil service - Officials - Duration of the procedure for recognising partial permanent invalidity - Harm allegedly suffered by the appellant - Reimbursement of avoidable costs - Action at first instance dismissed as manifestly devoid of any basis in law - Article 94(a) of the Rules of Procedure of the Civil Service Tribunal)

2013/C 26/92

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Del Ferro, lawyer)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (Third Chamber) of 30 June 2011 in Case F-14/10 Marcuccio v Commission, not published in the ECR, seeking to have that order set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the Commission in the appeal proceedings.

(1) OJ C 331, 12.11.2011.

26.1.2013

Official Journal of the European Union

C 26/47

Order of the General Court of 26 November 2012 — MIP Metro v OHIM — Real Seguros (real,- QUALITY)

(Case T-548/11) (1)

(Community trade mark - Opposition proceedings - Revocation of earlier national trade marks - No need to adjudicate)

2013/C 26/93

Language of the case: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Real Seguros, SA (Porto, Portugal)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 August 2011 (Case R 114/2011-4) concerning opposition proceedings between Real Seguros, SA and MIP Metro Group Intellectual Property GmbH & Co. KG.

Operative part of the order

1.	There is no need to adjudicate on the action;

2.	The parties shall bear their own costs incurred before the General Court.

(1) OJ C 6, 7.1.2012.

26.1.2013

Official Journal of the European Union

C 26/47

Order of the General Court of 26 November 2012 — MIP Metro v OHIM — Real Seguros (real,- BIO)

(Case T-549/11) (1)

(Community trade mark - Opposition proceedings - Revocation of earlier national trade marks - No need to adjudicate)

2013/C 26/94

Language of the case: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Real Seguros, SA (Porto, Portugal)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 August 2011 (Case R 115/2011-4) concerning opposition proceedings between Real Seguros, SA and MIP Metro Group Intellectual Property GmbH & Co. KG.

Operative part of the order

1.	There is no need to adjudicate on the action;

2.	The parties shall bear their own costs incurred before the General Court.

(1) OJ C 6, 7.1.2012.

26.1.2013

Official Journal of the European Union

C 26/48

Order of the General Court of 8 November 2012 — Marcuccio v Commission

(Case T-616/11 P) (1)

(Appeal - Civil service - Officials - Action at first instance dismissed as manifestly devoid of any basis in law - Harm allegedly suffered by the appellant - Reimbursement of avoidable costs - Article 94(a) of the Rules of Procedure of the Civil Service Tribunal)

2013/C 26/95

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Del Ferro, lawyer)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 8 September 2011 in Case F-69/10 Marcuccio v Commission, not published in the ECR, seeking to have that order set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the Commission in the appeal proceedings.

(1) OJ C 25, 28.1.2012.

26.1.2013

Official Journal of the European Union

C 26/48

Order of the General Court of 27 November 2012 — H-Holding AG v Parliament

(Case T-672/11) (1)

(Action for failure to act - Action for damages - Action in part manifestly inadmissible and in part manifestly devoid of any basis in law)

2013/C 26/96

Language of the case: German

Parties

Applicant: H-Holding AG (Cham, Switzerland) (represented by: R. Závodný, lawyer)

Defendant: European Parliament (represented by: U. Rösslein and P. Schonard, Agents)

Re:

Application for a declaration that the Parliament unlawfully failed to commence infringement proceedings against the Czech Republic and to call upon OLAF to open an investigation relating to a Czech political party, following its petition of 24 August 2011, and, secondly, action for compensation for damage suffered as a result of the Parliament’s alleged failure to act.

Operative part of the order

1.	The action is dismissed.

2.	H-Holding AG is ordered to pay the costs.

(1) OJ C 235, 4.8.2012

26.1.2013

Official Journal of the European Union

C 26/48

Order of the General Court of 20 November 2012 — Shahid Beheshti University v Council

(Case T-120/12) (1)

(Annulment action - Common foreign and security policy - Restrictive measures against Iran to prevent nuclear proliferation - Freezing funds - Period allowed for commencing proceedings - Lateness - Inadmissible)

2013/C 26/97

Language of the case: French

Parties

Applicant: Shahid Beheshti University (Tehran, Iran) (represented by: J.-M Thouvenin, lawyer)

Defendant: Council of the European Union (represented by: R. Liudvinaviciute Cordeiro and A. Varnav, Agents)

Re:

Application for annulment of Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65), Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26), Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, 71), Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11), as far as those acts concern the applicant, and the decision contained in the Council’s letter sent to the applicant on 5 December 2011.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Shahid Behesti University is to bear its own costs and to pay those incurred by the Council of the European Union.

(1) OJ C 165, 9.6.2012.

26.1.2013

Official Journal of the European Union

C 26/49

Order of the General Court of 20 November 2012 — Geipel v OHIM — Reeh (BEST BODY NUTRITION)

(Case T-138/12) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2013/C 26/98

Language of the case: German

Parties

Applicant: Yves Geipel (Auerbach, Germany) (represented by: J. Sachs, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Jörg Reeh (Buxtehude, Germany)

Re:

Action brought against the decision of the Board of Appeal of OHIM of 12 January 2012 (Case R 2433/2010-1) relating to opposition proceedings between Jörg Reeh and Yves Geipel.

Operative part of the order

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

2.	The applicant is ordered to bear his own costs and to pay those incurred by the defendant.

(1) OJ C 157, 2.6.2012.

26.1.2013

Official Journal of the European Union

C 26/49

Order of the President of the General Court of 29 November 2012 — Alstom v Commission

(Case T-164/12 R)

(Interim relief - Competition - Commission decision to transmit documents to a national court - Confidentiality - Right to effective judicial protection - Application for interim measures - Prima facie case - Urgency - Weighing up of interests)

2013/C 26/99

Language of the case: English

Parties

Applicant: Alstom (Levallois-Perret, France) (represented by: J. Derenne, lawyer, N. Heaton, P. Chaplin and M. Farley, Solicitors)

Defendant: European Commission (represented by: A. Antoniadis, N. Khan and P. Van Nuffel, Agents)

Intervener in support of the defendant: National Grid Electricity Transmission plc (London, United Kingdom) (represented by: A. Magnus, C. Bryant and E. Coulson, Solicitors, J. Turner QC and D. Beard QC)

Re:

Application for suspension of operation of the Commission’s decision of 26 January 2012 contained in letters No D/2012/006840 and No D/2012/006863 from the Director General of the Commission’s Directorate-General for Competition, concerning the transmission of certain documents to the High Court of England and Wales for use in evidence in proceedings brought against the applicant, and an application for confidential treatment to be ordered in the present proceedings in respect of the professional secrets contained in the applicant’s reply of 30 June 2006 to the statement of objections in Case COMP/F/38.899 — Gas insulated switchgear.

Operative part of the order

Operation of the Commission’s decision of 26 January 2012 is suspended in so far as that decision concerns the transmission to the High Court of England and Wales of the confidential version of Alstom’s reply of 30 June 2006 to the statement of objections in Case COMP/F/38.899 — Gas insulated switchgear.

2.	The application for interim measures is dismissed as to the remainder.

3.	The costs are reserved.

26.1.2013

Official Journal of the European Union

C 26/49

Order of the President of the General Court of 16 November 2012 — Evonik Degussa v Commission

(Case T-341/12 R)

(Interim measures - Competition - Publication of a decision by which the Commission finds an infringement of provisions which prohibit cartels - Refusal of the request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice - Weighing up of interests - Urgency - Prima facie case)

2013/C 26/100

Language of the case: German

Parties

Applicant: Evonik Degussa GmbH (Essen, Germany) (represented by: C. Steinle, M. Holm-Hadulla and C. von Köckritz, lawyers)

Defendant: European Commission (represented by: C. Giolito, M. Kellerbauer and G. Meessen, Agents)

Re:

Application for suspension of operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment made by the applicant (Case COMP/38.620 — Hydrogen peroxide and perborate) and an application for interim measures seeking to maintain the confidential treatment granted to certain information concerning the applicant on the publication of a more detailed version of Commission Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/C.38.620 — Hydrogen peroxide and perborate) (OJ 2006 L 353, p. 54).

Operative part of the order

The operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment brought by Evonik Degussa GmbH, pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings is suspended.

The Commission is ordered to refrain from publishing on its website or any other place or to make available to third parties a version of its Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, Eka Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S.A., Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate), which is more complete, in relation to the applicant, than that published in September 2007 on the Commission’s Competition Directorate General website.

3.	Costs are reserved.

26.1.2013

Official Journal of the European Union

C 26/50

Order of the General Court of 21 November 2012 — Grupo T Diffusión v OHIM — ABR Producción Contemporánea (Lampe)

(Case T-343/12) (1)

(Community trade mark - Application for a declaration of invalidity - Withdrawal of that application - No need to adjudicate)

2013/C 26/101

Language of the case: Spanish

Parties

Applicant: Grupo T Diffusión, SA (Barcelona, Spain) (represented by: A. Lasala Grimalt, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: ABR Producción Contemporánea, SL (Barcelona, Spain)

Re:

Action brought against the decision of the Third Board of Appeal of OHIM of 1 June 2012 (Case R 1622/2010-3) relating to invalidity proceedings between ABR Producción Contemporánea, SL and Grupo T Diffusión, SA.

Operative part of the order

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

2.	Each party shall bear its own costs.

(1) OJ C 287, 22.9.2012.

26.1.2013

Official Journal of the European Union

C 26/50

Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (ZOOSPORT)

(Case T-453/12)

2013/C 26/102

Language in which the application was lodged: English

Parties

Applicant: Zoo Sport Ltd (Leeds, United Kingdom) (represented by: I. Rungg, lawyer)

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

Other party to the proceedings before the Board of Appeal: K-2 Corp. (Seattle, United States)

Form of order sought

The applicant claims that the Court should:

—	Vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2012 in case R 1119/2011-4, so as to reject the opposition in its entirety; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZOOSPORT’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 8909251

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 in opposition: Community trade mark registration No 5233119 for the word mark ‘ZOOT’, for goods in classes 9 and 25; Community trade mark registration No 4719316 for the figurative mark in black and white ‘SPORTS ZOOT SPORTS’, for goods and services in classes 25, 35, 36 and 41

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

Decision of the Board of Appeal: Partially annulled the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/51

Action brought on 22 October 2012 — Sothys Auriac v OHIM — Grand Hotel Primavera (BEAUTY GARDEN)

(Case T-470/12)

2013/C 26/103

Language in which the application was lodged: French

Parties

Applicant: Sothys Auriac (Auriac, France) (represented by: A. Berthet, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grand Hotel Primavera SA (Borgo Maggiore, Saint-Martin)

Form of order sought

The applicant claims that the Court should:

—	declare the present action to be admissible;

—	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 July 2012 on Case R 11419/2011-1;

—	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: BEAUTY GARDEN for goods in Classes 3, 5, 29, 30 and 32 — Community trade mark No 3 456 134

Proprietor of the Community trade mark: Applicant

Applicant for the declaration of invalidity of the Community trade mark: Grand Hotel Primavera SA

Grounds for the application for a declaration of invalidity: National figurative mark containing the word element ‘BEAUTY GARDEN’ for goods in Classes 3 and 5

Decision of the Cancellation Division: Application upheld in part

Decision of the Board of Appeal: Appeal rejected in part and decision of the Cancellation Division annulled in part and revised by the Board of Appeal.

Pleas in law:

—	Infringement of Article 76(1) and Article 75 of Regulation No 207/2009

—	Infringement of the general principle that reasons must be given in OHIM decisions and that the adversarial nature of proceedings must be observed.

26.1.2013

Official Journal of the European Union

C 26/51

Action brought on 1 November 2012 — Aer Lingus v Commission

(Case T-473/12)

2013/C 26/104

Language of the case: English

Parties

Applicant: Aer Lingus Ltd (Dublin, Ireland) (represented by: K. Bacon, D. Scannell, Barristers, and A. Burnside, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Annul (or, in the alternative, partially annul) the Commission Decision of 25 July 2012 in State aid case SA.29064 (2011/C) (ex 2011/NN) — Differentiated air travel tax rates implemented by Ireland; and

—	Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging that the defendant erred in law in concluding, in the Contested Decision, that the lower rate tax constituted unlawful State aid. Specifically, the Commission erred in characterising the higher rate tax as the ‘normal’ rate of tax, for the purposes of determining whether the lower rate tax constituted a selective advantage. Since the higher rate tax was invalid pursuant to directly effective provisions of EU law, it could not properly be regarded as the ‘normal’ reference rate for this purpose. For the same reasons the Commission erred in finding that the airlines subject to the lower rate tax benefited from an advantage corresponding to €8 per passenger.

Second plea in law, alleging that even if the Commission could properly characterise the lower rate tax as constituting State aid within the meaning of Article 107(1) TFEU, the order for recovery of the aid from the airlines subject to the lower rate tax, in circumstances where the higher rate tax was also liable to be repaid simultaneously, infringed the principle of legal certainty, the principle of effectiveness and the principle of good administration. Accordingly, the Contested Decision, in ordering recovery of the aid, was in breach of Article 14 of Council Regulation (EC) No 659/99 (1).

Third plea in law, alleging that the defendant also erred in law and fact by identifying the airline operators subject to the lower rate tax as the beneficiaries of the alleged aid in the amount of EUR 8 per passenger, and ordering recovery of the aid on that basis, in circumstances where the Commission acknowledged that the burden of the tax may have been carried by passengers, who were therefore the primary beneficiaries of the lower rate.

Fourth plea in law, alleging that since it is impossible to recoup the EUR 8 per passenger retrospectively from the passengers that benefited from the lower rate tax, the recovery order in these circumstances operates as an additional tax on the relevant airlines, and thereby amounts to unlawful penalisation of those airlines rather than the restoration of the situation prior to the grant of the alleged aid. This is disproportionate and a breach of the principle of equal treatment and therefore a further breach of Article 14 of Council Regulation (EC) No 659/99.

5.	Fifth plea in law, alleging that the defendant gave no, or insufficient, reasons for ordering recovery of the aid and for quantifying the aid in the amount of EUR 8 per passenger.

(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)

26.1.2013

Official Journal of the European Union

C 26/52

Action brought on 5 November 2012 — Coca-Cola v OHIM — Mitico (Master)

(Case T-480/12)

2013/C 26/105

Language in which the application was lodged: English

Parties

Applicant: The Coca-Cola Company (Atlanta, United States) (represented by: S. Malynicz, Barrister, D. Stone and L. Ritchie, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Modern Industrial & Trading Investment Co. Ltd (Mitico) (Damascus, Syria)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 August 2012 in case R 2156/2011-2; and

—	Order the defendant and the other party to the proceedings before the Board of Appeal to bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Master’, for goods in classes 29, 30 and 32 — Community trade mark application No 9091612

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Community trade mark registration No 8792475 of the figurative mark ‘Coca-Cola’; Community trade mark registration No 3021086 of the figurative mark ‘Coca-Cola’; Community trade mark registration No 2117828 of the figurative mark ‘Coca-Cola’; Community trade mark registration No 2107118 of the figurative mark ‘Coca-Cola’; United Kingdom trade mark registration No 2428468 of the figurative mark ‘C’

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/53

Action brought on 29 October 2012 — Internationaler Hilfsfonds v European Commission

(Case T-482/12)

2013/C 26/106

Language of the case: German

Parties

Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) (represented by: H.-H. Heyland, lawyer)

Defendant: European Commission

Form of order sought

—	Annul the defendant’s implicit decision by which it rejected the applicant’s second application of 4 October 2012;

—	In the alternative, annul the defendant’s decision of 28 August 2012 on account of its failure to take into account the requirements arising from the judgment of the General Court of 22 May 2012 in Case T-300/10;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant argues essentially that in its decision the Commission partially failed to take into account the requirements arising from the judgment of the General Court of 22 May 2012 in Case T-300/10 Internationaler Hilfsfonds v Commission, not yet published in the ECR.

26.1.2013

Official Journal of the European Union

C 26/53

Action brought on 5 November 2012 — Nestlé Unternehmungen Deutschland v OHIM — Lotte (LOTTE)

(Case T-483/12)

2013/C 26/107

Language in which the application was lodged: German

Parties

Applicant: Nestlé Unternehmungen Deutschland GmbH (Frankfurt am Main, Germany) (represented by: A. Jaeger-Lenz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Lotte Co. Ltd (Tokyo, Japan)

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 3 September 2012 in case R 2103/2010-4;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Lotte Co. Ltd

Community trade mark concerned: Figurative mark containing the word element ‘LOTTE’ and an image of a koala on a tree, holding a smaller koala, for goods in Class 30 — Community trade mark application 6 158 463

Proprietor of the mark or sign cited in the opposition proceedings: Nestlé Unternehmungen Deutschland GmbH

Mark or sign cited in opposition: National figurative marks containing the word elements ‘KOALA BÄREN’ and ‘KOALA’ and an image of a koala holding a smaller koala, for goods in Class 30

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal granted; decision of the Opposition Division annulled

Pleas in law: Infringement of Article 42(2) and (3) of Regulation No 207/2009, Rule 22(2) of Regulation No 2868/95 and Article 15(1) of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/53

Action brought on 6 November 2012 — CeWe Color v OHIM (SMILECARD)

(Case T-484/12)

2013/C 26/108

Language of the case: German

Parties

Applicant: CeWe Color AG & Co. OHG (Oldenburg, Germany) (represented by U. Sander, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2012 in Case R 2279/2011-4;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SMILECARD’ for goods and services in Classes 9, 16 and 40 — Community trade mark application No 9 861 691

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(c) of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/54

Action brought on 9 November 2012 — Grupo Bimbo v OHIM (SANISSIMO)

(Case T-485/12)

2013/C 26/109

Language of the case: Spanish

Parties

Applicant: Grupo Bimbo, SAB de CV (Mexico, Mexico) (represented by N. Fernández Fernández-Pacheco, lawyer)

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

Form of order sought

The applicant claims that the General Court should find the present application and the accompanying documents to be duly lodged and admissible, take note that an action has been brought against the Decision of 29 August 2012 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) in Case R 1218/2011-2 and, following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs and, consequently, register Community trade mark application No 9.274.119 SANISSIMO.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘SANISSIMO’ for goods in Classes 29 and 30 — Community trade mark application No 9 274 119

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 and of Article 7(3) of that regulation.

26.1.2013

Official Journal of the European Union

C 26/54

Action brought on 9 November 2012 — Eckes-Granini v OHIM — Panini (PANINI)

(Case T-487/12)

2013/C 26/110

Language in which the application was lodged: English

Parties

Applicant: Eckes-Granini Group GmbH (Nieder-Olm, Germany) (represented by: W. Berlit, lawyer)

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

Other party to the proceedings before the Board of Appeal: Panini SpA (Modena, Italy)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 2393/2011-2; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘PANINI’, for goods in class 32 — Community trade mark application No 8721987

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Community trade mark registration No 121780 of the word mark ‘GRANINI’, for inter alia goods in class 32; German trade mark registration No 30315871 of the word mark ‘GRANINI’ for inter alia goods in class 32

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/55

Action brought on 8 November 2012 — Planet v Commission

(Case T-489/12)

2013/C 26/111

Language of the case: Greek

Parties

Applicant: Planet AE, a public limited consultancy company (Athens, Greece) (represented by: V. Khristianos, lawyer)

Defendant: European Commission

Form of order sought

—

Declare that the European Commission, by disallowing personnel costs for the applicant’s high ranking staff, infringed the ONTOGOV, FIT and RACWeb contracts and that the personnel costs submitted to the Commission in respect of the abovementioned contracts for the applicant’s high ranking staff, amounting to EUR 547 653,42 are consequently eligible costs and ought not to be repaid by the applicant to the Commission, and

—	order the European Commission to pay the applicant’s costs.

Pleas in law and main arguments

This action concerns the Commission’s liability under the following contracts: (a) No 507237 for completion of the project ‘Ontology enabled E-Gov Service Configuration (ONTOGOV)’, (b) No 027090 for completion of the project ‘Fostering self-adaptive e-government service improvement using semantic technologies (FIT)’ and (c) No 045101 for completion of the project ‘Risk Assessment for Customs in Western Balkans (RACWeb)’, pursuant to Article 272 TFEU and the first paragraph of Article 340 TFEU. Specifically, the applicant claims that, although it performed its contractual obligations fully, properly and very successfully, the Commission, contrary to the above mentioned contracts and the rules governing audit procedure, disallowed the applicant’s personnel costs which relate to its three high ranking staff.

More particularly, the applicant relies on two pleas in law in support of its action:

First, the applicant maintains that in no way did it infringe its contractual obligations concerning personnel costs, since (a) the personnel costs for the applicant’s three high ranking staff meet all the conditions of eligibility, in accordance with the terms of the contracts at issue, and (b) in no way do the contracts prohibit the participation of high ranking staff in the funded projects.

Secondly, the applicant maintains that the Commission was in breach of its contractual obligations in the audit procedure, since (a) the Commission’s audit was conducted in breach of Greek and International Standards on Auditing, (b) the Commission’s request for the production of documentation which Planet was under no obligation to preserve is contrary to the contracts at issue and is an attempt to effect a retrospective unilateral alteration of Planet’s contractual obligations and (c) the conclusions of the audit at issue are incompatible with the conclusions of previous audits by the Commission at Planet.

26.1.2013

Official Journal of the European Union

C 26/55

Action brought on 6 November 2012 — Mondadori Editore v OHIM — Grazia Equity (GRAZIA)

(Case T-490/12)

2013/C 26/112

Language in which the application was lodged: English

Parties

Applicant: Arnoldo Mondadori Editore SpA (Milan, Italy) (represented by: G. Dragotti and R. Valenti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grazia Equity GmbH (Stuttgart, Germany)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1958/2010-4; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘GRAZIA’, for services in classes 35 and 36 — Community trade mark application No 6840466

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Italian trade mark registration No 906507 of the figurative mark ‘GRAZIA’, for goods and services in classes 3, 9, 16, 18, 25 and 38; Community trade mark registration No 1714146 of the figurative mark ‘GRAZIA’, for goods and services in classes 3, 9, 16, 18 and 38; Italian trade mark registration No 1049965 of the word mark ‘GRAZIA’, for goods in class 16; Italian trade mark registration No 1050165 and International trade mark registrations No 276829, No 276833 and No 817006 for the above marks, for goods and services in classes 9, 16 or 38

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/56

Action brought on 14 November 2012 — Sanofi v OHIM — GP Pharm (GEPRAL)

(Case T-493/12)

2013/C 26/113

Language in which the application was lodged: English

Parties

Applicant: Sanofi (Paris, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal: GP Pharm, SA (Sant Quinti de Mediona, Spain)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 September 2012 in case R 201/2012-2; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘GEPRAL’, for goods in class 5 — International Registration No 1010832 designating the European Union

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: International registration No 418607, with effect in Austria of the word mark ‘DELPRAL’, for goods in class 5

Decision of the Opposition Division: Allowed the opposition in its entirety

Decision of the Board of Appeal: Upheld the appeal and allowed the International registration to proceed in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/56

Action brought on 14 November 2012 — Biscuits Poult v OHIM — Banketbakkerij Merba (Biscuits)

(Case T-494/12)

2013/C 26/114

Language in which the application was lodged: French

Parties

Applicant: Biscuits Poult (Montauban, France) (represented by: C. Chapoullié, lawyer)

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

Other party to the proceedings before the Board of Appeal: Banketbakkerij Merba BV (Oosterhout, Netherlands)

Form of order sought

—	Annul or at least vary the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 August 2012 in Case R 914/2011-3;

—	uphold the decision of the Invalidity Division which declared that Design No 001114292-0001 was valid;

—	dismiss the application for a declaration of invalidity registered under reference ICD 000007120; and

—	order Banketbakkerij Merba BV 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: Design of a soft-centred biscuit, for biscuits in Class 01-01 — Community design No 001114292-0001

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: Banketbakkerij Merba BV

Grounds for the application for a declaration of invalidity: Infringement of Articles 4 to 9 of Regulation No 6/2002

Decision of the Cancellation Division: Application for a declaration of invalidity dismissed

Decision of the Board of Appeal: Appeal upheld and the Community design declared invalid

Pleas in law: Infringement of Article 4(2) and of Article 6 of Regulation No 6/2002

26.1.2013

Official Journal of the European Union

C 26/57

Action brought on 16 November 2012 — European Drinks v OHIM — Alexandrion Grup Romania (Dracula Bite)

(Case T-495/12)

2013/C 26/115

Language in which the application was lodged: English

Parties

Applicant: European Drinks SA (Ștei, Romania) (represented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal: SC Alexandrion Grup Romania Srl (Pleasa, Romania)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 680/2011-4; and

—	Order that the costs of the proceedings be borne by the Defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in colour ‘Dracula Bite’, for goods and services in classes 33, 35 and 39 — Community trade mark application No 7588247

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Romanian trade mark registration No 34847 of the figurative mark ‘Dracula’, for goods and services in classes 33 and 35

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and 42(3) of Council Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/57

Action brought on 16 November 2012 — European Drinks v OHIM — Alexandrion Grup Romania (DRACULA BITE)

(Case T-496/12)

2013/C 26/116

Language in which the application was lodged: English

Parties

Applicant: European Drinks SA (Ștei, Romania) (represented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal: SC Alexandrion Grup Romania Srl (Pleasa, Romania)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 682/2011-4; and

—	Order that the costs of the proceedings be borne by the Defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘DRACULA BITE’, for goods and services in classes 33, 35 and 39 — Community trade mark application No 7588288

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Romanian trade mark registration No 34847 of the figurative mark ‘Dracula’, for goods and services in classes 33 and 35

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and 42(3) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/58

Action brought on 16 November 2012 — European Drinks v OHIM — Alexandrion Grup Romania (DRACULA BITE)

(Case T-497/12)

2013/C 26/117

Language in which the application was lodged: English

Parties

Applicant: European Drinks SA (Ștei, Romania) (represented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal: SC Alexandrion Grup Romania Srl (Pleasa, Romania)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 679/2011-4; and.

—	Order that the costs of the proceedings be borne by the Defendant

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘DRACULA BITE’, for goods and services in classes 33, 35 and 39 — Community trade mark application No 7588321

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Romanian trade mark registration No 34847 of the figurative mark ‘Dracula’, for goods and services in classes 33 and 35

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and 42(3) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/58

Action brought on 16 November 2012 — Koinοpraxia Τouristiki Loutrakiou v Commission

(Case T-498/12)

2013/C 26/118

Language of the case: Greek

Parties

Applicant: Koinοpraxia Τouristiki Loutrakiou AE, O.T.A. — Loutraki AE — Club Hotel Casino Loutraki Τouristikes kai Xenodokhiakes Epikhirisis AE (Loutraki, Greece) (represented by: S. Pappas, lawyer)

Defendant: European Commission

Form of order sought

—	annul the Commission’s confirmatory decision of 18 September 2012 — Αres (2012)1082114 — by which the applicant’s request for access to certain documents was refused, and

—	order the European Commission to pay the costs.

Pleas in law and main arguments

By this action the applicant seeks, in accordance with Article 263 TFEU, the annulment of the European Commission’s decision of 18 September 2012, which finally refused the applicant’s confirmatory request for access to the letter of 16 May 2012 from the Greek authorities relating to the quantification of the amount of unlawful State aid to be recovered in accordance with the decision dated 24 May 2011 (1) of the European Commission’s Directorate General for Competition.

In support of its action the applicant relies on the following pleas in law:

First, the applicant claims an infringement of the obligation on the administration to state reasons for the refusal decisions, given that in its reply, the administration confines itself to a general reference to the exceptions laid down in Regulation 1049/2001, without any further elaboration and without any real statement of reasons for the decision.

Secondly, the applicant claims an infringement of the principle of transparency, contrary to the well known Regulation 1049/2001 and Regulation 659/1999, (2) given that the defendant is not providing to the public the widest possible access to documents by neither interpreting nor applying strictly the exceptions laid down in Regulation 1049/2001.

Lastly, the applicant claims an infringement of Article 108(2) TFEU, and of Articles 6 and 20 of Regulation 659/1999 in breach of the applicant’s rights of defence and by extension in breach of the principle of good administration.

(1) Decision of the European Commission of 24 May 2011, Ε(2011) 3504 final, on State aid to certain Greek casinos No C 16/2010 (formerly ΝΝ 22/2010, formerly CP 318/2009).

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty

26.1.2013

Official Journal of the European Union

C 26/59

Action brought on 13 November 2012 — HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission

(Case T-499/12)

2013/C 26/119

Language of the case: German

Parties

Applicants: HSH Investment Holdings Coinvest-C Sàrl (Luxembourg, Luxembourg) and HSH Investment Holdings FSO Sàrl (Luxembourg) (represented by: H. Niemeyer and H. Ehlers, lawyers)

Defendant: European Commission

Form of order sought

—	Annul the defendant’s decision of 20 September 2011 in Case C 29/2009 (ex N 264/2009) — HSH Nordbank AG;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on the following pleas in law to contest the conditions imposed on the minority shareholders:

First plea in law, alleging that no discrete aid was granted to the minority shareholders

The applicants maintain that the Commission incorrectly applied the concept of State aid in Article 107(1) TFEU by wrongly identifying the applicants as aid recipients. An increase in the value of the minority shareholders’ shareholdings was simply an economic reflex following the aid granted to HSH Nordbank and not an indirect aid to the minority shareholders.

Second plea in law, alleging insufficient reasoning for the finding that the applicants obtained an advantage

The applicants argue in relation to this plea that the Commission infringed the duty to state reasons contained in Article 296(2) TFEU by failing to explain adequately its finding that the applicants had received indirect aid or the reasons why the valuation of HSH Nordbank had been incorrectly determined. In addition, the Commission did not provide a figure for the level of the supposed aid to the minority shareholders and mixed up the examination of that aid with the examination of the burden-sharing.

Third plea in law, alleging incorrect fact-finding when examining whether the applicants received a financial advantage

In the context of this plea, the applicants complain that the Commission made mistakes in its determination of the facts. According to the applicants, the company which valued HSH Nordbank did not overvalue HSH Nordbank or thus the issue price of the new ordinary shares but carried out the valuation in conformity with recognised valuation methods.

Fourth plea in law, alleging failure to take into account prior payments by the applicants in the context of burden-sharing

The applicants claim that the Commission misapplied the conditions relating to burden-sharing which follow from Article 107(3)(b) TFEU and the restructuring communication, (1) when — while examining whether the applicants are sufficiently involved in the burden-sharing — it failed to take the prior payments made by them into account.

Fifth plea in law, alleging infringement of Article 7(1) of Regulation (EC) No 659/1999 (2) and the principle of legal certainty by terminating the formal investigation procedure unlawfully

The applicants argue in this connection that the Commission infringed Article 7(1) of Regulation No 659/1999 and the principle of legal certainty by terminating the formal investigation procedure with regard to the applicants without a decision of the kind provided for in Article 7 of Regulation No 659/1999.

Sixth plea in law, alleging infringement of Article 7(4) of Regulation No 659/1999, Article 107(3)(b) TFEU and the restructuring communication by the imposition of inappropriate conditions

With regard to this plea, the applicants argue that the Commission infringed Article 7(4) of Regulation No 659/1999 and the restructuring communication by imposing conditions unrelated to the restructuring of HSH Nordbank which in fact amounted to a covert authorisation of indirect aid subject to conditions.

7.	Seventh plea in law, alleging infringement of the proportionality principle owing to an excessive burden being imposed on the applicants The applicants complain that the Commission infringed the proportionality principle by imposing an excessive burden on them in the context of burden-sharing.

Eighth plea in law, alleging infringement of the principle of equal treatment by discriminating against the applicants

The applicants argue in this regard that the Commission infringed the principle of equal treatment by imposing conditions on the applicants in its decision which it had not imposed in other comparable cases.

The applicants raise the following additional pleas in law in respect of the contested decision:

First plea in law: Infringement of Article 107(3)(b) TFEU and the impaired assets communication (3) by calculating the incompatible aid element incorrectly

In the context of this plea it is argued that the Commission infringed Article 107(3)(b) TFEU and the impaired assets communication by incorrectly calculating the so-called incompatible aid element connected with the guarantee in favour of HSH Nordbank.

2.	Second plea in law: Insufficient reasoning regarding determination of actual economic value The applicants argue in relation to this plea that the Commission did not provide sufficient reasons how it determined the actual economic value of the portfolio covered by the guarantee.

Third plea in law: Infringement of Article 107(3)(b) TFEU and the impaired assets communication as a result of incorrect calculation of the claw-back

The applicants claim that the Commission infringed Article 107(3)(b) TFEU and the impaired assets communication by calculating the claw-back incorrectly.

4.	Fourth plea in law: Infringement of the principle of equality in the calculation of the claw-back Fourth, it is argued in the context in question that the Commission infringed the principle of equality by treating the HSH Nordbank unfavourably compared with other comparable cases.

Fifth plea in law: Infringement of Article 107(3)(b) TFEU and the proportionality principle by making authorisation conditional upon a disproportionately high balance sheet reduction

Finally, the applicants claim that the Commission also infringed Article 107(3)(b) TFEU and the principle of proportionality by making its authorisation conditional upon a disproportionately high balance sheet reduction for HSH Nordbank.

(1) Commission communication on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (OJ 2009 C 195, p. 9).

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

(3) Commission Communication on the treatment of impaired assets in the Community banking sector (OJ 2009 C 72, p. 1).

26.1.2013

Official Journal of the European Union

C 26/60

Action brought on 15 November 2012 — Ryanair v Commission

(Case T-500/12)

2013/C 26/120

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: B. Kennelly, Barrister, E. Vahida and I. Metaxas-Maragkidis, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Annul Article 1 of the Commission’s Decision dated 25 July 2012 in State aid case SA.29064 (20011/C ex 2011/NN) finding that the differential rates applied in the Irish air travel tax (‘ATT’) between 30 March 2009 and 1 March 2011 constituted unlawful State aid contrary to Article 107(1) TFEU;

—	Annul Articles 4, 5 and 6 of the same Decision; and

—	Order the defendant to pay the costs of the present proceedings, including those incurred by the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1.	First plea in law, alleging that the Commission erred in law in finding that the EUR 10 rate in the ATT was the ‘normal’ or legitimate ‘standard’ rate, despite the fact that this higher rate was at all material times unlawful as a matter of EU law.

Second plea in law, alleging that the Commission committed manifest errors of assessment in relation to assessing the advantage granted under the ATT, by finding that Ryanair and Aer Arann were in the same position as regards the economic and competitive advantage granted by the ATT, disregarding entirely the ATT’s particular competitive effects as between Ryanair and Aer Lingus, erring in its assessment of the alleged advantage gained by Ryanair vis-à-vis other, non-Irish, carriers and ignoring the damage inflicted on Ryanair through the ATT’s advantageous effects for Ryanair’s competitors.

Third plea in law, alleging that the Commission committed manifest errors of assessment in relation to the recovery decision, by depriving Ireland of the required discretion to assess the extent to which the State aid distorted competition and thus restore the previous situation, by failing to analyse the relevance of the affected airlines’ ability to pass on the ATT to their customers and by disregarding the competitive distortions that will arise as a result of the recovery decision’s combination with the alleged ‘beneficiary’ airlines’ right to restitution under EU and Irish law.

4.	Fourth plea in law, alleging that the Commission failed to give Ryanair notice of its recovery decision as required by Article 6 of Council Regulation (EC) No. 659/1999 (1) and Article 41 of the Charter of Fundamental Rights of the EU.

Fifth plea in law, alleging that the Commission is in breach of its obligation to state reasons, by failing to justify why, in departure from well-established case-law, the EUR 10 rate could be both unlawful under EU law and at the same time the ‘normal’ and ‘legitimate’ benchmark, and by failing to analyse the economic and competitive effects of the measure in question.

(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).

26.1.2013

Official Journal of the European Union

C 26/61

Action brought on 19 November 2012 — Farmaceutisk Laboratorium Ferring v OHIM — Tillotts Pharma (OCTASA)

(Case T-501/12)

2013/C 26/121

Language in which the application was lodged: English

Parties

Applicant: Farmaceutisk Laboratorium Ferring A/S (Copenhagen, Denmark) (represented by: I. Fowler, Solicitor, A. Renck and J. Fuhrmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Tillotts Pharma AG (Ziefen, Switzerland)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1214/2011-4; and.

—	Order that the costs of the proceedings be borne by the Defendant, or — in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the Defendant — that they be borne jointly by the Defendant and the Intervener.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘OCTASA’, for goods in class 5 — Community trade mark application No 8169881

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Austrian trade mark registration No 102370 for the word mark ‘PENTASA’, for among others goods in class 5; Hungarian trade mark registration No 136836 for the word mark ‘PENTASA’, for goods in class 5; Italian trade mark registration No 40977 C/81 for the word mark ‘PENTASA’, for among others goods in class 5; Polish trade mark registration No 71634 for the word mark ‘PENTASA’, for goods in class 5; Slovak trade mark registration No 175482 for the word mark ‘PENTASA’, for goods in class 5; Swedish trade mark registration No 173377 for the word mark ‘PENTASA’, for among others goods in class 5; French trade mark registration No 1699236 for the word mark ‘PENTASA’, for among others goods in class 5; Irish trade mark registration No 107207 for the word mark ‘PENTASA’, for goods in class 5; Czech trade mark registration No 182567 for the word mark ‘PENTASA’, for goods in class 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/62

Action brought on 19 November 2012 — Ferring v OHIM — Tillotts Pharma (OCTASA)

(Case T-502/12)

2013/C 26/122

Language in which the application was lodged: English

Parties

Applicant: Ferring BV (Haarlem, Netherlands) (represented by: I. Fowler, Solicitor, A. Renck and J. Fuhrmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Tillotts Pharma AG (Ziefen, Switzerland)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1216/2011-4; and.

—	Order that the costs of the proceedings be borne by the Defendant, or — in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the Defendant — that they be borne jointly by the Defendant and the Intervener.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘OCTASA’, for goods in class 5 — Community trade mark application No 8169881

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Benelux trade mark registration No 377513 for the word mark ‘PENTASA’, for among others goods in class 5; German trade mark registration No 1181393 for the word mark ‘PENTASA’, for goods in class 5; Portuguese trade mark registration No 218845 for the word mark ‘PENTASA’, for goods in class 5; Danish trade mark registration No VR 02.430 1980 for the word mark ‘PENTASA’, for goods in class 5; Finnish trade mark registration No 94367 for the word mark ‘PENTASA’, for goods in class 5; UK trade mark registration No 1131049 for the word mark ‘PENTASA’, for goods in class 5; Spanish trade mark registration No 1766091 for the word mark ‘PENTASA’, for goods in class 5; International trade mark registration No 605880 for the word mark ‘PENTASA’, for goods in class 5; Benelux trade mark registration No 430245 for the word mark ‘OCTOSTIM’, for goods in class 5; German trade mark registration No 2024737 for the word mark ‘OCTOSTIM’, for goods in class 5; Finnish trade mark registration No 95782 for the word mark ‘OCTOSTIM’, for goods in class 5; French trade mark registration No 1537576 for the word mark ‘OCTOSTIM’, for goods in class 5; UK trade mark registration No 1262052 for the word mark ‘OCTOSTIM’, for goods in class 5; Greek trade mark registration No 129507-A for the word mark ‘OCTOSTIM’, for goods in class 5; Irish trade mark registration No 175341 for the word mark ‘OCTOSTIM’, for goods in class 5; Portuguese trade mark registration No 246194 for the word mark ‘OCTOSTIM’, for goods in class 5; Danish trade mark registration No VR 198601124 for the word mark ‘OCTOSTIM’, for goods in class 5; Swedish trade mark registration No 2000103 for the word mark ‘OCTOSTIM’, for goods in class 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

—	Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009

—	Infringement of Rule 80(2) of Commission Regulation (EC) No 2868/95.

26.1.2013

Official Journal of the European Union

C 26/62

Action brought on 16 November 2012 — United Kingdom v Commission

(Case T-503/12)

2013/C 26/123

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: D. Wyatt, QC, V. Wakefield, Barrister, and C. Murrell, agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

Annul Commission Decision 2012/500/EU of 6 September 2012 excluding from EU financing certain expenditure incurred by the Member States, to the extent of four entries in the Annex relating to a 5 % flat rate correction of expenditure incurred in Northern Ireland in Financial Year 2008 (amounting to EUR 277 231,60 and EUR 13 671 558,90) and in Financial Year 2009 (amounting to EUR 270 398,26 and EUR 15 844 193,29) (OJ 2012 L 244, p. 11); and

—	Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First plea in law, alleging that the Commission committed errors of law and of fact, and failed to take into account considerations relevant to the scale of possible loss to the EU funds, in respect of the risk to such funds posed by expenditure in claim years 2007 and 2008 in particular resulting from errors in determination of eligible area in 2005 affecting the initial allocation of entitlements.

Second plea in law, alleging that the Commission committed errors of law and fact, in that the Commission wrongly concluded that Northern Ireland Department of Agriculture and Rural Development (‘DARD’) failed to apply, properly or at all, provisions on sanctions, recoveries of undue payments and intentional non compliance, and that the Commission thus overestimated and/or failed to take into account considerations relevant to the scale of possible loss to the EU funds. In particular, the Commission:

—	wrongly criticised an alleged «systematic» recalculation of payment entitlements by DARD;

—	wrongly claimed that errors in 2005 could have material affects on the historical element of the entitlement value;

—	adopted the wrong method of calculation of overpayments;

—

adopted the wrong approach to penalties, in particular by:

—	adopting the wrong method of calculating penalties; and

—	wrongly claiming that a penalty should be imposed for each year in cases where a penalty was applicable in 2005 but not in subsequent claim years in this case in 2007 and 2008 where over-payment resulted from the same error as that penalised in 2005;

—	adopted the wrong approach to intentional non-compliance.

26.1.2013

Official Journal of the European Union

C 26/63

Action brought on 19 November 2012 — Murnauer Markenvertrieb v OHIM (NOTFALL CREME)

(Case T-504/12)

2013/C 26/124

Language of the case: German

Parties

Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by F. Traub and H. Daniel, lawyers)

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

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2012 in Case R 271/2012-4;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark, including the word element ‘NOTFALL CREME’ for goods in Classes 3 and 5 — Community trade mark application No 10 107 134

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) and Article 83 of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/63

Action brought on 19 November 2012 — Compagnie des montres Longines, Francillon v OHIM — Cheng (B)

(Case T-505/12)

2013/C 26/125

Language in which the application was lodged: English

Parties

Applicant: Compagnie des montres Longines, Francillon SA (Saint-Imier, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

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

Other party to the proceedings before the Board of Appeal: Xiuxiu Cheng (Budapest, Hungary)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 September 2012 in case R 193/2012-5; and.

—	Order the Defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in black and white ‘B’, for goods in classes 9 and 25 — Community trade mark application No 8483562

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: International trade mark registration No 401319 of the figurative mark representing a device of extended wings with a geometric design in the middle, for goods in classes 7, 9 and 14

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/64

Action brought on 19 November 2012 — Automobile Association v OHIM — Duncan Petersen Publishing (Folders)

(Case T-508/12)

2013/C 26/126

Language in which the application was lodged: English

Parties

Applicant: The Automobile Association Ltd (St. Helier, United Kingdom) (represented by: N. Walker, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Duncan Petersen Publishing Ltd (London, United Kingdom)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 September 2012 in case R 172/2011-3, and remit the matter back to OHIM for reconsideration; and.

—	Order OHIM to pay the costs of the applicant.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: A design for the product ‘folders’ — registered Community design No 1121404-0001

Proprietor of the Community design: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community design: The applicant

Grounds for the application for a declaration of invalidity: The applicant requested the invalidity of the RCD based on Articles 4 to 9 of Council Regulation No 6/2002

Decision of the Invalidity Division: Rejected the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

—	Infringement of Article 8 of Council Regulation No 6/2002;

—	Infringement of Article 8(2) in conjunction with Article 62 of Council Regulation No 6/2002; and

—	Infringement of Article 25(1)(a) in conjunction with Article 3(a) of Council Regulation No 6/2002.

26.1.2013

Official Journal of the European Union

C 26/64

Action brought on 16 November 2012 — Advance Magazine Publishers v OHIM — Nanso Group (TEEN VOGUE)

(Case T-509/12)

2013/C 26/127

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: C. Aikens, Barrister)

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

Other party to the proceedings before the Board of Appeal: Nanso Group Oy (Nokia, Finland)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 September 2012 in case R 147/2011-4 and reject the opposition; and

—	Order the opponent to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TEEN VOGUE’, for among others goods in class 25 — Community trade mark application No 3529476

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 in opposition: Swedish trade mark registration No 126124 of the word mark ‘VOGUE’, for goods in class 25; Swedish trade mark registration No 43934 for the figurative sign ‘Vogue’, for goods in class 25; Finish trade mark application No T 199 803 628 for the word mark ‘VOGUE’, for goods in class 25; Registered auxiliary trade name ‘VO Gue’

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation No 207/2009.

26.1.2013

Official Journal of the European Union

C 26/65

Action brought on 21 November 2012 — Conrad Electronic v OHIM — Sky IP International (EuroSky)

(Case T-510/12)

2013/C 26/128

Language in which the application was lodged: German

Parties

Applicant: Conrad Electronic SE (Hirschau, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, J. Künzel, D. Jestaedt, M. Bergermann, J. Vogtmeier and A. Kramer)

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

Other party to the proceedings before the Board of Appeal: Sky IP International Ltd (Isleworth, United Kingdom)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2012 in Case R 1183/2011-4;

—	Order the defendant to pay the costs including the costs incurred in the appeal proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘EuroSky’ for goods in Class 9 — Community trade mark application No 4 539 896

Proprietor of the mark or sign cited in the opposition proceedings: Sky IP International Ltd

Mark or sign cited in opposition: the national and Community word and figurative mark ‘SKY’ for goods and services in Classes 9, 16, 18, 25, 28, 35, 36, 38, 41, 42, 43 and 45

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/65

Action brought on 22 November 2012 — NCL v OHIM (NORWEGIAN GETAWAY)

(Case T-513/12)

2013/C 26/129

Language of the case: German

Parties

Applicant: NCL Corporation Ltd (Miami, United States of America) (represented by N. Grüger, lawyer)

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

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) in case R 1014/2012-4 of 12 September 2012 and refer the case back to the Board of Appeal;

—	in the alternative, annul the decision in respect of services in Class 39: ‘Arranging of cruises, Cruise ship services, Cruise arrangement’ and refer the case back to the Board of Appeal;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘NORWEGIAN GETAWAY’ for services in Class 39 — Community trade mark application No 10 281 939

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 7(2) of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/66

Action brought on 22 November 2012 — NCL v OHIM (NORWEGIAN BREAKAWAY)

(Case T-514/12)

2013/C 26/130

Language of the case: German

Parties

Applicant: NCL Corporation Ltd (Miami, United States of America) (represented by N. Grüger, lawyer)

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

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) in case R 1017/2012-4 of 12 September 2012 and refer the case back to the Board of Appeal;

—	in the alternative, annul the decision in respect of services in Class 39: ‘Arranging of cruises, Cruise ship services, Cruise arrangement’ and refer the case back to the Board of Appeal;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘NORWEGIAN BREAKAWAY’ for services in Class 39 — Community trade mark application No 10 281 905

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 7(2) of Regulation No 207/2009

26.1.2013

Official Journal of the European Union

C 26/66

Action brought on 22 November 2012 — El Corte Inglés v OHIM — English Cut (The English Cut)

(Case T-515/12)

2013/C 26/131

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela, J. Rivas Zurdo and I. Munilla Muñoz, lawyers)

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

Other party to the proceedings before the Board of Appeal: The English Cut, SL (Malaga, Spain)

Form of order sought

The applicant claims that the General Court should:

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in Case R 1673/2011-1, and declare that, pursuant to Article 8(1)(b) of Regulation No 207/2009, the action brought by the opponent before OHIM should have been upheld and the decision of the Opposition Division to grant Community trade mark application No 8 868 747‘The English Cut’ (word mark) should have been annulled;

—	order the defendant and the other party opposing this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The English Cut, SL

Community trade mark concerned: Word mark ‘The English Cut’, for goods in Class 25 — Community trade mark application No 8 868 747

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: National and Community word and figurative marks ‘El Corte Inglés’ for goods in Classes 25 and 35

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 and of Article 8(5) of that regulation.

26.1.2013

Official Journal of the European Union

C 26/67

Action brought on 27 November 2012 — mobile.international v OHIM — Kommission (PL mobile.eu)

(Case T-519/12)

2013/C 26/132

Language in which the application was lodged: German

Parties

Applicant: mobile.international GmbH (Kleinmachnow, Germany) (represented by: T. Lührig, lawyer)

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

Other party to the proceedings before the Board of Appeal: European Commission

Form of order sought

The applicant claims that the Court should,

—

annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in Case R 1401/2011-1 in respect of the following goods and services;

Class 9	:	Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; calculating machines, data processing equipment and computers, computer peripheral devices and computer programs (included in class 9); all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.
Class 16	:	Paper, cardboard and goods made from these materials (included in Class 16); printed matter; photographs; stationery; typewriters and office machines (except furniture); instructional and teaching material (included in Class 16); plastic material for packaging, namely covers, bags, boxes and foils; all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.
Class 35	:	Advertising; business administration; business management services; office functions; all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.
Class 36	:	Insurance; arranging of insurance; financial affairs; credit brokerage; monetary affairs; financial management; all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.
Class 38	:	Telecommunications and in particular services on the Internet; collating, providing and transmission of messages, information, images and texts; electronic advertising; all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.
Class 42	:	Scientific and technological services and research and design relating thereto; design and development of computer hardware and software; rental of computer software; provision of search engines for the Internet; all aforementioned goods only in relation to an online marketplace for the purchase and sale of vehicles, trailers and vehicle accessories.

—	in the alternative, annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in Case R 1401/2011-1 in respect of services in Classes 35, 38 and 42 to the extent referred to above;

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element ‘PL mobile.eu’ in respect of goods and services in Classes 9, 16, 35, 36, 38 and 42 — Community trade mark No 8 307 779

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The European Commission

Grounds for the application for a declaration of invalidity: The Community trade mark constitutes a heraldic imitation of the mullets of the European Union

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Decision of the Cancellation Division annulled and the Community trade mark declared invalid

Pleas in law:

—	Infringement of Article 7(1)(h) of Regulation No 207/2009 in conjunction with Article 6 of the Paris Convention

—	Infringement of Article 7(1)(g) of Regulation No 207/2009

—	Infringement of the principle of the protection of legitimate expectations

26.1.2013

Official Journal of the European Union

C 26/68

Action brought on 6 December 2012 — DeMaCo Holland v Commission

(Case T-527/12)

2013/C 26/133

Language of the case: Dutch

Parties

Applicant: DeMaCo Holland BV (Langedijk, Netherlands) (represented by: L. Linders and S. Bishop, lawyers)

Defendant: European Commission

Form of order sought

—	Declare the applicant’s claim admissible and well-founded;

—	consequently order Euratom to desist immediately from any use of the ‘redesign’ in respect of which the applicant has rights and, further, order Euratom to pay compensation to the applicant, provisionally estimated at EUR 100 000, on the basis of its non-contractual error;

—	order Euratom to pay the costs incurred in the present proceedings.

Pleas in law and main arguments

By its claim the applicant seeks compensation for the damage suffered as a result of the non-contractual error of the European Atomic Energy Community, represented by the European Commission, inasmuch as it made use of technical drawings belonging to the applicant and transmitted those drawings for use in a public procurement procedure by the European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy).

In support of its action the applicant claims that the defendant unlawfully made use of the applicant’s technical drawings.

The technical drawings created exclusively by the applicant — outside any contractual relationship between the parties — were used by the defendant without the applicant’s agreement. Furthermore, the defendant facilitated the use of the technical drawings by third parties, namely Fusion for Energy.

The knowingly unlawful use by the defendant of the applicant’s technical drawings constitutes unlawful conduct and infringes the applicant’s copyright.

The defendant has thus acquired an unauthorised economic advantage for itself on the basis of the applicant’s financial and intellectual efforts, which is contrary to fair commercial practice and fair competition.

The damage suffered consists of the applicant’s loss of profit as a result of Fusion for Energy’s call for tenders, which was made possible as a result of the defendant’s intervention, and remuneration for the disregard of the applicant’s intellectual property rights.

26.1.2013

Official Journal of the European Union

C 26/70

Action brought on 27 September 2012 — ZZ v Europol

(Case F-103/12)

2013/C 26/141

Language of the case: Dutch

Parties

Applicant: ZZ (represented by: W.J. Dammingh and N.D. Dane, lawyers)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of Europol’s decision, taken to implement the judgment of the Civil Service Tribunal of 29 June 2010 in Case F-37/09 Doyle v Europol, by which Europol granted the applicant a lump sum by way of compensation for the harm caused to her by the decision annulled by that judgment

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decision of 28 November 2011 by which the defendant awards the applicant EUR 3 000 in respect of compensation for the damage which she suffered, as full implementation of an earlier judgment of the Civil Service Tribunal, and the decision of 29 June 2012 by which the complaint brought by the applicant against the decision of 28 November 2011 was rejected;

—	order Europol to pay the costs, including the salary of the legal representative.

26.1.2013

Official Journal of the European Union

C 26/70

Action brought on 27 September 2012 — ZZ v Europol

(Case F-104/12)

2013/C 26/142

Language of the case: Dutch

Parties

Applicant: ZZ (represented by: W.J. Dammingh and N.D. Dane, lawyers)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of Europol’s decision, taken to implement the judgment of the Civil Service Tribunal of 29 June 2010 in Case F-27/09 Hanschmann v Europol, by which Europol granted the applicant a lump sum by way of compensation for the harm caused to him by the decision annulled by that judgment

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decision of 28 November 2011 by which the defendant awards the applicant EUR 13 000 in respect of compensation for the damage which he suffered, as full implementation of an earlier judgment of the Civil Service Tribunal, and the decision of 29 June 2012 by which the complaint brought by the applicant against the decision of 28 November 2011 was rejected;

—	order Europol to pay the costs, including the salary of the legal representative.

26.1.2013

Official Journal of the European Union

C 26/70

Action brought on 27 September 2012 — ZZ v Europol

(Case F-105/12)

2013/C 26/143

Language of the case: Dutch

Parties

Applicant: ZZ (represented by: W.J. Dammingh and N.D. Dane, lawyers)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of Europol’s decision, taken to implement the judgment of the Civil Service Tribunal of 29 June 2010 in Case F-44/09 Knöll v Europol, by which Europol granted the applicant a lump sum by way of compensation for the harm caused to her by the decision annulled by that judgment

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decision of 28 November 2011 by which the defendant awards the applicant EUR 20 000 in respect of compensation for the damage which she suffered, as full implementation of an earlier judgment of the Civil Service Tribunal, and the decision of 29 June 2012 by which the complaint brought by the applicant against the decision of 28 November 2011 was rejected;

—	order Europol to pay the costs, including the salary of the legal representative.

26.1.2013

Official Journal of the European Union

C 26/71

Action brought on 15 October 2012 — ZZ v Commission

(Case F-115/12)

2013/C 26/146

Language of the case: Italian

Parties

Applicant: ZZ (represented by: G. Cipressa, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the implied decision rejecting the claim for compensation for the harm purportedly suffered by the applicant as a result of the Commission’s sending a letter concerning the recovery of the sum of EUR 4 875 relating to the costs which the Court of First Instance ordered the applicant to pay in Case T-241/03.

Form of order sought

—	Annul the decision, whatever the form in which it was adopted, rejecting the claim of 19 July 2011;

—	annul the decision, whatever the form in which it was adopted, rejecting the complaint of 19 February 2012 against the decision of 19 July 2011;

—	in so far as necessary, annul the note of 12 June 2012, written in French, bearing the reference at the top of the right side of the first of five pages ‘Ref. Ares(2012)704847 — 13/06/2012’;

—	order the Commission to pay to the applicant the sum of EUR 5 500,00, together with interest on that sum at the rate of 10 % per annum, with annual capitalisation, with effect from 20 July 2011 until the date of actual payment of that sum;

—	order the Commission to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/72

Action brought on 22 October 2012 — ZZ v Council

(Case F-122/12)

2013/C 26/147

Language of the case: French

Parties

Applicant: ZZ (represented by: J. Lecuyer, lawyer)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision of the Council dismissing the applicant and compensation for the material and non-material damage suffered.

Form of order sought

—	Annul the decision taken by the Council dismissing the applicant and, so far as necessary, annul the rejection of his complaint against that decision;

—	order the Council to pay the applicant a sum of EUR 160 181,85 provisionally as compensation for the material damage suffered;

—	order the Council to pay the applicant a sum of EUR 25 000 provisionally as compensation for the non-material damage suffered;

—	order the Council to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/72

Action brought on 3 November 2012 — ZZ v OHIM

(Case F-125/12)

2013/C 26/149

Language of the case: German

Parties

Applicant: ZZ (represented by: H. Tettenborn, lawyer)

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

Subject-matter and description of the proceedings

Application for annulment of the applicant’s 2011 appraisal report and of the decision imposing the objectives, and application for damages

Form of order sought

—

annul the appraisal report concerning the applicant for 2011 in the version of 1 February 2012 and the e-mails of the defendant of 2 February 2012 at 14:51 and of 2 February 2012 at 15:49, in so far as OHIM’s imposition on the applicant of objectives to be achieved for the period 1 October 2011 to 30 September 2012 is contained therein;

—	order OHIM to pay to the applicant damages of an appropriate amount at the discretion of the Tribunal for the non-material damage suffered by him;

—	order OHIM to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/73

Action brought on 29 October 2012 — ZZ v Parliament

(Case F-128/12)

2013/C 26/150

Language of the case: French

Parties

Applicant: ZZ (represented by: A. Salerno and B. Cortese, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Application for annulment of the decision to recover, pursuant to Article 85(2) of the Staff Regulations, all of the dependent child allowance wrongly received by the applicant and not only the allowance that the applicant wrongly received during the past five years.

Form of order sought

—

annul the decision of the appointing authority of 9 December 2011 in so far as it seeks, pursuant to the second subparagraph of Article 85(2) of the Staff Regulations, to recover the full amount wrongly received since September 1999 and not only the amount wrongly received during the past five years on the ground that the appointing authority found that the applicant had deliberately misled the administration;

—	where necessary, annul the decision rejecting the complaint;

—	order the Parliament to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/73

Action brought on 31 October 2012 — ZZ v Parliament

(Case F-129/12)

2013/C 26/151

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi, C. Bernard-Glanz, A. Tymen, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decision to dismiss the applicant and the decision rejecting his request for assistance seeking recognition of psychological harassment, and a claim for damages.

Form of order sought

—	Declare the present action admissible and well founded;

—	annul the decision to dismiss the applicant dated 19 January 2012;

—	annul the decision dated 20 March 2012, rejecting the applicant’s request for assistance of 22 December 2011;

—	if necessary, annul the decision of the Secretary-General of the European Parliament, dated 20 July 2012, received on 24 July 2012, rejecting the applicant’s complaint of 30 March 2012 against the decision to dismiss him;

—	if necessary, annul the decision of the Secretary-General of the European Parliament, dated 8 October 2012, received on 11 October 2012, rejecting the applicant’s complaint of 22 June 2012 brought against the decision rejecting his request for assistance;

—	order the Parliament to pay EUR 120 000 in damages;

—	order the Parliament to pay all the costs.

26.1.2013

Official Journal of the European Union

C 26/73

Action brought on 7 November 2012 — ZZ and Others v Commission

(Case F-132/12)

2013/C 26/152

Language of the case: Italian

Parties

Applicants: ZZ and Others (represented by: F. Di Gianni and G. Coppo, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision rejecting the application made under Article 90(1) of the Staff Regulations for compensation for the non-material harm suffered by the applicants as a result of the murder of a member of their family, an official of the Commission, and his wife.

Form of order sought

—	Annul the decision of the Appointing Authority of 26 July 2012, notified on 31 July 2012;

—	Order the Commission to pay the sum of EUR 463 050 to each of the successors of the murdered official as compensation for the non-material harm suffered by them;

—	Order the Commission to pay the sum of EUR 308 700 to the first applicant as compensation for the non-material harm suffered by him;

—	Order the Commission to pay the sum of EUR 308 700 to the second applicant as compensation for the non-material harm suffered by him;

—	Order the Commission to pay the sum of EUR 154 350 to the third applicant as compensation for the non-material harm suffered by him;

—	Order the Commission to pay the sum of EUR 154 350 to the fourth applicant as compensation for the non-material harm suffered by him;

—	Order the Commission to pay the sum of EUR 574 000 to the successors of the murdered official in respect of their pain and suffering;

—	Order the Commission to pay compensatory interest and default interest accrued;

—	Order the defendant to pay all the costs.

26.1.2013

Official Journal of the European Union

C 26/74

Action brought on 9 November 2012 — ZZ v Council

(Case F-134/12)

2013/C 26/153

Language of the case: French

Parties

Applicant: ZZ (represented by: A. Coolen, J.-N. Louis, E. Marchal, D. Abreu Caldas and S. Orlandi, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment, firstly, of Council Decision 2011/866/EU of 19 December 2011 concerning the Commission’s proposal for a Council Regulation adjusting the remuneration and pension of the officials and other servants of the European Union and, secondly, the salary statements for January, February and March 2012 established pursuant to that decision.

Form of order sought

—

Declare that Council Decision 2011/866/EU of 19 December 2011 concerning the Commission’s proposal for a Council Regulation adjusting with effect from 1 July 2011 the remuneration and pension of the officials and other servants of the European Union and the correction coefficients applied thereto is unlawful;

—	Annul the response rejecting the claim of 30 July 2012 made against the salary statements for January, February and March 2012, established pursuant to Council Decision 2011/866/EU of 19 December 2011;

—

Order the Council to pay the applicant the arrears of salary and pension to which he is entitled from 1 July 2011 together with late-payment interest calculated, with effect from the date on which the arrears fell due, at the rate fixed by the ECB for main refinancing operations increased by two points;

—	Order the Council to pay the applicant a symbolic EUR 1 as compensation for the non-material damage suffered as a result of the administrative error committed by the adoption of Council Decision 2011/866/EU of 19 December 2011;

—	Order the Council to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/75

Action brought on 9 November 2012 — ZZ v Council

(Case F-136/12)

2013/C 26/155

Language of the case: French

Parties

Applicant: ZZ (represented by: M. Velardo, lawyer)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Form of order sought

—	Annul the decisions of the Council expressed in the salary statements of January 2012 et seq. and in the statements of 2011 inasmuch as they do not apply the adjustment rate of 1,7 % proposed by the Commission;

—

Order the Council to reimburse the applicant the difference between the salary amounts paid pursuant to the Council Decision of 19 December 2011 until the date of judgment in the present case and those which ought to have been paid to him had the adjustment been correctly calculated, together with interest at the rate fixed by the European Central Bank for main refinancing operations applicable during the relevant periods, increased by three and a half points, with effect from the date on which the sums of the principal claim fell due;

—	Order the Council to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/76

Action brought on 16 November 2012 — ZZ v Commission

(Case F-140/12)

2013/C 26/159

Language of the case: French

Parties

Applicant: ZZ (represented by: R. Duta, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the refusal to grant the confirmatory application made by the applicant to the Commission for access to several questions asked in the course of the pre-selection procedure for open competition EPSO/AD/230 231/12.

Form of order sought

—	annul the Commission’s decision refusing the applicant’s confirmatory application for access to documents;

—

where necessary and, in particular, in so far as their nature as decisions is established, annul EPSO’s decisions of 20 July 2012 in accordance with which the applicant was refused access to seven of the questions asked in the course of the pre-selection procedure for open competition EPSO/AD 230-231;

—	order the Commission to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/77

Action brought on 16 November 2012 — ZZ v Commission

(Case F-142/12)

2013/C 26/161

Language of the case: French

Parties

Applicant: ZZ (represented by: B. Cambier and A. Paternostre, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

The annulment of the decision of the Commission on the application for recognition of occupational disease, which the applicant brought under Article 73 of the Staff Regulations, conferring on him a partial permanent invalidity rate of 20 % and establishing the date of stabilisation as 25 February 2010 and the compensation for his material and non-material damage.

Form of order sought

—

Declare the Commission liable for infringement of the principle that action must be taken within a reasonable period and for various faults that it, or its bodies, committed during the investigation of the application for recognition of occupational disease brought by the applicant on the basis of the Article 73 of the Staff Regulations, in so doing;

—	annul the decisions of the appointing authority of 11 January and 7 August 2012;

—	order the Commission to pay to the applicant and to his family an amount of EUR 100 000 to make good the non-material damage caused specifically to the applicant independently of his illness;

—

declare the Commission liable for various faults, committed by it and its bodies, which contributed to the appearance, maintenance and deterioration of the applicant’s state of health and order it, consequently, to pay to the applicant the sum of EUR 1 798 650 to compensate him for his material loss and EUR 145 850 in respect of non-material damage and miscellaneous expenditure; that overall amount may be reduced by EUR 268 679,44, which has already been paid to the applicant under Article 73 of the Staff Regulations;

—	order the Commission to pay interest at the rate of 12 % on all the abovementioned amounts, from the month of November 2004, the date on which the applicant’s application on the basis of Article 73 of the Staff Regulations could have been resolved;

—	order the Commission to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/77

Action brought on 21 November 2012 — ZZ v Commission

(Case F-143/12)

2013/C 26/162

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi, A. Tymen, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision of EPSO not to include the applicant in the list of persons who have passed the tests at the end of the programme raining which is part of the certification procedure and a claim for damages.

Form of order sought

—	Annul the decision of EPSO of 16 December 2011 excluding the applicant from the list of officials who have received certification under the 2010-2011 certification exercise;

—	as necessary, annul the decision of EPSO of 16 August 2012 rejecting the applicant’s complaint;

—	award damages of EUR 5 000;

—	order the Commission to pay all the costs.

26.1.2013

Official Journal of the European Union

C 26/77

Action brought on 21 November 2012 — ZZ v Commission

(Case F-144/12)

2013/C 26/163

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision on the transfer of the applicant’s pension rights under the European Union pension scheme applying the new General Implementing Provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations.

Form of order sought

—	Declare Article 9 of the General Implementing Provisions for Article 11(2) of Annex VIII of the Staff Regulations unlawful;

—	annul the decision of 3 February 2012 to apply the parameters referred to in the General Implementing Provisions for Article 11(2) of Annex VIII of the Staff Regulations of 3 March 2011 to the transfer of the applicant’s pension rights;

—	order the Commission to pay the costs.

26.1.2013

Official Journal of the European Union

C 26/78

Action brought on 28 November 2012 — ZZ v Commission

(Case F-146/12)

2013/C 26/164

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Form of order sought

—	Declare Article 9 of the General Implementing Provisions for Article 11(2) of Annex VIII of the Staff Regulations unlawful;

—	annul the decision of 3 February 2012 to apply the parameters referred to in the General Implementing Provisions for Article 11(2) of Annex VIII of the Staff Regulations of 3 March 2011 to the transfer of the applicant’s pension rights;

—	order the Commission to pay the costs.

		ISSN 1977-091X doi:10.3000/1977091X.C_2013.026.eng
Official Journal of the European Union		C 26

English edition	Information and Notices	Volume 56 26 January 2013

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2013/C 026/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 9, 12.1.2013	1