21.11.2009

Official Journal of the European Union

C 282/2

Judgment of the Court (Third Chamber) of 6 October 2009 — GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc (C-501/06 P), Commission of the European Communities (C-513/06 P), European Association of Euro Pharmaceutical Companies (EAEPC) (C-515/06 P), Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) (C-519/09 P) v Commission of the European Communities, European Association of Euro Pharmaceutical Companies (EAEPC), Bundesverband der Arzneimittel-Importeure eV, Spain Pharma SA, Asociación de exportadores españoles de productos farmacéuticos (Aseprofar)

(Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P) (1)

(Appeals - Agreements, decisions and concerted practices - Restriction of parallel trade in medicines - Article 81(1) EC - Restriction of competition by object - National price regulations - Replacement of grounds - Article 81(3) EC - Contribution to promoting technical progress - Review - Burden of proof - Statement of reasons - Interest in bringing proceedings)

2009/C 282/02

Language of the case: English

Parties

Appellants: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc, (represented by: I. Forrester QC, S. Martínez Lage, abogado, A. Komninos, dikigoros, A. Schulz, Rechtsanwalt), Commission of the European Communities (represented by: T. Christoforou, F. Castillo de la Torre and E. Gippini Fournier, acting as Agents), European Association of Euro Pharmaceutical Companies (EAEPC) (represented by: M. Hartmann-Rüppel and W. Rehmann, Rechtsanwälte), Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) (represented by: M. Araujo Boyd and J. Buendía Sierra, abogados)

Other parties to the proceedings: Commission of the European Communities (represented by T. Christoforou, F. Castillo de la Torre and E. Gippini Fournier, acting as Agents), European Association of Euro Pharmaceutical Companies (EAEPC) (represented by: M. Hartmann-Rüppel and W. Rehmann, Rechtsanwälte), Bundesverband der Arzneimittel-Importeure eV (represented by: W. Rehmann, Rechtsanwalt), Spain Pharma SA, Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) (represented by: M. Araujo Boyd and J. Buendía Sierra, abogados)

Intervener in support of the Commission: Republic of Poland (represented by: E. Ośniecka-Tamecka, M. Kapko and K. Majcher, acting as Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 27 September 2006 in Case T-168/01 GlaxoSmithKline Services v Commission, by which the Court of First Instance annulled in part Commission Decision C(2001)1202 final of 8 May 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty (Cases IV/36.957/F3 Glaxo Wellcome, IV/36.997/F3 Aseprofar and Fedifar, IV/37.121/F3 Spain Pharma, IV/37.138/F3 BAI and IV/37.380/F3 EAEPC) — Prices imposed by the applicant on wholesalers for the sale of its medicines outside the Spanish system of prices fixed by the health services

Operative part of the judgment

The Court:

1.	Dismisses the appeals brought by GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc, the Commission of the European Communities, the European Association of Euro Pharmaceutical Companies (EAEPC) and the Asociación de exportadores españoles de productos farmacéuticos (Aseprofar);

2.	Orders each party to bear its own costs relating to the respective procedures;

3.	Orders the Republic of Poland to bear its own costs.

(1) OJ C 42, 24.2.2007.

OJ C 56, 10.3.2007.

21.11.2009

Official Journal of the European Union

C 282/3

Judgment of the Court (Second Chamber) of 24 September 2009 — Erste Group Bank AG, formerly Erste Bank der österreichischen Sparkassen AG (C-125/07 P), Raiffeisen Zentralbank Österreich AG (C-133/07 P), Bank Austria Creditanstalt AG (C-135/07 P), Österreichische Volksbanken AG (C-137/07 P) v Commission of the European Communities

(Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P) (1)

(Appeal - Agreements, decisions and concerted practices - Fixing by Austrian banks of credit and debit interest rates - ‘Lombard Club’ - Effect on trade between Member States - Calculation of fines - Takeover of undertakings - Concrete impact on the market - Implementation of the cartel)

2009/C 282/03

Language of the case: German

Parties

Appellants: Erste Group Bank AG, formerly Erste Bank der österreichischen Sparkassen AG (C-125/07 P) (represented by: F. Montag, Rechtsanwalt), Raiffeisen Zentralbank Österreich AG (C-133/07 P) (represented by: S. Völcker and G. Terhorst, Rechtsanwälte), Bank Austria Creditanstalt AG (C-135/07 P) (represented by: C. Zschocke and J. Beninca, Rechtsanwälte), Österreichische Volksbanken AG (C-137/07 P) (represented by: A. Ablasser, R. Bierwagen and F. Neumayr, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities (represented by: A. Bouquet and R. Sauer, Agents, D. Waelbroeck, avocat, and U. Zinsmeister, Rechstanwältin)

Re:

Appeals brought against the judgment of the Court of First Instance (Second Chamber) of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02, here with regard to Case T-264/02 Erste Bank der österreichischen Sparkassen v Commission, by which the Court dismissed in part the action, primarily, for annulment of Commission Decision 2004/138/EC of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/36.571/D-1: Austrian banks — ‘Lombard Club’) (OJ 2004 L 56, p. 1) and, in the alternative, for the reduction of the fines imposed on the applicants — Cartel concerning the banking products and services market — Effect on trade between Member States — Method of calculating fines

Operative part of the judgment

The Court:

1.	Dismisses the appeals;

2.	Orders Erste Group Bank AG, formerly Erste Bank der österreichischen Sparkassen AG, Raiffeisen Zentralbank Österreich AG, Bank Austria Creditanstalt AG and Österreichische Volksbanken AG to pay the costs.

(1) OJ C 117, 26.5.2007.

21.11.2009

Official Journal of the European Union

C 282/3

Judgment of the Court (Third Chamber) of 6 October 2009 — Commission of the European Communities v Republic of Finland

(Case C-335/07) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 91/271/EEC - Treatment of urban waste water - Failure to require more stringent treatment of nitrogen in all treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent)

2009/C 282/04

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: I. Koskinen, L. Parpala, M. Patakia and S. Pardo Quintillán, Agents)

Defendant: Republic of Finland (represented by: J. Heliskoski and A. Guimaraes-Purokoski, Agents)

Intervener in support of the defendant: Kingdom of Sweden (represented by: A. Falk, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Art. 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) — Failure to require that all urban waste water collected from agglomerations of more than 10 000 population equivalent be subject to more efficient treatment

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

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

(1) OJ C 235, 6.10.2007.

21.11.2009

Official Journal of the European Union

C 282/4

Judgment of the Court (Second Chamber) of 1 October 2009 — Commission of the European Communities v Council of the European Union

(Case C-370/07) (1)

(Action for annulment - Establishment of the positions to be adopted on behalf of the Community in a body established by a convention - Obligation to state reasons - Reference to the legal basis - 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES))

2009/C 282/05

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: G. Valero Jordana and C. Zadra, Agents)

Defendant: Council of the European Union (represented by: J.-P. Jacqué, F. Florindo Gijón and K. Michoel, Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and I. Rao, Agents, and D. Wyatt QC)

Re:

Annulment of the Council Decision of 24 May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Hague, Netherlands, 3-15 June 2007 — Choice of legal basis

Operative part of the judgment

The Court:

Annuls the decision of the Council of the European Union of 24 May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted at the 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), The Hague (Netherlands), 3 to 15 June 2007.

2.	Maintains in force the effects of the annulled decision.

3.	Orders the Council of the European Union to pay the costs.

4.	Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

(1) OJ C 223, 22.09.2007.

21.11.2009

Official Journal of the European Union

C 282/4

Judgment of the Court (Third Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Sweden

(Case C-438/07) (1)

2009/C 282/06

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: I. Koskinen, L. Parpala, M. Patakia and S. Pardo Quintillán, Agents)

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

Intervener in support of the defendant: Republic of Finland (represented by: J. Heliskoski and A. Guimaraes-Purokoski, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), as amended by Commission Directive 98/15/EC of 27 February 1998 (OJ 1998 L 67, p. 29) — Failure to ensure, at the latest by 31 December 1998, that all discharges from treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent released into sensitive areas or their catchment areas fulfil the relevant requirements of Annex I to Council Directive 91/271/EEC.

Operative part of the judgment

The Court:

Declares that, by not ensuring, by 31 December 1998 at the latest, that discharges from the treatment plants of urban waste water from agglomerations of more than 10 000 population equivalent listed in Annexes 2 and 3 to its defence, as amended by its rejoinder, which enter directly into sensitive areas or their catchment areas fulfil the relevant requirements of Annex I to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, as amended by Commission Directive 98/15/EC of 27 February 1998, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(2), (3) and (5) of that directive;

2.	Dismisses the action as to the remainder;

3.	Orders the Commission of the European Communities, the Kingdom of Sweden and the Republic of Finland to bear their own costs.

(1) OJ C 283, 24.11.2007.

21.11.2009

Official Journal of the European Union

C 282/5

Judgment of the Court (Second Chamber) of 1 October 2009 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Proceedings brought by Compañía Española de Comercialización de Aceite SA

(Case C-505/07) (1)

(Reference for a preliminary ruling - Common organisation of the market in oils and fats - Regulation No 136/66/EEC - Article 12a - Storage of olive oil without Community financing - Powers of national competition authorities)

2009/C 282/07

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Compañía Española de Comercialización de Aceite SA

Intervening parties: Associación Española de la Industria y Comercio Exportador de Aceite de Oliva (Asoliva), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (Anierac), Administración del Estado

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Article 12a of Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221) as amended by Council Regulation (EC) No 1638/98 (OJ 1998 L 210, p 32), of Council Regulation (EC) No 952/97 of 20 May 1997 on producer groups and associations thereof (OJ 1997 L 142, p. 30) and of Regulation No 26 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p. 129) — Meaning of ‘authorised body’ — Meaning of producer groups and associations thereof — Storage

Operative part of the judgment

A public limited company, the capital of which is held predominantly by olive oil producers, oil pressers and olive growers’ cooperatives, and the remainder of the capital of which is held by financial entities, is capable of coming within the concept of a body, within the meaning of Article 12a of Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats, as amended by Council Regulation (EC) No 1638/98 of 20 July 1998, which may be authorised to conclude a contract for the private storage of olive oil under that provision, subject to it meeting the conditions laid down therein.

The ‘approval by the Member State’, which bodies within the meaning of Article 12a of Regulation No 136/66 — as amended by Regulation No 1638/98 — must have, can be obtained in the context of application for an individual exemption (‘authorisation’) submitted to the national competition authorities, provided that those authorities have the means necessary to verify the suitability of the body which has submitted the application to carry out the private storage of olive oil in compliance with the legal requirements.

3.	Article 12a of Regulation No 136/66, as amended by Regulation No 1638/98, does not preclude a mechanism for the purchase and storage of olive oil which is agreed and financed privately, and which has not undergone the authorisation procedure to which that provision refers.

To the extent that the national competition authorities refrain from taking any measure which might undermine or create exceptions to the common organisation of the market in olive oil and from taking decisions which conflict with those of the Commission of the European Communities or create the risk of such conflict, they can apply national competition law to an agreement which is likely to affect the market in olive oil at Community level.

(1) OJ C 37, 09.02.2008.

21.11.2009

Official Journal of the European Union

C 282/5

Judgment of the Court (First Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-562/07) (1)

(Failure of a Member State to fulfil obligations - Free movement of capital - Article 56 EC and Article 40 of the EEA Agreement - Direct taxation - Natural persons - Taxation of capital gains - Difference in treatment of residents and non residents)

2009/C 282/08

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and I. Martínez del Peral, acting as Agents)

Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 39 EC and 56 EC and of Articles 28 and 40 of the EEA Agreement — Difference in treatment, with regard to the taxation of income received in Spain, between residents and non-residents

Operative part of the judgment

The Court:

Declares that, by treating differently, until 31 December 2006, capital gains realised in Spain according to whether they were made by residents or by non-residents, the Kingdom of Spain failed to fulfil its obligations under Article 56 EC and Article 40 of the Agreement on the European Economic Area of 2 May 1992.

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

(1) OJ C 64, 8.3.2008.

21.11.2009

Official Journal of the European Union

C 282/6

Judgment of the Court (First Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Raad van State — Netherlands) — Minister voor Wonen, Wijken en Integratie v Woningstichting Sint Servatius

(Case C-567/07) (1)

(Free movement of capital - Article 56 EC - Restrictions - Justification - Housing policy - Services of general economic interest)

2009/C 282/09

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Wonen, Wijken en Integratie

Defendant: Woningstichting Sint Servatius

Re:

Reference for a preliminary ruling — Raad van State — Interpretation of Articles 56 EC, 58 EC, 86(2) EC, 87 EC and 88 EC — National legislation which, in the absence of prior authorisation by the Minister concerned, prohibits cross-border activities on the part of an undertaking required by statute to operate in furtherance of the housing policy of the Member State in question — Housing policy and public interest

Operative part of the judgment

Article 56 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which makes the exercise of cross-frontier activities of institutions approved under Article 70(1) of the Housing Law (Woningwet) in relation to housing matters subject to prior administrative authorisation, in so far as such legislation is not based on objective, non-discriminatory criteria which are known in advance and which are capable of adequately circumscribing the exercise by the national authorities of their discretion, a matter which falls to be determined by the national court.

(1) OJ C 64, 8.3.2008.

21.11.2009

Official Journal of the European Union

C 282/6

Judgment of the Court (Second Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Special Commissioners of Income Tax, London –United Kingdom) — HSBC Holdings plc, Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs

(Case C-569/07) (1)

(Indirect taxation - Raising of capital - Levying of a duty of 1,5 % on the transfer or issue of shares into a clearance service)

2009/C 282/10

Language of the case: English

Referring court

Special Commissioners of Income Tax, London

Parties to the main proceedings

Applicant: HSBC Holdings plc, Vidacos Nominees Ltd

Defendant: The Commissioners of Her Majesty’s Revenue & Customs

Re:

Reference for a preliminary ruling — Special Commissioners of Income Tax, London — Interpretation of Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ 1969 L 249, p. 5), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23), and of Articles 43, 49 and 56 EC — Offer by a company (‘A’) established in a Member State to acquire the shares of a company (‘B’) established in another Member State in exchange for the issue of shares in company A on the stock market of the other Member State — Imposition of a duty of 1.5 % on the transfer or issuing of shares in a clearance service

Operative part of the judgment

Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that it prohibits the levying of a duty, such as that at issue in the main proceedings, on the issue of shares into a clearance service.

(1) OJ C 64, 8.3.2008.

21.11.2009

Official Journal of the European Union

C 282/7

Judgment of the Court (Fourth Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Tribunal du travail de Nivelles — Belgium) — Ketty Leyman v Institut national d’assurance maladie-invalidité (INAMI)

(Case C-3/08) (1)

(Reference for a preliminary ruling - Social security schemes - Invalidity benefits - Regulation (EEC) No 1408/71 - Article 40(3) - Different benefit schemes in the Member States - Disadvantages for migrant workers - Contributions on which there is no return)

2009/C 282/11

Language of the case: French

Referring court

Tribunal du travail de Nivelles

Parties to the main proceedings

Applicant: Ketty Leyman

Defendant: Institut national d’assurance maladie-invalidité (INAMI)

Re:

Reference for a preliminary ruling — Tribunal du travail de Nivelles (Belgium) — Lawfulness, in the light of Article 18 EC, of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 149, p. 2) as amended — Invalidity allowance — Obstacle to the exercise of free movement as a result of the existence of different indemnification schemes

Operative part of the judgment

Article 39 EC must be interpreted as precluding application by the competent authorities of a Member State of national legislation which, in accordance with Article 40(3)(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, makes acquisition of the right to invalidity benefits subject to the condition that a period of primary incapacity of one year has elapsed, where such application has the result that a migrant worker has paid into the social security scheme of that Member State contributions on which there is no return and is therefore at a disadvantage by comparison with a non-migrant worker.

(1) OJ C 79, 29.3.2008.

21.11.2009

Official Journal of the European Union

C 282/7

Judgment of the Court (First Chamber) of 6 October 2009 (Reference for a preliminary ruling from the Juzgado de Primera Instancia No 4 de Bilbao — Spain) — Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira

(Case C-40/08) (1)

(Directive 93/13/EEC - Consumer contracts - Unfair arbitration clause - Measure void - Arbitration award which has become final - Enforcement - Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void - Principles of equivalence and effectiveness)

2009/C 282/12

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 4 de Bilbao

Parties to the main proceedings

Applicant: Asturcom Telecomunicaciones SL

Defendant: Cristina Rodríguez Nogueira

Re:

Reference for a preliminary ruling — Juzgado de Primera Instancia No 4 de Bilbao — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Adequate and effective means to prevent the continued use of unfair terms — Application for the enforcement of a final arbitration award made in default on the basis of an unfair arbitration clause

Operative part of the judgment

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

(1) OJ C 92, 12.4.2008.

21.11.2009

Official Journal of the European Union

C 282/8

Judgment of the Court (First Chamber) of 1 October 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg — Austria) — Arthur Gottwald v Bezirkshauptmannschaft Bregenz

(Case C-103/08) (1)

(Freedom of movement for persons - Citizenship of the Union - Article 12 EC - Issue of an annual toll disc in respect of a motor vehicle free of charge to disabled persons - Provisions restricting the issue of that disc to disabled persons resident or ordinarily resident in national territory)

2009/C 282/13

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg

Parties to the main proceedings

Applicant: Arthur Gottwald

Defendant: Bezirkshauptmannschaft Bregenz

Re:

Reference for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) — Interpretation of Article 12 of the EC Treaty — Discrimination on grounds of nationality — National legislation under which a toll disc made available free of charge to disabled persons is granted only to persons resident or ordinarily resident in national territory.

Operative part of the judgment

Article 12 EC must be interpreted as meaning that it does not preclude a national rule, such as that at issue in the main proceedings, which restricts the issue of an annual toll disc free of charge to those disabled persons who are resident or ordinarily resident in the territory of the Member State concerned, including also those persons who regularly travel to that State for professional or personal reasons.

(1) OJ C 142, 7.6.2008.

21.11.2009

Official Journal of the European Union

C 282/8

Judgment of the Court (Grand Chamber) of 6 October 2009 (reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands)) — European arrest warrant issued against Dominic Wolzenburg

(Case C-123/08) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant and surrender procedures between Member States - Article 4(6) - Ground for optional non-execution of the European arrest warrant - Implementation in national law - Person arrested a national of the issuing Member State - Non-execution of the European arrest warrant by the executing Member State conditional upon the person having spent a period of five years in its territory - Article 12 EC)

2009/C 282/14

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Dominic Wolzenburg

Re:

Reference for a preliminary ruling — Interpretation of Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) — Possibility for the executing judicial authority to refuse to execute a European arrest warrant issued for the purposes of execution of a custodial sentence against a person who is staying in or a resident of the executing Member State — Concepts of ‘resident’ and ‘staying in’ — Interpretation of Articles 12 EC, 17 EC and 18 EC — National legislation allowing different treatment by the executing judicial authority of the requested person if he refuses to be surrendered, depending on whether he is a national of the executing Member State or of another Member State

Operative part of the judgment

A national of one Member State who is lawfully resident in another Member State is entitled to rely on the first paragraph of Article 12 EC against national legislation, such as the Law on the surrender of persons (Overleveringswet), of 29 April 2004, which lays down the conditions under which the competent judicial authority can refuse to execute a European arrest warrant issued with a view to the enforcement of a custodial sentence.

Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, in the case of a citizen of the Union, the Member State of execution cannot, in addition to a condition as to the duration of residence in that State, make application of the ground for optional non-execution of a European arrest warrant laid down in that provision subject to supplementary administrative requirements, such as possession of a residence permit of indefinite duration.

Article 12 EC is to be interpreted as not precluding the legislation of a Member State of execution under which the competent judicial authority of that State is to refuse to execute a European arrest warrant issued against one of its nationals with a view to the enforcement of a custodial sentence, whilst such a refusal is, in the case of a national of another Member State having a right of residence on the basis of Article 18(1) EC, subject to the condition that that person has lawfully resided for a continuous period of five years in that Member State of execution.

(1) OJ C 116, 9.5.2008.

21.11.2009

Official Journal of the European Union

C 282/9

Judgment of the Court (Grand Chamber) of 6 October 2009 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV, MIC Operations BV

(Case C-133/08) (1)

(Rome Convention on the law applicable to contractual obligations - Applicable law in the absence of choice - Charter-party - Connecting criteria - Separability)

2009/C 282/15

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Intercontainer Interfrigo SC (ICF)

Defendant: Balkenende Oosthuizen BV, MIC Operations BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 4 of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 — Concept of a contract for the carriage of goods — Constituent elements — Voyage charter party — Applicable law in the absence of choice — Connecting criteria

Operative part of the judgment

The last sentence of Article 4(4) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, must be interpreted as meaning that the connecting criterion provided for in the second sentence of Article 4(4) applies to a charter-party, other than a single voyage charter-party, only when the main purpose of the contract is not merely to make available a means of transport, but the actual carriage of goods.

The second sentence of Article 4(1) of the Convention must be interpreted as meaning that a part of a contract may be governed by a law other than that applied to the rest of the contract only where the object of that part is independent.

Where the connecting criterion applied to a charter-party is that set out in Article 4(4) of the Convention, that criterion must be applied to the whole of the contract, unless the part of the contract relating to carriage is independent of the rest of the contract.

Article 4(5) of the Convention must be construed as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in Article 4(2) to (4) of the Convention, it is for the court to disregard those criteria and apply the law of the country with which the contract is most closely connected.

(1) OJ C 158, 21.06.2008.

21.11.2009

Official Journal of the European Union

C 282/9

Judgment of the Court (First Chamber) of 1 October 2009 — Foshan Shunde Yongjian Housewares & Hardware Co. Ltd v Council of the European Union, Commission of the European Communities, Vale Mill (Rochdale) Ltd, Pirola SpA, Colombo New Scal SpA, Italian Republic

(Case C-141/08 P) (1)

(Appeals - Commercial policy - Dumping - Imports of ironing boards originating in China - Regulation (EC) No 384/96 - Articles 2(7)(c) and 20(4) and (5) - Market economy treatment - Rights of the defence - Anti-dumping investigation - Periods granted to undertakings to submit their representations)

2009/C 282/16

Language of the case: French

Parties

Appellant: Foshan Shunde Yongjian Housewares & Hardware Co. Ltd (represented by: J.-F. Bellis, avocat, and G. Vallera, Barrister)

Other parties to the proceedings: Council of the European Union (represented by: J.-P. Hix, Agent, E. McGovern, Barrister, and B. O’Connor, Solicitor), Commission of the European Communities (represented by: H. van Vliet, T. Scharf and K. Talabér-Ritz, Agents), Vale Mill (Rochdale) Ltd, Pirola SpA, Colombo New Scal SpA (represented by: G. Berrisch and G. Wolf, Rechtsanwälte), the Italian Republic (represented by: R. Adam, Agent, and W. Ferrante, avvocato dello Stato)

Re:

Appeal against the judgment of the Court of First Instance (Sixth Chamber) of 29 January 2008 in Case T-206/07 Foshan Shunde Yongjian Housewares & Hardware v Council by which the Court of First Instance dismissed the action brought by the appellant for annulment of Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12), inasmuch as it imposes an anti-dumping duty on imports of ironing boards manufactured by the appellant — Error of law as a result of the material inaccuracy of the findings made by the Court of First Instance and the absence of any penalty for the breach of the rights of the defence established by the Court of First Instance — Interpretation of Articles 2(7)(c) and 20(4) and (5) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) — Notion of an undertaking ‘operating in market economy conditions’ and scope of the minimum period of 10 days granted to an undertaking subject to an anti-dumping investigation to submit any representations

Operative part of the judgment

The Court:

Sets aside the judgment of the Court of First Instance of 29 January 2008 in Case T-206/07 Foshan Shunde Yongjian Housewares & Hardware v Council in so far as the Court of First Instance found that Foshan Shunde Yongjian Housewares & Hardware Co. Ltd’s rights of defence were not adversely affected by the infringement of Article 20(5) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community;

Annuls Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine, in so far as it imposes an anti-dumping duty on imports of ironing boards manufactured by Foshan Shunde Yongjian Housewares and Hardware Co. Ltd.;

3.	Orders the Council of the European Union to pay the cost of the proceedings at first instance and the appeal proceedings;

4.	Orders the Commission of the European Communities, Vale Mill (Rochdale) Ltd, Pirola SpA, Colombo New Scal SpA and the Italian Republic to bear their own costs.

(1) OJ C 158, 21.6.2008.

21.11.2009

Official Journal of the European Union

C 282/10

Judgment of the Court (First Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-153/08) (1)

(Failure of a Member State to fulfil obligations - Freedom to provide services - Article 49 EC and Article 36 of the EEA Agreement - Direct taxation - Income tax - Tax exemption restricted to winnings from lotteries and games of chance organised by certain national bodies and entities)

2009/C 282/17

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and L. Lozano Palacios, Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 EC and Article 36 EEA — National legislation under which amounts won in lotteries and games of chance organised abroad, but not in certain lotteries or games of chance organised in Spain, are subject to income tax.

Operative part of the judgment

The Court:

Declares that, by maintaining in force fiscal legislation which exempts winnings from lotteries, games of chance and betting organised in the Kingdom of Spain by certain public bodies and entities established in that Member State and pursuing social or charitable non-profit-making activities, without that same exemption being granted to winnings from lotteries, games of chance and betting organised by bodies and entities established in another Member State of the European Union or European Economic Area and pursuing the same type of activities, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC and Article 36 of the Agreement on the European Economic Area of 2 May 1992;

2.	Dismisses the action as to the remainder;

3.	Orders the Commission of the European Communities and the Kingdom of Spain to bear their own costs.

(1) OJ C 142, 7.6.2008.

21.11.2009

Official Journal of the European Union

C 282/11

Judgment of the Court (First Chamber) of 1 October 2009 (reference for a preliminary ruling from the Finanzgericht Köln — Germany) — Gaz de France — Berliner Investissement SA v Bundeszentralamt für Steuern

(Case C-247/08) (1)

(Free movement of capital - Profits distributed to a parent company exempt from withholding tax in the Member State of the subsidiary - Concept of ‘company of a Member State’ - ‘Société par actions simplifiée’ under French law)

2009/C 282/19

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Gaz de France — Berliner Investissement SA

Defendant: Bundeszentralamt für Steuern

Re:

Reference for a preliminary ruling — Finanzgericht Köln (Germany) — Interpretation of Articles 43 EC, 48 EC, 56(1) EC and 58(1)(a) and (3) EC, and Article 2(a) and paragraph (f) of the Annex to Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6) — Concept of ‘company of a Member State’ — Refusal, in the Member State of the subsidiary, to grant an exemption from withholding tax to a parent company taking the legal form of a ‘société par actions simplifiée’ in French law, since that form of company does not, at the material time, appear on the list in the annex to the directive

Operative part of the judgment

Article 2(a) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, read in conjunction with point (f) of the annex to that directive, must be interpreted as meaning that a company under French law in the form of a ‘société par actions simplifiée’ cannot be considered to be a ‘company of a Member State’ within the meaning of that directive before that directive was amended by Council Directive 2003/123/EC of 22 December 2003;

2.	Examination of the question has not revealed any factor of such a kind as to affect the validity of Article 2(a) of Directive 90/435 read in conjunction with point (f) of the annex thereto and Article 5(1) of that directive.

(1) OJ C 223, 30.08.2008.

21.11.2009

Official Journal of the European Union

C 282/11

Judgment of the Court (Sixth Chamber) of 1 October 2009 — Commission of the European Communities v Republic of Malta

(Case C-252/08) (1)

(Failure of a Member State to fulfil obligations - Pollution and nuisance - Combustion plants - Limitation of emissions of certain pollutants into the air)

2009/C 282/20

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: L. Flynn and A. Alcover San Pedro, Agents)

Defendant: Republic of Malta (represented by: S. Camilleri, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 4(1) in conjunction with Annexes IV A, VI A and VII A, and of Article 12 in conjunction with Annexe VIII A.2 of Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p. 1) — Non-compliance with the emission limit values laid down in respect of sulphur dioxide, nitrogen oxides and dust — Delimara and Marsa installations

Operative part of the judgment

The Court:

Declares that, by failing correctly to apply Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants in relation to the operation of the Phase One steam plant of the Delimara and Marsa power stations, the Republic of Malta has failed to fulfil its obligations under Articles 4(1) and 12 of that directive in conjunction with Part A of Annex IV, Part A of Annex VI, Part A of Annex VII and Part A.2 of Annex VIII thereto;

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

(1) OJ C 197, 2.08.2008.

21.11.2009

Official Journal of the European Union

C 282/12

Judgment of the Court (Second Chamber) of 6 October 2009 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Klagenfurt (Austria)) — SPÖ Landesorganisation Kärnten v Finanzamt Klagenfurt

(Case C-267/08) (1)

(VAT - Entitlement to deduct input tax - Concept of ‘economic activities’ - Regional groups of a political party - Advertising activities benefiting the party’s local groups - Expenditure relating to those activities exceeding income)

2009/C 282/21

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Klagenfurt

Parties to the main proceedings

Applicant: SPÖ Landesorganisation Kärnten

Defendant: Finanzamt Klagenfurt

Re:

Reference for a preliminary ruling — Unabhängiger Finanzsenat, Außenstelle Klagenfurt (Austria) — Interpretation of Article 4(1) and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Concept of ‘economic activity’ — Organisation by the provincial organisation of a political party of promotional activities for the benefit of the district organisations of that party, taking the form of events, the production and delivery of publicity material and the organisation of an annual ball — Expenses related to these activities considerably exceeding the revenue derived from passing on the expense of some of those activities to the district organisations and from the sale of the tickets for the ball

Operative part of the judgment

Article 4(1) and (2) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that, external advertising activities carried out by a section of a Member State’s political party is not to be regarded as an economic activity.

(1) OJ C 247, 27.9.2008.

21.11.2009

Official Journal of the European Union

C 282/12

Judgment of the Court (Sixth Chamber) of 1 October 2009 — Commission of the European Communities v French Republic

(Case C-468/08) (1)

(Failure of a Member State to fulfil obligations - Recognition of professional qualifications - Directive 2005/36/EC - Failure to transpose)

2009/C 282/22

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: French Republic (represented by: G. de Bergues and B. Messmer, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with 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) or to inform thereof

Operative part of the judgment

The Court:

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the French Republic has failed to fulfil its obligations under Article 63 of that directive;

2.	orders the French Republic to pay the costs.

(1) OJ C 6, 10.01.2009.

21.11.2009

Official Journal of the European Union

C 282/13

Judgment of the Court (Seventh Chamber) of 24 September 2009 — Commission of the European Communities v Republic of Austria

(Case C-477/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/36/EC - Recognition of professional qualifications - Failure to transpose within the period prescribed)

2009/C 282/23

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and M. Adam, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with 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)

Operative part of the judgment

The Court:

declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the Republic of Austria has failed to fulfil its obligations under Article 63 of that directive;

2.	orders the Republic of Austria to pay the costs.

(1) OJ C 69, 21.3.2009.

21.11.2009

Official Journal of the European Union

C 282/13

Judgment of the Court (Seventh Chamber) of 1 October 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-502/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/60/EC - Prevention of the use of the financial system for the purpose of money laundering and terrorist financing - Failure to transpose completely - Failure to communicate the measures to transpose the directive)

2009/C 282/24

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain (represented by:J. López-Medel Bascones, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15)

Operative part of the judgment

The Court:

declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, and by failing to communicate to the Commission of the European Communities, the provisions of national law intended to contribute to ensuring such compliance, the Kingdom of Spain has failed to fulfil its obligations under Article 45 of that directive;

2.	orders the Kingdom of Spain to pay the costs.

(1) OJ C 6, 10.01.2009.

21.11.2009

Official Journal of the European Union

C 282/14

Judgment of the Court (Fifth Chamber) of 24 September 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-504/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/70/EC - Civil servants and politicians - Money laundering - Incomplete transposition)

2009/C 282/25

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain (represented by: J. López-Medel Bascones, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (OJ 2006 L 214, p. 29)

Operative part of the judgment

The Court:

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis, the Kingdom of Spain has failed to fulfil its obligations under Article 5 of that directive;

2.	orders the Kingdom of Spain to pay the costs.

(1) OJ C 6, 10.1.2009.

21.11.2009

Official Journal of the European Union

C 282/14

Judgment of the Court (Sixth Chamber) of 1 October 2009 — Commission of the European Communities v Ireland

(Case C-549/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/70/EC - Money laundering and terrorist financing - Failure to transpose within the period prescribed)

2009/C 282/26

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and A.-A. Gilly, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to have adopted, within the prescribed period, the measures necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (OJ 2008 L 214, p. 29)

Operative part of the judgment

The Court:

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis, Ireland has failed to fulfil its obligations under that directive;

2.	Orders Ireland to pay the costs.

(1) OJ C 55, 07.03.2009.

21.11.2009

Official Journal of the European Union

C 282/15

Judgment of the Court (Sixth Chamber) of 1 October 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-575/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/56/EC - Cross-border mergers of limited liability companies - Failure to transpose within the prescribed period)

2009/C 282/27

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: V. Peere and P. Dejmek, acting as Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take or communicate, within the prescribed period, the measures necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (OJ 2005 L 310, p. 1)

Operative part of the judgment

The Court:

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

(1) OJ C 44, 21.02.2009.

21.11.2009

Official Journal of the European Union

C 282/15

Judgment of the Court (Fifth Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-6/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/60/EC - Money laundering and terrorist financing - Failure to transpose within the prescribed period)

2009/C 282/28

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: V. Peere and P. Dejmek, acting as Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to have adopted or communicated, within the prescribed time-limit, all the measures necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15)

Operative part of the judgment

The Court:

declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

(1) OJ C 69, 21.03.2009.

21.11.2009

Official Journal of the European Union

C 282/15

Judgment of the Court (Seventh Chamber) of 24 September 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-8/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/17/EC - Technical requirements for the donation, procurement and testing of human tissues and cells - Failure to transpose within the prescribed period)

2009/C 282/29

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Cattabriga and J. Sénéchal, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or notify, within the prescribed period, the measures necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells (OJ 2006 L 38, p. 40)

Operative part of the judgment

The Court:

Declares that, by not adopting, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

(1) OJ C 69, 21.3.2009.

21.11.2009

Official Journal of the European Union

C 282/16

Judgment of the Court (Seventh Chamber) of 22 September 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-9/09) (1)

(Failure of a Member State to fulfil obligations - Public Health - Directive 2004/23/EC - Setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells - Failure to transpose within the prescribed period)

2009/C 282/30

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Cattabriga and J. Sénéchal, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or to communicate, within the prescribed period, the measures necessary to comply with Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells (OJ 2004 L 102, p. 48)

Operative part of the judgment

The Court:

Declares that, by not adopting, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

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

(1) OJ C 69, 21.3.2009.

21.11.2009

Official Journal of the European Union

C 282/16

Judgment of the Court (Seventh Chamber) of 1 October 2009 — Commission of the European Communities v Czech Republic

(Case C-100/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/14/EC - Detailed rules for the implementation of certain provisions of Directive 2004/109/EC - Failure to transpose within the prescribed period)

2009/C 282/31

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: L Jelínek and P. Dejmek, acting as Agents)

Defendant: Czech Republic (represented by: M. Smolek, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (OJ 2007 L 69, p. 27)

Operative part of the judgment

The Court:

declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive;

2.	orders the Czech Republic to pay the costs.

(1) OJ C 113, 16.05.2009.

21.11.2009

Official Journal of the European Union

C 282/17

Order of the Court (Sixth Chamber) of 10 July 2009 — Apple Computer Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), TKS-Teknosoft SA

(Case C-416/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word mark QUARTZ - Opposition by the proprietor of the Community figurative mark QUARTZ - Refusal to register - Similarity between goods - Likelihood of confusion - Appeal clearly inadmissible)

2009/C 282/32

Language of the case: English

Parties

Appellant: Apple Computer Inc. (represented by: M. Hart and N. Kearley, Solicitors)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent), TKS-Teknosoft SA

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 1 July 2008 in Case T-328/05 Apple Computer v OHIM, by which the Court dismissed the action brought by the applicant for the figurative mark ‘QUARTZ’ in respect of goods in classe 9 against decision R 416/2004-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 27 April 2005 dismissing the appeal brought against the decision of the Opposition Division partially refusing registration of that mark in opposition proceedings brought by the proprietor of the Community figurative mark ‘QUARTZ’ in respect of services in classes 9 and 42.

Operative part of the order

1.	The appeal is dismissed.

2.	Apple Computer Inc. shall pay the costs.

(1) OJ C 301, 22.11.2008.

21.11.2009

Official Journal of the European Union

C 282/17

Order of the Court (Third Chamber) of 9 July 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Kurt Wierer v Land Baden-Württemberg

(Case C-445/08) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Driving licence - Directive 91/439/EEC - Withdrawal of national licence for drunk driving - Failure to produce a medical-psychological certificate which is required in order to obtain a new licence in the host Member State - Licence issued in another Member State - Verification by the host Member of State of the residence condition - Possibility of relying on the information provided by the holder of the licence by virtue of his obligation to cooperate under the national law of the host Member State - Possibility of carrying out investigations in the issuing Member State)

2009/C 282/33

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Kurt Wierer

Defendant: Land Baden-Württemberg

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation of Article 9 of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) — Refusal to recognise a driving licence issued in another Member in disregard of the residence condition — Possibility for the host Member State, for the purposes of examining compliance with the residence condition at the time of issuing the driving licence, to rely on information which was provided by the driving licence holder in the course of administrative procedures or court proceedings by virtue of his obligation to cooperate, or, where appropriate, to conduct investigations in the issuing Member State — Holder who has had his national licence withdrawn for drunk driving, and who has been unable to produce the medical-psychological report which is required in order to obtain a new licence in his State of residence

Operative part

Articles 1(2), 7(1) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as meaning that a Member State is precluded from refusing, within its territory, to recognise a right to drive under a driving licence subsequently issued by another Member State to a person who has earlier, in the host Member State, had his previous driving licence withdrawn for drunk driving, and when that second licence has been obtained after any period in which he is forbidden to apply for a new licence, if it transpires:

—

that, on the basis of the explanations and information provided by the holder of that licence in the course of administrative procedures or court proceedings pursuant to an obligation to cooperate imposed on him under the national law of the host Member State, the condition of residence was not observed by the Member State which issued that licence,

—

that information obtained during investigations conducted by the national authorities and courts of the host Member State in the issuing Member State is not incontestable information from the issuing Member State attesting that the holder was not normally resident in the territory of that State when it issued a driving licence.

(1) OJ C 32, 7.02.2009.

21.11.2009

Official Journal of the European Union

C 282/18

Order of the Court (Seventh Chamber) of 9 July 2009 (reference for a preliminary ruling from the Tribunal de première instance de Mons — Belgium) — Régie communale autonome du stade Luc Varenne v Belgian State — SPF Finances

(Affaire C-483/08) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Sixth VAT Directive - Article 10(1) and (2) - Recovery of tax improperly deducted - Starting point of the limitation period)

2009/C 282/34

Language of the case: French

Referring court

Tribunal de première instance de Mons

Parties to the main proceedings

Applicant: Régie communale autonome du stade Luc Varenne

Defendant: Belgian State — SPF Finances

Reference for a preliminary ruling — Tribunal de première instance de Mons — Interpretation of Article 10 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OL 1977 L 145, p. 1) — Concepts of ‘chargeable event’ and ‘chargeability of tax’ — Starting point of the limitation period for an action for recovery of VAT — The date on which the invoice is tendered or the date on which the VAT return is lodged in which the taxable person claims a right to deduct?

Operative part

Article 10 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2002/38/EC of 7 May 2002, must be interpreted as meaning that it does not preclude national legislation and administrative practice which fixes the starting point of the limitation period for an action for recovery of improperly deducted value added tax as the day on which the taxable person lodged the VAT return in which he claimed for the first time a right to deduct.

(1) OJ C 19, 24.1.2009

21.11.2009

Official Journal of the European Union

C 282/19

Reference for a preliminary ruling from High Court of Justice (England and Wales), Chancery Division, made on 12 August 2009 — Interflora Inc, Interflora British Unit v Marks & Spencer plc, Flowers Direct Online Limited

(Case C-323/09)

2009/C 282/37

Language of the case: English

Referring court

High Court of Justice (England and Wales), Chancery Division

Parties to the main proceedings

Applicants: Interflora Inc, Interflora British Unit

Defendants: Marks & Spencer plc, Flowers Direct Online Limited

Questions referred

Where a trader which is a competitor of the proprietor of a registered trade mark and which sells goods and provides services identical to those covered by the trade mark via its website (i) selects a sign which is identical (in accordance with the Court's ruling in Case C-291/00) with the trade mark as a keyword for a search engine operator's sponsored link service, (ii) nominates the sign as a keyword, (iii) associates the sign with the URL of its website, (iv) sets the cost per click that it will pay in relation to that keyword, (v) schedules the timing of the display of the sponsored link and (vi) uses the sign in business correspondence relating to the invoicing and payment of fees or the management of its account with the search engine operator, but the sponsored link does not itself include the sign or any similar sign, do any or all of these acts constitute ‘use’ of the sign by the competitor within the meaning of Article 5(l)(a) of First Council Directive 89/104/EEC (1) of 21 December 1988 (‘the Trade Marks Directive’) and Article 9(l)(a) of Council Regulation 40/94 (2) of 20 December 1993 on the Community trade mark (‘the CTM Regulation’)?

2.	Is any such use ‘in relation to’ goods and services identical to those for which the trade mark is registered within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

Does any such use fall within the scope of either or both of:

(a)	Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation; and

(b)	(assuming that such use is detrimental to the distinctive character of the trade mark or takes unfair advantage of the repute of the trade mark) Article 5(2) of the Trade Marks Directive and Article 9(l)(c) of the CTM Regulation?

Does it make any difference to the answer to question 3 above if:

(a)	the presentation of the competitor's sponsored link in response to a search by a user by means of the sign in question is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor's commercial network contrary to the fact; or

(b)	the search engine operator does not permit trade mark proprietors in the relevant Member State of the Community to block the selection of signs identical to their trade marks as keywords by other parties?

Where the search engine operator (i) presents a sign which is identical (in accordance with the Court's ruling in Case C-291/00) with a registered trade mark to a user within search bars located at the top and bottom of search pages that contain a sponsored link to the website of the competitor referred to in question 1 above, (ii) presents the sign to the user within the summary of the search results, (iii) presents the sign to the user by way of an alternative suggestion when the user has entered a similar sign in the search engine, (iv) presents a search results page to the user containing the competitor's sponsored link in response to the entering by the user of the sign and (v) adopts the user's use of the sign by presenting the user with search results pages containing the competitor's sponsored link, but the sponsored link does not itself include the sign or any similar sign, do any or all of these acts constitute ‘use’ of the sign by the search engine operator within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

6.	Is any such use ‘in relation to’ goods and services identical to those for which the trade mark is registered within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

Does any such use fall within the scope of either or both of:

(a)	Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation; and

(b)	(assuming that such use is detrimental to the distinctive character of the trade mark or takes unfair advantage of the repute of the trade mark) Article 5(2) of the Trade Marks Directive and Article 9(l)(c) of the CTM Regulation?

Does it make any difference to the answer to question 7 above if:

(a)	the presentation of the competitor's sponsored link in response to a search by a user by means of the sign in question is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor's commercial network contrary to the fact; or

(b)	the search engine operator does not permit trade mark proprietors in the relevant Member State to block the selection of signs identical to their trade marks as keywords by other parties?

If any such use does fall within the scope of either or both of Article 5(l)(a) of the Trade Marks Directive/Article 9(l)(a) of the CTM Regulation and Article 5(2) of the Trade Marks Directive/Article 9(l)(c) of the CTM Regulation:

(a)

does such use consist of or include ‘the transmission in a communication network of information provided by a receipt of the service’, and if so does the search engine operator ‘select or modify the information’, within the meaning of Article 12(1) of European Parliament and Council Directive 2000/31/EC (3) of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘the E-commerce Directive’)?

(b)

does such use consist of or include ‘the automatic, intermediate and temporary storage of information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request’ within the meaning of Article 13(1) of the E-commerce Directive?

(c)	does such use consist of or include ‘the storage of information provided by a recipient of the service’ within the meaning of Article 14(1) of the E-commerce Directive?

(d)

if the use does not consist exclusively of activities falling within the scope of one or more of Article 12(1), 13(1) and 14(1) of the E-Commerce Directive, but includes such activities, is the search engine operator exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability?

10.

If the answer to question 9 above is that the use does not consist exclusively of activities falling within the scope of one or more of Articles 12-14 of the Ecommerce Directive, may the competitor be held jointly liable for the acts of infringement of the search engine operator by virtue of national law on accessory liability?

(1) First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks

OJ L 40, p. 1

(2) OJ L 11, p. 1

(3) OJ L 178, p. 1

21.11.2009

Official Journal of the European Union

C 282/21

Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 August 2009 — Mensch und Natur AG v Freistaat Bayern

(Case C-327/09)

2009/C 282/38

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Mensch und Natur AG

Defendant: Freistaat Bayern

Questions referred

Does the fourth paragraph of Article 249 EC preclude a Commission decision which, according to its wording, is addressed to a particular person from being interpreted as being also binding on other undertakings which, according to the spirit and purpose of the decision, are to be treated in the same way?

Is the Commission Decision of 22 February 2000 refusing the placing on the market of “Stevia rebaudiana Bertoni: plants and dried leaves” as a novel food or novel food ingredient (2000/196/EC), (1) under Article 1 of which Stevia rebaudiana Bertoni: plants and dried leaves may not be placed on the Community market as a food or food ingredient, also binding on the claimant which at present places “Stevia rebaudiana Bertoni: plants and dried leaves” on the Community market?

(1) Commission Decision of 22 February 2000 refusing the placing on the market of ‘Stevia rebaudiana Bertoni: plants and dried leaves’ as a novel food or novel food ingredient under Regulation (EC) No 258/97 of the European Parliament and of the Council (notified under document number C(2000) 77); OJ 2000 L 61, p. 14.

21.11.2009

Official Journal of the European Union

C 282/21

Appeal brought on 24 August 2009 by the Republic of Poland against the judgment delivered on 10 June 2009 by the Court of First Instance (First Chamber, Extended Composition) in Case T-257/04 Poland v Commission

(Case C-335/09 P)

2009/C 282/39

Language of the case: Polish

Parties

Appellant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	set aside in its entirety the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Case T-257/04 Republic of Poland v Commission of the European Communities;

—

declare invalid Article 3, Article 4(3) and the eighth indent of Article 4(5) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, (1) as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (2) and by Commission Regulation (EC) No 735/2004 of 20 April 2004; (3)

—	order the Commission of the European Communities to pay the costs of the proceedings before the Court of First Instance and the Court of Justice;

—	have the appeal heard by the Grand Chamber of the Court.

Pleas in law and main arguments

First, in so far the judgment under appeal states that, in relation to Regulation No 1972/2003, the action was brought after the period for doing so had expired and therefore had to be dismissed as inadmissible (paragraphs 32 to 63 of the judgment under appeal):

—

it is contended that the Court of First Instance misconstrued Regulation No 1 of the Council determining the languages to be used by the European Economic Community (4) and the Treaty of Accession in finding that the period for bringing an action for a declaration that Regulation No 1972/2003 was invalid began to run from the date of publication of that regulation in the official languages of the Community of Fifteen, and thus before publication in the official languages of the enlarged Community had been completed;

—

it is contended that the Court of First Instance misconstrued the fourth paragraph of Article 230 EC in finding that the Republic of Poland could effectively have brought an action seeking a declaration that Regulation No 1972/2003 was invalid before it acceded to the European Union by acting pursuant to that provision as a legal person;

—

infringement of the principles of a community based on the rule of law and of effective judicial protection by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of Regulation No 1972/2003, even though that regulation was addressed to the Republic of Poland as a Member State;

—

infringement of the principles of solidarity and of good faith by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of a measure which unlawfully altered the conditions governing the accession of the Republic of Poland to the European Union and interfered with the balance of rights and obligations resulting from membership of the Community;

—

infringement of procedure in the proceedings before the Court of First Instance by reason of the failure to examine the arguments put forward by the Republic of Poland concerning infringement of the principles of solidarity and good faith, and lack of sufficient reasoning for the judgment under appeal.

Second, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid to the extent to which that regulation made seven categories of goods from the Republic of Poland subject to the measure referred to in Article 4(3) of Regulation No 1972/2003 (paragraphs 80 to 136 of the judgment under appeal):

—

breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that the level of payments provided for in Article 4(3) of Regulation No 1972/2003 was appropriate and necessary in order to achieve the objectives of the transitional measure in issue, even though payment in the amount of the difference in customs rates would have been sufficient to prevent speculation and to neutralise speculative profits, that payment in the aforementioned amount could not have brought about realisation of the protective objectives in view of the date on which it entered into force (11 days prior to the date of accession), and despite the lack of any connection between the level of the payment determined and its ostensible purpose;

—	infringement of the principle of non-discrimination by reason of the finding that the level of the payment provided for in Article 4(3) of Regulation No 1972/2003 was determined on the basis of objective criteria of differentiation.

Third, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the list of products in the eighth indent of Article 4(5) of Regulation No 1972/2003 (paragraphs 137 to 160 of the judgment under appeal):

—

breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that payment of the charges provided for in Article 4(3) of Regulation No 1972/2003 in respect of products for which, prior to accession, the import rates in force in the Republic of Poland were higher than, or equal to, the import rates in force within the Community, was indispensable for the purpose of attaining the objectives of the measures provided for in that regulation.

Fourth, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the measure provided for in Article 3 of Regulation No 1972/2003 (paragraphs 161 to 249 of the judgment under appeal):

—

breach of Community law, that is to say, misinterpretation of Article 3 of Regulation No 1972/2003, misinterpretation of Article 41 of the Act of Accession, and infringement of the principle of the hierarchy of legal norms by reason of the finding that Article 3 of Regulation No 1972/2003 was necessary in order to safeguard the effectiveness of Article 4 of that regulation and could have been adopted pursuant to Article 41 of the Act of Accession as a derogation from the provisions of that Act;

—	breach of Article 253 EC by reason of the finding that the reasons given for the disputed transitional measure were adequate;

—	infringement of the principle of the free movement of goods by reason of the finding that the transitional measures adopted pursuant to Article 41 of the Act of Accession are not subject to appraisal in regard to their compliance with Article 25 EC;

—

infringement of the principle of non-discrimination by reason of the recognition, as being objectively justified, of the difference in treatment between traders from the Republic of Poland and traders from the States of the Community of Fifteen through the application of a suspensive regime to products taken over on the date of accession, while were, prior to accession, in free circulation within the Republic of Poland, an import duty imposed erga omnes, and the release from that duty of those products which, prior to accession, were in free circulation within the Community of Fifteen and in respect of which no export refunds had been applied for;

—	infringement of the principle of legitimate expectations by reason of the finding that the Community did not create a situation which could have given rise to legitimate expectations on the part of Polish traders.

(1) OJ L 293 of 11.11.2003, p. 3.

(2) OJ L 39 of 11.02.2004, p. 13.

(3) OJ L 114 of 21.04.2004, p. 13.

(4) OJ English Special Edition 1952-1958, p. 59.

21.11.2009

Official Journal of the European Union

C 282/23

Appeal brought on 24 August 2009 by the Republic of Poland against the order made by the Court of First Instance (First Chamber, Extended Composition) on 10 June 2009 in Case T-258/04 Poland v Commission

(Case C-336/09 P)

2009/C 282/40

Language of the case: Polish

Parties

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

Other parties to the proceedings: Commission of the European Communities, Republic of Cyprus

Form of order sought

—	set aside in its entirety the order of the Court of First Instance of the European Communities of 10 June 2009 in Case T-258/04 Poland v Commission;

—

annul Article 5, Article 6(1), (2) and (3), Article 7(1) and Article 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia; (1)

—	order the Commission of the European Communities to pay the costs of the proceedings before the Court of First Instance and the Court of Justice;

—	hear the appeal sitting as the Grand Chamber.

Pleas in law and main arguments

—

erroneous interpretation of Regulation No 1 of the Council determining the languages to be used by the European Economic Community (2) and of the Treaty of Accession, by finding that the period for bringing an action for annulment of Regulation No 60/2004 began to run on the day upon which the regulation was published in the official languages of the Community of 15, and therefore before publication was completed in the official languages of the enlarged Community,

—	erroneous interpretation of the fourth paragraph of Article 230 EC, by finding that the Republic of Poland could effectively bring an action for annulment of Regulation No 60/2004 before it acceded to the European Union, acting under that provision as a legal person,

—

breach of the principle of a Community governed by the rule of law and of the principle of effective judicial protection, by denying the Republic of Poland the right to submit the legality of Regulation No 60/2004 for judicial review, despite the fact that that regulation was addressed to the Republic of Poland as a Member State,

—

breaches of the principle of solidarity and the principle of good faith, by denying the Republic of Poland the right to submit for judicial review the legality of a measure which altered the conditions of its accession to the European Union and infringed the balance of rights and obligations that result from membership of the Community,

—	procedural breaches in the proceedings before the Court of First Instance, through the failure to hear arguments of the Republic of Poland relating to breach of the principle of solidarity and the principle of good faith, and a lack of sufficient reasoning in the contested order.

(1) OJ 2004 L 9, p. 8.

(2) OJ, English Special Edition 1952-1958, p. 59.

21.11.2009

Official Journal of the European Union

C 282/23

Appeal brought on 20 August 2009 by Council of the European Union against the judgment of the Court of First Instance (Fourth Chamber) delivered on 17 June 2009 in Case T-498/04: Zhejiang Xinan Chemical Industrial Group Co. Ltd v Council of the European Union

(Case C-337/09 P)

2009/C 282/41

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: J.-P. Hix, Agent, G. Berrisch, Rechtsanwalt and G. Wolf, Rechtsanwalt)

Other parties to the proceedings: Zhejiang Xinan Chemical Industrial Group Co. Ltd, Commission of the European Communities, Association des Utilisateurs et Distributeurs de l'AgroChimie Européenne (Audace)

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the Court of First Instance of the European Communities of 17 June 2009;

—	give final judgment on the dispute by dismissing the Application in its entirety;

—	in the alternative, refer the case back to the CFI; and

—	in any event, order that the costs of the appeal proceedings and of the proceedings before the Court of first Instance be borne by the Applicant at first instance.

Pleas in law and main arguments

The appellant submits that the Court of first Instance:

erred in law by treating the two conditions under Article 2(7)(c) of Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Communities (1) (‘Basic Regulation’), namely the requirements that a claim for market economy status (‘MES’) contain sufficient evidence that decisions listed in that provision were ‘made in response to market signals reflecting supply and demand’ and that they were made ‘without significant State interference’, as s single condition, thereby rendering the second condition redundant;

erred in law when interpreting the word ‘significant’ in ‘significant State interference’ under Article 2(7)(c) of the Basic Regulation as referring to the considerations or motives underlying the State's interference, i.e. whether it was based on purely commercial considerations or considerations peculiar to the State, whereas such an interpretation finds no support in the wording of that provision;

3.	erred in law by effectively reversing the burden of proof in requiring the Council to establish, when refusing MES to a State-controlled company, that the company's decisions under Article 2(7)(c) were influenced by considerations peculiar to the State as opposed to commercial considerations;

erred in law by finding that the Council had committed a manifest error in concluding that the State exercised significant control over the Applicant as regards the setting of export prices for the product concerned by (i) entrusting the China Chamber of Commerce Metals, Minerals & Chemicals Importers and Exporters (‘CCCMC’) to set a minimum floor price, verify, and veto exports that did not respect these prices; and (ii) enforcing the minimum floor price by preventing export transactions which had not been stamped by the CCCMC. In particular, the Court of First Instance erred in law by finding that the Council was required to put in issue the probative value or sufficiency of evidence advanced by the Applicant that the system put in place by the CCMC and supported by Chinese exports authorities did not actually restrict exporters’ ability to set export prices independently;

5.	erred in law by finding that, on the basis of all other findings, the Council committed a manifest error in refusing the Applicant MES.

(1) OJ L 56, p 1.

21.11.2009

Official Journal of the European Union

C 282/24

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria) lodged on 24 August 2009 — Yellow Cab Verkehrsbetriebs GmbH

(Case C-338/09)

2009/C 282/42

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat Wien

Parties to the main proceedings

Applicant: Yellow Cab Verkehrsbetriebs GmbH

Defendant: Magistrat der Stadt Wien

Questions referred

(a)	that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority before commencing operation of the service and in particular at the time the licence is granted;

(b)	that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority at the latest from the time operation of the service commences?

Is it compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport where fixed stops are called at regularly in accordance with a timetable, to provide that authorisation is to be refused where, if the motor vehicle service applied for commences, the revenues of a competing undertaking running on a partially or entirely identical short route will be so substantially reduced by this service that the continued running of the service operated by the competing undertaking will no longer be economically viable?

21.11.2009

Official Journal of the European Union

C 282/25

Reference for a preliminary ruling from the Gerechtshof’s-Gravenhage (Netherlands) lodged on 28 August 2009 — State of the Netherlands v Denkavit Nederland b.v. and Others

(Case C-346/09)

2009/C 282/44

Language of the case: Dutch

Referring court

Gerechtshof’s-Gravenhage

Parties to the main proceedings

Applicant

State of the Netherlands

Defendants

Denkavit Nederland b.v.,

Arie Blok b.v.,

Cehave b.v.,

Demeter b.v.

Question referred

Must Community law, and specifically Directive 90/425/EEC, (1) Decision 94/381/EC (2) and Decision 2000/766/EC, (3) be interpreted as meaning that any national prohibition, such as that laid down in Article 2 of the Tijdelijke regeling, which, with a view to affording protection against BSE, prohibits the production of and trading in processed animal proteins intended for feeding to farmed animals, is incompatible with those provisions if such a national prohibition

—	entered into force on 15 December 2000 (and so before Decision 2000/766/EC) and

—	also applied temporarily (until Decision 2001/9/EC (4) of 29 December 2000 entered into force) to fishmeal and dicalcium phosphate?

(1) Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra- Community trade in certain live animals and products with a view to the completion of the internal market (OJ L 224, p. 29).

(2) Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein (OJ L 172, p. 23).

(3) Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ L 306, p. 32).

(4) Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Council Decision 2000/766/EC concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2001 L 2, p. 32).

21.11.2009

Official Journal of the European Union

C 282/26

Reference for a preliminary ruling from the Bezirksgericht Linz (Austria) lodged on 31 August 2009 — Criminal proceedings against Jochen Dickinger, Franz Ömer

(Case C-347/09)

2009/C 282/45

Language of the case: German

Referring court

Bezirksgericht Linz

Parties to the main proceedings

Jochen Dickinger, Franz Ömer

Questions referred

(a)

Are Articles 43 EC and 49 EC to be interpreted as, in principle, precluding legislation of a Member State, such as Paragraph 3 in conjunction with Paragraph 14 et seq. and Paragraph 21 of the Austrian Law on Gaming (Glücksspielgesetz), under which

—

a licence for lotteries (e.g. lotteries, electronic lotteries, etc.) may be granted to no more than one applicant for a period of up to 15 years, such applicant being required, inter alia, to be a capital company established in Austria, prohibited from establishing branches outside Austria, having a paid-up nominal or share capital of at least EUR 109 000 000 and which may, in the circumstances, be expected to achieve the best yield in terms of federal taxation;

—

a licence for casinos may be granted to no more than 12 applicants for a period of up to 15 years, such applicants being required, inter alia, to be public limited companies established in Austria, prohibited from establishing branches outside Austria, having a paid-up share capital of EUR 22 000 000 and which may, in the circumstances, be expected to achieve the best yield in terms of taxation for the regional authorities?

These questions arise specifically against the following background: Casinos Austria AG holds all 12 casino licences, which were granted on 18 December 1991 for the maximum period of 15 years and which have since been extended without a public tendering procedure or notice.

(b)	If so, can such legislation also be justified for reasons relating to the public interest in a restriction of betting activities if the licensees in a quasi-monopoly are themselves pursuing a policy of expansion of games of chance, and employing intensive advertising in order to do so?

(c)

If so, must the referring court — in its examination of the proportionality of such legislation, which aims to prevent criminal offences by monitoring operators active in this sector and thereby steering gaming activities towards a regime in which they will be subject to checks — take account of the fact that the legislation also covers cross-border service providers who, in any event, are subject in the Member State of establishment to the strict conditions and checks associated with their licence?

Are the fundamental freedoms of the EC Treaty, in particular the freedom to provide services under Article 49 EC, to be interpreted as meaning that, irrespective of the continuing responsibility, in principle, of the Member States for the regulation of criminal law, rules of a Member State’s criminal law are nevertheless to be assessed by reference to Community law if they are liable to prohibit or impede the exercise of one of the fundamental freedoms?

(a)

Is Article 49 EC, in conjunction with Article 10 EC, to be interpreted as meaning that the checks carried out in a service provider’s State of establishment, and the safeguards provided there, must be taken into account in the State in which those services are provided, on the basis of the principle of mutual trust?

(b)

If so, is Article 49 EC to be interpreted further as meaning that, where the freedom to provide services is restricted for reasons in the public interest, consideration must be given to whether sufficient account is not already taken of this public interest in the legal provisions, checks and investigations to which a service provider is subject in the State in which he resides?

(c)

If so, must consideration be given — when examining the proportionality of a Member State’s rules imposing penalties for the cross-border provision of gaming services without a licence granted in that Member State — to the fact that the regulatory interests upon which the State in which the services are provided relies in order to justify the restriction of the fundamental freedom are already sufficiently taken into account in the State of establishment in strict authorisation and supervision procedures?

(d)

If so, must the referring court take account — in the context of its examination of the proportionality of such a restriction — of the fact that, in the State in which the service provider resides, the degree of control exercised by virtue of the provisions in question actually exceeds that of the State in which the services are provided?

(e)

Moreover, does the principle of proportionality in the case of a prohibition — on pain of criminal penalties — of games of chance that is imposed for regulatory reasons, such as the protection of players and the fight against crime, require the referring court to make a distinction between providers who offer games of chance without any authorisation whatsoever, and those who are established and licensed in other Member States of the European Union and who conduct their activities in the exercise of their freedom to provide services?

(f)

In the examination of the proportionality of a Member State’s rules prohibiting the cross-border provision of gaming services without a licence granted or authorisation given in that Member State, on pain of criminal penalties, must account be taken, lastly, of the fact that, as a result of objective, indirectly discriminatory barriers to entry, it has not been possible for a provider of games of chance who is duly licensed in another Member State to obtain a licence in the first Member State, and the licensing and supervisory procedure in the State of establishment offers a level of protection that is at least comparable to that of the first Member State?

(a)	Is Article 49 EC to be interpreted in such a way that the temporary nature of the service provision precludes the service provider from equipping himself with a certain infrastructure (such as a server) in the host Member State without being deemed to be established in that Member State?

(b)

Is Article 49 EC to be interpreted further as meaning that a provision directed at support services within a Member State which prohibits them from facilitating the provision of services by a provider established in another Member State also amounts to a restriction of that service provider’s freedom to provide services if the support services are established in the same Member State as some of the recipients of the service?

21.11.2009

Official Journal of the European Union

C 282/27

Appeal brought on 2 September 2009 by ThyssenKrupp Nirosta AG, formerly ThyssenKrupp Stainless AG against the judgment of the Court of First Instance (Fifth Chamber) delivered on 1 July 2009 in Case T-24/07 ThyssenKrupp Stainless AG v Commission of the European Communities

(Case C-352/09 P)

2009/C 282/47

Language of the case: German

Parties

Appellant: ThyssenKrupp Nirosta AG, formerly ThyssenKrupp Stainless AG (represented by: M. Klusmann and S. Thomas, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

1.	Set aside the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 1 July 2009 in Case T-24/07 ThyssenKrupp Stainless AG v Commission in its entirety;

2.	In the alternative, refer the case back to the Court of First Instance for fresh judgment;

3.	In the further alternative, reduce by an appropriate amount the fine imposed on the appellant in Article 2 of the contested decision of the Commission of 20 December 2006;

4.	Order the Commission to pay the costs.

Pleas in law and main arguments

The subject of the appeal is the judgment of the Court of First Instance, by which the appellant’s action seeking annulment of the Commission’s decision of 20 December 2006 relating to a proceeding under Article 65 CS was dismissed. The present proceedings concern a cartel infringement in the market for special steel products which according to the Commission’s findings ended in January 1998. The infringement fell within the scope of Article 65 CS.

The appellant bases its appeal on five pleas in law.

By its first plea in law, the appellant alleges an infringement of the nulla poena sine lege principle, of Article 23 of Regulation (EC) No 1/2003 and of Articles 5 EC, 7(1) EC and 83 EC, and also claims that the sovereignty of the ECSC signatory States has been undermined, to the extent that the Court confirmed the legal basis relied upon by the Commission — consisting of Article 65(1) CS in conjunction with Article 23 of Regulation No 1/2003. Since the expiry of the ECSC Treaty, Article 65(1) CS has not been a valid basis for the imposition of penalties. Therefore the Commission acted upon the wrong legal basis. Nor can the imposition of a fine be based by extension on Article 23 of Regulation No 1/2003. According to the system of competences under the Treaty, that provision authorises the imposition of penalties only in respect of infringements of EC law, not of ECSC law.

By its second plea in law, the appellant claims that the principles of res judicata and nulla poene sine lege have been infringed, and that Article 23 of Regulation No 1/2003 has been misapplied, in so far as the Court confirmed the Commission’s standpoint that the infringement by Thyssen Stahl AG can be imputed to the appellant in its place. Thyssen Stahl AG continues to exist as a solvent undertaking and could therefore have been called to account by the Commission. That was also the decision of the Court of Justice in 2005 in its judgment in Joined Cases C-65/02 P and C-73/02 P concerning the Commission’s original decision of 1998. Even if the Court proceeded in its judgment on the basis of a substantive imputation of liability to the appellant, that cannot be regarded as having finally decided the issue for the purposes of the present proceedings, since they are based on a new Commission decision. The appellant can moreover in no circumstances be held liable for the actions of Thyssen Stahl AG on the basis of its declaration, which is merely a declaration of the imputation of liability under private law, since a declaration by an undertaking can never lead to the imputation of an obligation to pay a fine.

By its third plea in law, the appellant alleges an infringement of the principle of legal certainty. The legal basis on which the sanction was imposed, as confirmed by the Court, that is Article 23 of Regulation No 1/2003, does not indicate in a sufficiently clear or unambiguous way that it refers to infringements of Article 65(1) CS. Furthermore, the concept of ‘imputation of liability by declaration’ accepted by the Commission and the Court has not been clearly or unambiguously established by law, either with regard to the conditions for its application or its legal consequences.

By its fourth plea in law, the appellant complains that there has been an infringement of the rules concerning time-bar. Since the appellant is merely to be fined for an infringement committed originally by Thyssen Stahl AG, the time-bar issue must also be considered in relation to the position of Thyssen Stahl AG. Since Thyssen Stahl AG did not bring any legal proceedings against the Commission’s original decision, the limitation period in respect of it was not suspended. In the meantime, legal proceedings have therefore become time-barred, meaning that any derived responsibility of the appellant for the actions of Thyssen Stahl AG is also ruled out.

The fifth plea in law concerns an infringement of the principles governing the calculation of fines. The Court wrongly ruled out a reduction in the fine, even though the appellant in the present proceedings accepted all the facts on the basis of which the Commission found there to be an infringement of Article 65(1) CS. The rewarding of that cooperation should not have been denied on the basis that the appellant contested the application of Article 65(1) CS on legal grounds and also on legal grounds rejects the imputation of liability from Thyssen Stahl AG to itself. The reference to impermissible legal assessments does not devalue the cooperation, since legal questions must always be examined ex officio and — independently therefore of admissions by the parties — the authorities may never reach unlawful decisions.

21.11.2009

Official Journal of the European Union

C 282/29

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 September 2009 — Pensionsversicherungsanstalt v Dr Christine Kleist

(Case C-356/09)

2009/C 282/49

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Pensionsversicherungsanstalt

Respondent: Dr Christine Kleist

Questions referred

Is Article 3(1)(c) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, (1) as amended by Directive 2002/73/EC, to be interpreted — in the context of a system of employment law in which the general protection of employees against dismissal is determined by their social (financial) dependence on the job — as precluding a provision of a collective agreement offering special protection against dismissal, over and above the statutory general protection against dismissal, only until that point in time at which, in a typical case, there is a social (financial) safety net in the form of an old-age pension if men and women become entitled to that old-age pension at different times?

In the context of such a system of employment law, does Article 3(1)(c) of Directive 76/207/EEC, as amended by Directive 2002/73/EC, preclude a decision by a public employer terminating the employment of a female employee just a few months after she acquires the financial safety net of an old-age pension, in order to employ new workers who are already pressing to join the job market?

(1) OJ 1976 L 39, p. 40

21.11.2009

Official Journal of the European Union

C 282/29

Reference for a preliminary ruling from the Cour de cassation (France) lodged on 17 September 2009 — Josep Penarroja Fa v Procureur général près la Cour d’appel de Paris

(Case C-372/09)

2009/C 282/50

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Josep Penarroja Fa

Defendant: Procureur général près la Cour d’appel de Paris

Questions referred

1.	Must Article 50 EC be interpreted as applying to the duties entrusted to a professional, acting as an expert, in a dispute brought before the national courts, and appointed by the court seised of the dispute, under the conditions described [in the order for reference]?

Must the connection with the exercise of official authority, referred to in the first paragraph of Article 45 EC, be interpreted as applying to the duties of an expert appointed by a French court, as governed by the French Codes of Civil and Criminal Procedure, and by Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004?

Must Articles 43 EC and 49 EC be interpreted as precluding legislation, such as that resulting from Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004, as amended, which makes enrolment on a register maintained by a cour d’appel subject to conditions relating to age, competence, character and independence, and which does not take into account the fact that the applicant has already been recognised as an expert by the courts of his State of origin or introduce other arrangements for assessing his competence?

21.11.2009

Official Journal of the European Union

C 282/30

Reference for a preliminary ruling from the Cour de cassation (France) lodged on 17 September 2009 — Josep Penarroja Fa v Procureur général près la Cour de cassation

(Case C-373/09)

2009/C 282/51

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Josep Penarroja Fa

Defendant: Procureur général près la Cour de cassation

Questions referred

1.	Must Article 50 EC be interpreted as applying to the duties entrusted to a professional, acting as an expert, in a dispute brought before the national courts, and appointed by the court seised of the dispute, under the conditions described [in the order for reference]?

Must Articles 43 EC and 49 EC be interpreted as precluding legislation, such as that resulting from Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004, as amended, which restricts enrolment on the national register and the title of expert approved by the Cour de cassation to professionals who have been enrolled for at least three years on a register maintained by a French cour d’appel?

Must Article 3(1)(a) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 (1) be interpreted as covering the performance of the duties of court expert under the title of court expert approved by the Cour de cassation in accordance with the detailed rules laid down by Law No 71-498 of 29 June 1971 and Decree No 2004-1463 of 23 December 2004, as amended?

(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).

21.11.2009

Official Journal of the European Union

C 282/30

Appeal brought on 25 September 2009 by Melli Bank plc against the judgment of the Court of First Instance (Second Chamber) delivered on 9 July 2009 in Joined Cases T-246/08 and T-332/08: Melli Bank plc v Council of the European Union, supported by French Republic, United Kingdom of Great Britain and Northern Ireland, Commission of the European Communities

(Case C-380/09 P)

2009/C 282/52

Language of the case: English

Parties

Appellant: Melli Bank plc (represented by: S. Gadhia, Solicitor, T. Din, Solicitor, D. Anderson QC, R. Blakeley, Barrister)

Other parties to the proceedings: Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

—	Set aside the contested judgment;

—	Allow the applications in Cases T-246/08 and T-332/08;

—	Annul paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC (1) concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc;

—	If the Court finds that Article 7(2)(d) of the Regulation is mandatory in effect, to declare Article 7(2)(d) of Council Regulation 423/2007/EC (2) inapplicable; and

—	Order the Council to pay the costs of the appeal and of the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Appellant submits that in the Contested Judgment the CFI erred in law in a number of respects and in so doing acted in breach of Community law in four principal respects:

1)	The CFI erred in law in incorrectly interpreting Article 7(2)(d) of the Regulation as being a mandatory provision;

2)	The CFI erred in law in holding that Article 7(2)(d) of the Regulation was consistent with the Community law principle of proportionality;

3)	The CFI erred in law in the formulation and application of the test for determining whether the Appellant was owned and controlled by the Parent; and

4)	The CFI erred in law in concluding that the Council had satisfied its obligation to give reasons for its decision to list the Appellant.

Consequently, the Appellant requests that the Court of Justice:

1)	Set aside the Contested Judgment;

2)	Allow the applications in Cases T-246/08 and T-332/08;

3)	Annul paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc;

4)	If the Court finds that Article 7(2)(d) of the Regulation purports to be mandatory in effect, declare Article 7(2)(d) of Council Regulation 423/2007/EC inapplicable; and

5)	Order the Council to pay the costs of the appeal and of the proceedings before the Court of First Instance.

(1) Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ L 163, p. 29

(2) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran,

OJ L 103, p. 1

OJ L 335M, p. 969 (MT)

21.11.2009

Official Journal of the European Union

C 282/31

Action brought on 6 October 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-394/09)

2009/C 282/54

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro, B. McArdle, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2005/33/EC (1) of the European Parliament and of the Council of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels for Gibraltar and, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose all the ‘marine based’ elements of the Directive for England, Wales, Northern Ireland and Scotland or, in any event, by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 2 of that Directive;

—	order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The period within which the Directive had to be transposed expired on 11 August 2006.

(1) OJ L 191, p. 59

21.11.2009

Official Journal of the European Union

C 282/34

Judgment of the Court of First Instance of 30 September 2009 — Lior v Commission and Commission v Lior

(Joined Cases T-192/01 and T-245/04) (1)

(Arbitration clause - Thermie and Altener II programs - Contracts concerning renewable energy and energy saving projects - Admissibility - Claim for payment - Justification of the costs - Claim for reimbursement of advance payments - Compensation)

2009/C 282/63

Language of the case: French

Parties

Applicant in Case T-192/01: Lior GEIE (Brussels, Belgium) (represented: initially by V. Marien and J. Choucroun, then V. Marien, lawyers)

Defendant in Case T-192/01: Commission of the European Communities (represented: initially by H. Støvlbæk, Agent and M. Bra, lawyer, then H. Støvlbæk and M. Konstantinidis, Agents and B. Wägenbaur, lawyer)

Applicant in Case T-245/04: Commission of the European Communities

Defendants in Case T-245/04: Lior GEIR and Lior International NV (Hoeilaart, Belgium) (represented by: V. Marien)

Re:

Two actions under Article 238 EC brought by Lior GEIE and the Commission respectively in pursuance of seven contracts concluded between the Commission and Lior as part of the Thermie programme and a contract concluded between the Commission and Lior as part of the Altener II programme.

Operative part of the judgment

The Court:

Orders Lior GEIE to pay the Commission:

—

EUR 6 156,75 for the Biogas contract, the Biomass contract and the Maxibrochure Bioclimatic contract, together with interest from 28 February 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

—

EUR 16 325,11 for the Biomass contract, together with interest from 30 June 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations from June 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

—

EUR 3 980 for the Wind Energy contract, together with interest from 15 January 2002 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in January 2002 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

—

EUR 36 000 for the Transport contract, together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment;

—

EUR 36 000for the Photovoltaic contract together with interest from 31 August 2001 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in August 2001 increased by 1.5 percentage points until 31 December 2002 and by 3.5 percentage points from 1 January 2003 until full payment.

2.	Orders Lior to pay the Commission EUR 32 800 for the Agores contract together with interest from 28 February 2003 at the interest rate in euros applied by the European Central Bank to its main refinancing operations in February 2003 increased by 1.5 percentage points until full payment.

3.	Declares that there is no need to give a ruling on the Commission's form of order in Case T-245/04 seeking an order that Lior International NV is jointly and severally liable for the payment of the sums owed by Lior.

4.	Orders Lior to pay, in addition to its own costs relating to the main proceedings in Joined Cases T-192/01 and T-245/04, one quarter of the Commission's costs relating to those proceedings.

5.	Orders Lior to bear all the costs relating to the application for interim relief in Case T-192/01 R.

6.	Orders the Commission to bear three-quarters of its own costs relating to the main proceedings in Case T-192/01 and three-quarters of its own costs relating to the proceedings brought against Lior in Case T-245/04.

7.	Orders the Commission to bear its own costs relating to the action against Lior International in Case T-245/04.

8.	Orders Lior International to bear its own costs.

(1) OJ C 303, of 27.10.2001.

21.11.2009

Official Journal of the European Union

C 282/35

Judgment of the Court of First Instance of 30 September 2009 — Hoechst v Commission

(Case T-161/05) (1)

(Competition - Agreements, decisions and concerted practices - Market for monochloroacetic acid - Decision finding an infringement of Article 81 EC - Market sharing and price-fixing - Attributability of the infringement - Fines - Proportionality - Cooperation - Aggravating circumstances - Repeated infringement - Access to the file - Report of the Hearing Officer - Order to bring the infringement to an end)

2009/C 282/64

Language of the case: German

Parties

Applicant: Hoechst GmbH, formerly Hoechst AG (Frankfurt am Main, Germany) (represented initially by M. Klusmann and U. Itzen, and subsequently by M. Klusmann, U. Itzen and S. Thomas, lawyers)

Defendant: Commission of the European Communities (represented initially by A. Bouquet, F. Amato and M. Schneider, and subsequently by A. Bouquet and M. Kellerbauer, Agents)

Re:

Application, principally, for annulment of Articles 2 and 3 of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — MCAA) and, in the alternative, application for reduction of the fine imposed on the applicant.

Operative part of the judgment

The Court:

1.	Sets the amount of the fine imposed on Hoechst AG in Article 2(b) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — MCAA) at EUR 66 627 million;

2.	Dismisses the remainder of the action;

3.	Orders each party to bear its own costs.

(1) OJ C 155, 25.6.2005.

21.11.2009

Official Journal of the European Union

C 282/35

Judgment of the Court of First Instance of 30 September 2009 — Arkema v Commission

(Case T-168/05) (1)

(Competition - Agreements, decisions and concerted practices - Market for Monochloroacetic acid - Decision finding an infringement of Article 81 EC - Market sharing and price fixing - Imputability of the unlawful conduct - Principle that penalties must fit the offence - Obligation to state the reasons on which the decision is based - Fines - Proportionality - Gravity and duration of the infringement - Deterrent effect - Actual impact on the market - Attenuating circumstances - Role of follower - Aggravating circumstances - Repeated infringement)

2009/C 282/65

Language of the case: French

Parties

Applicant: Arkema SA (Paris, France) (represented by: M. Debroux, lawyer)

Defendant: Commission of the European Communities (represented: initially by A. Bouquet and F. Amato, then A. Bouquet and X. Lewis, Agents)

Re:

Primarily, annul Article 1(d), Article 2(c) and Article 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case No COMP/ E-1/37.773 — MCAA) and, in the alternative, request to amend Article 2 (c) and (d) of that decision.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Arkema SA to pay the costs.

(1) OJ C 171, of 9.7.2005.

21.11.2009

Official Journal of the European Union

C 282/36

Judgment of the Court of First Instance of 30 September 2009 — Elf Aquitaine v Commission

(Case T-174/05) (1)

(Competition - Agreements, decisions and concerted practices - Monochloroacetic acid market - Decision finding an infringement of Article 81 EC - Market sharing and price fixing - Rights of the defence - Obligation to state the reasons on which the decision is based - Imputability of the infringement - Principle that penalties must fit the offence - Principle that penalties must have a proper legal basis - Presumption of innocence - Principle of sound administration - Principle of legal certainty - Misuse of powers - Fines)

2009/C 282/66

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery and É. Friedel, lawyers)

Defendant: Commission of the European Communities (represented by: initially A. Bouquet and F. Amato and subsequently by A. Bouquet and X. Lewis, Agents)

Re:

Principally, annulment of Articles 1(d), 2(c), 3 and 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/ E-1/37.773 — MCAA) or, in the alternative, application for annulment of Article 2(c) of that decision, or, in the further alternative, application for variation of the said Article 2(c)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Elf Aquitaine SA to pay the costs.

(1) OJ C 171, of 9.7.2005.

21.11.2009

Official Journal of the European Union

C 282/36

Judgment of the Court of First Instance of 30 September 2009 — Akzo Nobel and Others v Commission

(Case T-175/05) (1)

(Competition - Agreements, decisions and concerted practices - Market for monochloroacetic acid - Decision finding an infringement of Article 81 EC - Action for annulment - Admissibility - Market sharing and price fixing - Attributability of the infringement - Fines - Obligation to state the reasons on which the decision is based - Gravity and duration of the infringement - Deterrent effect)

2009/C 282/67

Language of the case: English

Parties

Applicants: Akzo Nobel NV (Arnhem, Netherlands); Akzo Nobel Nederland BV (Arnhem); Akzo Nobel AB (Stockholm, Sweden); Akzo Nobel Chemicals BV (Amersfoort, Netherlands); Akzo Nobel Functional Chemicals BV (Amersfoort); Akzo Nobel Base Chemicals AB (Skoghall, Sweden); and Eka Chemicals AB (Bohus, Sweden) (represented initially by C. Swaak and A. Käyhkö, and subsequently by C. Swaak and M. van der Woude, lawyers)

Defendant: Commission of the European Communities (represented initially by P. Hellström and F. Amato, and subsequently by A. Bouquet and X. Lewis, Agents)

Re:

Application, principally, for annulment of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — MCAA) and, in the alternative, reduction of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel AB, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB and Eka Chemicals AB to pay the costs.

(1) OJ C 171, 9.7.2005.

21.11.2009

Official Journal of the European Union

C 282/37

Judgment of the Court of First Instance of 2 October 2009 — Cyprus v Commission

(Joined Cases T-300/05 and T-316/05) (1)

(Agriculture - Common organisation of the markets - Transitional measures to be adopted by reason of the accession of new Member States - Regulation (EC) No 651/2005 laying down transitional measures in the sugar sector - Action for annulment - Period within which proceedings must be commenced - Point from which time starts to run - Delay - Amendment of a provision of a regulation - Reopening of the action against that provision and all provisions forming a body of rules with it - Inadmissibility - Regulation (EC) No 832/2005 on the determination of surplus quantities of sugar, isoglucose and fructose - Plea of illegality - Jurisdiction - Principle of non-discrimination - Legitimate expectations - Action for annulment - Proportionality - Statement of reasons - Non-retroactivity - Collegiality)

2009/C 282/68

Language of the case: Greek

Parties

Applicant: Republic of Cyprus (represented by: P. Kliridis, K. Lykourgos and A. Pantazi-Lamprou, Agents)

Defendant: Commission of the European Communities (represented by: initially L. Visaggio and H. Tserepa-Lacombe and subsequently by T. van Rijn and H. Tserepa-Lacombe, Agents)

Interveners in support of the applicant: Republic of Estonia (Case T-316/05) (represented by: L. Uibo, Agent); and Republic of Latvia (represented by: E. Balode-Buraka, Agent)

Re:

In Case T-300/05, application for annulment of Commission Regulation (EC) No 651/2005 of 28 April 2005 amending Regulation (EC) No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 108, p. 3) and, in Case T-316/05, application for annulment of Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3)

Operative part of the judgment

The Court:

1.	Dismisses the actions;

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

3.	Orders the Republic of Estonia and the Republic of Latvia to bear their own costs.

(1) OJ C 271, of 29.10.2005.

21.11.2009

Official Journal of the European Union

C 282/37

Judgment of the Court of First Instance of 2 October 2009 — Estonia v Commission

(Case T-324/05) (1)

(Agriculture - Common organisation of the markets - Transitional measures to be adopted by reason of the accession of new Member States - Regulation (EC) No 832/2005 laying down transitional measures in the sugar sector - Action for annulment - Collegiality - Concept of ‘stock’ - Circumstances in which stocks were built up - Statement of reasons - Sound administration - Good faith - Non-discrimination - Right of property - Proportionality)

2009/C 282/69

Language of the case: Estonian

Parties

Applicant: Republic of Estonia (represented by: L. Uibo, Agent)

Defendant: Commission of the European Communities (represented by: intially L. Visaggio and E. Randvere and subsequently by T. van Rijn, H. Tserepa-Lacombe and E. Randvere, Agents)

Intervener in support of the applicant: Republic of Latvia (represented by: intially E. Balode-Buraka, L. Ostrovska and K. Drēviņa, Agents)

Re:

Application for annulment of Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3)

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

3.	Orders the Republic of Latvia to bear its own costs.

(1) OJ C 271, of 29.10.2005.

21.11.2009

Official Journal of the European Union

C 282/38

Judgment of the Court of First Instance of 7 October 2009 — Vischim v Commission

(Case T-420/05) (1)

(Plant protection products - Active substance chlorothalonil - Inclusion in Annex I to Directive 91/414/EEC - Assessment procedure - Directive 2005/53/EC - Application for annulment - Application for a declaration of failure to act - Application for damages)

2009/C 282/70

Language of the case: English

Parties

Applicant: Vischim Srl (Cesano Maderno, Italy) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, acting as Agents)

Re:

Application for annulment, with regard to the inclusion of the active substance chlorothalonil, of Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances (OJ 2005 L 241, p. 51), for annulment of the review report for chlorothalonil (document SANCO/4343/2000 final of 14 February 2005), for a declaration of failure to act and for damages.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Vischim Srl to pay the costs, including those relating to the proceedings for interim measures.

(1) OJ C 36, 11.2.2006.

21.11.2009

Official Journal of the European Union

C 282/38

Judgment of the Court of First Instance of 6 October 2009 — FAB v Commission

(Case T-8/06) (1)

(State aid - Digital terrestrial television - Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg - Decision declaring the aid incompatible with the common market and ordering its recovery - Action for annulment - Meaning of State aid - State resources - Compensation for discharging public service obligations - Aid intended to promote culture - Legitimate expectations)

2009/C 282/71

Language of the case: German

Parties

Applicant: FAB Fernsehen aus Berlin GmbH (Berlin, Germany) (represented by: A. Böken, lawyer)

Defendant: Commission of the European Communities (represented by: H. van Vliet and K. Gross, Agents)

Intervener in support of the defendant: Deutscher Kabelverband eV (Berlin, Germany) (represented by: K. Struckmann, C Arhold and N. Wimmer, lawyers)

Re:

Application for annulment of Commission Decision 2006/513/EC of 9 November 2005 on the State Aid which the Federal Republic of Germany has implemented for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg (OJ 2006 L 200, p. 14).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders FAB Fernsehen aus Berlin GmbH to pay the costs.

(1) OJ C 86 of 8.4.2006.

21.11.2009

Official Journal of the European Union

C 282/39

Judgment of the Court of First Instance of 6 October 2009 — Germany v Commission

(Case T-21/06) (1)

(State aid - Digital terrestrial television - Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg - Decision declaring the aid incompatible with the common market and ordering its recovery - Principles of sound administration and proportionality - Rights of the defence)

2009/C 282/72

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, Agents, assisted by G. Quardt, lawyer)

Defendant: Commission of the European Communities (represented by: H. van Vliet and K. Gross, Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

(1) OJ C 86, of 8.4.2006.

21.11.2009

Official Journal of the European Union

C 282/39

Judgment of the Court of First Instance of 6 October 2009 — MABB v Commission

(Case T-24/06) (1)

2009/C 282/73

Language of the case: German

Parties

Applicant: Medienanstalt Berlin-Brandenburg (MABB) (Berlin, Germany) (represented by: initially by M. Schütte, lawyer, and B. Immenkamp, Solicitor, then by M. Schütte)

Defendant: Commission of the European Communities (represented by: H. van Vliet and K. Gross, Agents)

Intervener in support of the defendant: Deutscher Kabelverband eV (Berlin, Germany) (represented by: K. Struckmann, C Arhold and N. Wimmer, lawyers)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action as inadmissible;

2.	Orders Medienanstalt Berlin-Brandenburg (MABB) to pay the costs.

(1) OJ C 86, of 8.4.2006.

21.11.2009

Official Journal of the European Union

C 282/40

Judgment of the Court of First Instance of 30 September 2009 — Portugal v Commission

(Case T-183/06) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Flax textile - Effectiveness of checks)

2009/C 282/74

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent, assisted by C. Botelho Moniz and E. Maia Cadete, lawyers)

Defendant: Commission of the European Communities (represented by: M. Afonso, L. Parpala and F. Jimeno Fernández, acting as Agents)

Re:

Application for partial annulment of Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 124, p. 21).

Operative part of the judgment

The Court:

Annuls Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as it excludes all of the expenditure incurred by the Portuguese Republic in the flax sector.

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

(1) OJ C 212, 2.9.2006.

21.11.2009

Official Journal of the European Union

C 282/40

Judgment of the Court of First Instance of 5 October 2009 — de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho

(Joined Cases T-40/07 P and T-62/07 P) (1)

(Appeals - Staff cases - Officials - Leave - Medical leave - Placing on compulsory medical leave - Extension of compulsory medical leave - Prior new medical examination - Jurisdiction of the Civil Service Tribunal - Amendment of the subject-matter of the dispute)

2009/C 282/76

Language of the case: French

Parties

Appellants: José António de Brito Sequeira Carvalho (Brussels, Belgium) (represented by: O. Martins, lawyer) (T-40/07 P); and Commission of the European Communities (represented by: D. Martin, acting as Agent, assisted by C. Falmagne, lawyer) (T-62/07 P)

Other parties to the proceedings: Commission of the European Communities (represented by: D. Martin, acting as Agent, assisted by C. Falmagne, lawyer) (T-40/07 P); and José António de Brito Sequeira Carvalho (Brussels, Belgium) (represented by: O. Martins, lawyer) (T-62/07 P)

Re:

Two appeals against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05 de Brito Sequeira Carvalho v Commission EC- SC-I-A-1-149 and II-A-I 577, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal in Case T-40/07 P;

2.	Orders José António de Brito Sequeira Carvalho to bear his own costs and to pay those incurred by the Commission in the present proceedings;

Sets aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 December 2006 in Case F-17/05 de Brito Sequeira Carvalho v Commission EC- SC-I-A-1-149 and II-A-I 577, in so far as it annulled the decision of 13 July 2004 and the decisions to extend the compulsory medical leave subsequent to the decision of 22 September 2004;

4.	Dismisses the action brought by Mr de Brito Sequeira Carvalho before the Civil Service Tribunal in Case F-17/05 as inadmissible as regards the decision of 13 July 2004 and the decisions to extend the compulsory medical leave subsequent to the decision of 22 September 2004;

5.	Dismisses the appeal in case T-62/07 P as to the remainder;

6.	In Case T-62/07 P, orders Mr de Brito Sequeira Carvalho to bear half of his own costs relating to the proceedings before the Civil Service Tribunal and the present proceedings;

7.	In Case T-62/07 P, orders the Commission to bear its own costs and to pay half the costs incurred by Mr de Brito Sequeira Carvalho relating to the proceedings before the Civil Service Tribunal and the present proceedings.

(1) OJ C 82, 14.04.2007.

21.11.2009

Official Journal of the European Union

C 282/41

Judgment of the Court of First Instance of 30 September 2009 — Netherlands v Commission

(Case T-55/07) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Rural development support - Transitional measures - Concept of ‘multi-annual expenditure’ - Article 4(2) and (3) of Regulation (EC) No 2603/1999)

2009/C 282/77

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: initially H. Sevenster and M. de Grave, subsequently M. de Grave, C. Wissels and M. Noort, acting as Agents)

Defendant: Commission of the European Communities (represented by: T. van Rijn and F. Jimeno Fernández, acting as Agents)

Re:

Application for partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96) in so far as it relates to the Kingdom of the Netherlands and more particularly with regard to the financial correction applied to the reimbursement of ineligible expenditure in the framework of the EAGGF, Guarantee Section, for the year 2002 in the amount of EUR 5.67 million.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Order the Kingdom of the Netherlands to pay the costs.

(1) OJ C 82, 14.04.2007.

21.11.2009

Official Journal of the European Union

C 282/42

Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 — Sison v Council of the European Union

(Case T-341/07) (1)

(Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 - Actions for annulment - Adaptation of heads of claim - Judicial review - Statement of reasons - Conditions for implementation of a Community measure freezing funds)

2009/C 282/78

Language of the case: English

Parties

Applicant: Jose Maria Sison (Utrecht, Netherlands) (represented by: J. Fermon, A. Comte, H. Schultz, D. Gürses and W. Kaleck, Lawyers)

Defendant: Council of the European Union (represented by: M. Bishop and E. Finnegan, Agents)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland, (represented by S. Behzadi Spencer and I. Rao, Agents); Kingdom of the Netherlands, (represented by C. Wissels, M. de Mol, M. Noort and Y. de Vries, Agents) Commission of the European Communities (represented by P. Aalto and S. Boelaert, Agents)

Re:

First, an application for annulment in part of Council Decision of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58) and, second, an application for compensation

Operative part of the judgment

The Court:

Annuls Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC, Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/445, Council Decision 2008/343/EC of 29 April 2008 amending Decision 2007/868, Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/868, Council Decision 2009/62/EC of 26 January 2009 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2008/583, and Regulation (EC) No 501/2009 of 15 June 2009 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2009/62, in so far as those acts concern Jose Maria Sison;

2.	Reserves the costs.

(1) OJ C 269, 10.11.2007.

21.11.2009

Official Journal of the European Union

C 282/42

Judgment of the Court of First Instance of 30 September 2009 — France v Commission

(Case T-432/07) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Fruit and vegetables - Conditions for recognition of producers’ organisations)

2009/C 282/79

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues, A.L. During, acting as Agents)

Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart and F. Jimeno Fernández, Agents)

Re:

Application for annulment of Commission Decision 2007/647/EC of 3 October 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2007 L 261, p. 28), in so far as it excludes certain expenditure incurred by the French Republic for producers’ organisations in the fruit and vegetable sector.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the French Republic to pay the costs.

(1) OJ C 22, 26.01.2008.

21.11.2009

Official Journal of the European Union

C 282/43

Judgment of the Court of First Instance of 30 September 2009 — JOOP! v OHIM (!)

(Case T-75/08) (1)

(Community trade mark - Application for registration of a figurative Community trade mark representing an exclamation mark - Absolute ground for refusal - No distinctive character - No distinctive character acquired through use - Article 7(1)(b), (c) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b), (c) and 7(3) of Regulation (EC) No 207/2009)

2009/C 282/81

Language of the case: German

Parties

Applicant: JOOP! GmbH (Hamburg, Germany) (represented by: H. Schmidt-Hollburg, W. Möllering, A. Löhde, H. Leo, A. Witte, T. Frank, A. Theil, H.-P. Rühland, B. Willers and T. Rein, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 26 November 2007 (Case R 1134/2007-1) relating to an application for registration of a figurative sign as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders JOOP! GmbH to pay the costs.

(1) OJ C 107, 26.4.2008.

21.11.2009

Official Journal of the European Union

C 282/43

Judgment of the Court of First Instance of 6 October 2009 — Sundholm v Commission

(Case T-102/08 P) (1)

(Appeal - Staff case - Officials - Reports - Career development report drawn up in compliance with a judgment of the Tribunal - Appraisal year 2001/2002 - Justified absences - Obligation to state reasons)

2009/C 282/82

Language of the case: French

Parties

Appellant: Asa Sundholm (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: C. Berardis-Kayser and G. Berscheid, Agents, assisted by B. Wägenbaur, lawyer)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07 Sundholm v Commission, not published in the ECR, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07 Sundholm v Commission, not published in the ECR;

2.	Annuls the decision of 2 June 2006 by which the reporting officer on appeal established Ms Asa Sundholm's career development report for the period from 1 July 2001 to 31 December 2002;

3.	For the rest, dismisses the action brought at first instance;

4.	Orders the Commission of the European Communities to pay the costs of the procedure before the Civil Service Tribunal and of the present instance.

(1) OJ C 107, 26.4.2008.

21.11.2009

Official Journal of the European Union

C 282/44

Judgment of the Court of First Instance of 14 October 2009 — Ferrero v OHIM — Tirol Milch (TiMi KiNDERJOGHURT)

(Case T-140/08) (1)

(Community trade mark - Invalidity proceedings - Community figurative trade mark TiMi KiNDERJOGHURT - Earlier word mark KINDER - Relative ground for refusal - Lack of similarity of the signs - Earlier opposition proceedings - Absence of res judicata - Article 8(1)(b), Article 8(5) and Article 52(1)(a) of Regulation (EC) No 40/94 [now Article 8(1)(b), Article 8(5) and Article 53(1)(a) of Regulation (EC) No 207/2009)

2009/C 282/83

Language of the case: English

Parties

Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen and F. Jacobacci, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tirol Milch reg.Gen.mbH Innsbruck (Innsbruck, Austria)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 30 January 2008 (Case R 682/2007-2) relating to invalidity proceedings between Ferrero SpA and Tirol Milch reg.Gen.mbH Innsbruck.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ferrero SpA to pay the costs.

(1) OJ C 142, 7.6.2008.

21.11.2009

Official Journal of the European Union

C 282/44

Judgment of the Court of First Instance of 13 October 2009 — Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK)

(Case T-146/08) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark REDROCK - Earlier national word mark Rock - 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)

2009/C 282/84

Language of the case: Czech

Parties

Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: S. Beckmann, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Dvořáková and O. Montalto, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Redrock Construction s.r.o. (Prague, Czech Republic) (represented by: D. Krofta, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 18 February 2008 (Case R 506/2007-4) relating to opposition proceedings between Deutsche Rockwool Mineralwoll GmbH & Co. OHG and Redrock Construction s.r.o.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Deutsche Rockwool Mineralwoll GmbH & Co. OHG to bear its own costs and to pay three quarters of the costs incurred by Redrock Construction s.r.o.

3.	Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay one quarter of the costs incurred by Redrock Construction s.r.o.

(1) OJ C 158, OF 21.6.2008.

21.11.2009

Official Journal of the European Union

C 282/45

Judgment of the Court of First Instance of 30 September 2009 — JOOP! v OHIM (Representation of an exclamation mark in a rectangle)

(Case T-191/08) (1)

(Community trade mark - Application for registration of a figurative Community trade mark representing an exclamation mark in a rectangle - Absolute ground for refusal - No distinctive character - No distinctive character acquired through use - Article 7(1)(b), (c) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b), (c) and 7(3) of Regulation (EC) No 207/2009)

2009/C 282/85

Language of the case: German

Parties

Applicant: JOOP! GmbH (Hamburg, Germany) (represented by: H. Schmidt-Hollburg, W. Möllering, A. Löhde, H. Leo, A. Witte, T. Frank, A. Theil, H-P. Rühland, B. Willers and T. Rein, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 March 2008 (Case R 1822/2007-1) relating to an application for registration of a figurative sign as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders JOOP! GmbH to pay the costs.

(1) OJ C 183, 19.7.2008.

21.11.2009

Official Journal of the European Union

C 282/45

Judgment of the Court of First Instance of 30 September 2009 — Skareby v Commission

(Case T-193/08 P) (1)

(Appeal - Staff case - Officials - Reports - Career development report - Appraisal year 2004 - Fixing of objectives and communication of appraisal criteria)

2009/C 282/86

Language of the case: French

Parties

Appellant: Carina Skareby (Louvain, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: G. Berscheid and K. Herrmann, Agents)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 6 March 2008 in Case F-46/06 Skareby v Commission, not published in the ECR, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

Sets aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 6 March 2008 in Case F-46/06 Skareby v Commission, not published in the ECR, to the extent that the Civil Service Tribunal dismissed the claim based on the failure to fix objectives in advance, the failure to communicate the appraisal criteria in advance and Ms Carina Skareby's job description;

2.	Annuls the decision of 31 August 2005 establishing Ms Skareby's career development report for the period from 1 January to 31 December 2004 to the extent that it concerns point 6.1, entitled ‘Efficiency’;

3.	For the rest, dismisses the action brought before the Civil Service Tribunal as Case F-46/06;

4.	Orders the Commission of the European Communities to pay, in their entirety, the costs of the present instance and of the procedure before the Civil Service Tribunal.

(1) OJ C 197, 2.8.2008.

21.11.2009

Official Journal of the European Union

C 282/46

Judgment of the Court of First Instance of 14 October 2009 — Bank Melli Iran v Council

(Case T-390/08) (1)

(Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation - Freezing of funds - Actions for annulment - Judicial review - Misuse of powers - Equal treatment - Proportionality - Right to property - Rights of defence - Right to effective judicial protection - Obligation to state reasons - Competence of the Community)

2009/C 282/87

Language of the case: French

Parties

Applicant: Bank Melli Iran (Tehran, Iran) (represented by: L. Defalque, lawyer)

Defendant: Council of the European Union (represented by: M. Bishop, E. Finnegan and R. Liudvinaviciute-Cordeiro, Agents)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, Agent, assisted by S. Lee, Barrister); French Republic (represented by: G. de Bergues, L. Butel and E. Belliard, Agents); and Commission of the European Communities (represented by: P. Aalto and E. Cujo, Agents)

Re:

Annulment of paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29) in so far as it relates to Bank Melli Iran and its branches.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Melli Bank to pay, in addition to its own costs, the costs incurred by the Council of the European Union, including those relating to the proceedings for interim measures.

3.	Orders the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Commission of the European Union to bear their own costs, including those relating to the proceedings for interim measures.

(1) OJ C 272, 25.10.2008.

21.11.2009

Official Journal of the European Union

C 282/46

Order of the Court of First Instance of 24 September 2009 — SBS TV and SBS Danish Television v Commission

(Case T-12/05) (1)

(State aid - Recapitalisation of a public service broadcaster following a first decision ordering recovery of incompatible State aid - Decision not to raise any objections - Annulment of the first decision - No need to adjudicate)

2009/C 282/88

Language of the case: English

Parties

Applicants: SBS TV A/S, formerly TV Danmark A/S (Skovlunde, Denmark) and SBS Danish Television Ltd, formerly Kanal 5 Denmark Ltd (Hounslow, Middlesex, United Kingdom) (represented initially by D. Vandermeersch, T. Müller-Ibold, K. Nordlander and H. Peytz, and subsequently by D. Vandermeersch, H. Peytz and K.- U. Karl, lawyers)

Defendant: Commission of the European Communities (represented by: N. Kahn and M. Niejahr, Agents)

Intervener in support of the applicants: Viasat Broadcasting UK Ltd (West Drayton, Middlesex, United Kingdom) (represented by S. Hjelmborg and M. Honoré, lawyers)

Interveners in support of the defendant: Kingdom of Denmark (represented by J. Molde, Agent, and by P. Biering and K. Lundgaard Hansen, lawyers); and TV 2/Danmark A/S (Odense, Denmark) (represented by O. Koktvedgaard and M. Thorninger, lawyers)

Re:

Application for annulment of Commission Decision C (2004) 3632 final of 6 October 2004 relating to the recapitalisation of TV 2/Danmark A/S.

Operative part of the order

1.	There is no need to give a decision in the present action;

2.	Each party shall bear its own costs.

(1) OJ C 69, 19.3.2005.

21.11.2009

Official Journal of the European Union

C 282/47

Order of the Court of First Instance of 24 September 2009 — Viasat Broadcasting UK v Commission

(Case T-16/05) (1)

(State aid - Recapitalisation of a public service broadcaster following a first decision ordering the recovery of incompatible State aid - Decision not to raise objections - Annulment of the first decision - No need to adjudicate)

2009/C 282/89

Language of the case: Danish

Parties

Applicant: Viasat Broadcasting UK Ltd (West Drayton, Middlesex, United Kingdom) (represented by: S. Hjelmborg and M. Honoré, lawyers)

Defendant: Commission of the European Communities (represented by: H. Støvlbæk and M. Niejahr, Agents)

Interveners in support of the applicant: SBS TV A/S, formerly TV Danmark A/S (Skovlunde, Denmark); and SBS Danish Televsion Ltd, formerly Kanal 5 Denmark Ltd (Hounslow, Middlesex, United Kingdom) (represented inititially by D. Vandermeersch, K.-U. Karl, K. Nordlander and H. Peytz, and subsequently by D. Vandermeersch, K.-U. Karl and H. Peytz, lawyers)

Interveners in support of the defendant: Kingdom of Denmark, (represented by: J. Molde, Agent, and by P. Biering and K. Lundgaard Hansen, lawyers); and TV 2/Danmark A/S (Odense, Denmark) (represented by: O. Koktvedgaard and M. Thorninger, lawyers)

Re:

Application for annulment of Commission Decision C(2004) 3632 final of 6 October 2004 relating to the recapitalisation of TV 2/Danmark A/S.

Operative part of the order

1.	There is no further need to adjudicate on this action;

2.	Each party is ordered to bear its own costs.

(1) OJ C 82, 2.4.2005.

21.11.2009

Official Journal of the European Union

C 282/47

Order of the Court of First Instance of 5 October 2009 — Landesanstalt für Medien Nordrhein-Westfalen v Commission

(Case T-2/08) (1)

(Actions for annulment - State aid - Not individually concerned - Inadmissibility)

2009/C 282/90

Language of the case: German

Parties

Applicant: Landesanstalt für Medien Nordrhein-Westfalen (Düsseldorf, Germany) (represented by: A. Rosenfeld and G.-B. Lehr, lawyers)

Defendant: Commission of the European Communities (represented by: K. Gross and B. Martenczuk, Agents)

Intervener in support of the applicant: Federal Republic of Germany (represented by: M. Lumma and J. Möller, Agents)

Re:

Application for annulment of Commission Decision 2008/708/EC of 23 October 2007 on the State aid C 34/06 (ex N 29/05, ex CP 13/04) which the Federal Republic of Germany is planning to implement for the introduction of digital terrestrial television (DVB-T) in North Rhine-Westphalia (OJ 2008 L 236, p. 10).

Operative part of the order

1.	The action is dismissed as inadmissible;

2.	The Landesanstalt für Medien Nordrhein-Westfalen is ordered to bear its own costs and to pay those incurred by the Commission of the European Communities;

3.	The Federal Republic of Germany is ordered to bear its own costs.

(1) OJ C 64, 8.3.2008.

21.11.2009

Official Journal of the European Union

C 282/48

Order of the Court of First Instance of 30 September 2009 — Impala v Commission

(Case T-229/08) (1)

(Competition - Concentration - Sony BMG joint venture - Original decision annulled by the Court of First Instance - New decision declaring the concentration compatible with the common market - Action deprived of purpose - No need to adjudicate)

2009/C 282/93

Language of the case: English

Parties

Applicant: Independent Music Publishers and Labels Association (Impala, association internationale (Brussels, Belgium) (represented by: S. Crosby, J. Golding, Solicitors and I. Wekstein, lawyer)

Defendant: Commission of the European Communities (represented by: X. Lewis, F. Arbault and K. Mojzesowicz, Agents)

Interveners in support of the defendant: Sony Corporation of America, (New York, New York, United States), (represented by N. Levy, Barrister, R. Snelders and T. Graf, lawyers); and Bertelsmann AG (Gütersloh, Germany) (represented by P. Chappatte, J. Boyce and A. Lyle-Smythe, Solicitors)

Re:

Application for annulment of Commission Decision C (2007) 4507 of 3 October 2007 declaring compatible with the common market and the functioning of the EEA Agreement a concentration whereby the activities of Sony Corporation of America and Bertelsmann AG in the recorded music sector were combined into a joint venture (Case COMP/M.3333 — Sony/BMG), adopted following the annulment by the judgment delivered in Case T-464/04 Impala v Commission [2006] ECR II-2289 of Commission Decision 2005/188/EC of 19 July 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.3333 — Sony/BMG) (OJ 2005 L 62, p. 30).

Operative part of the order

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

2.	Independent Music Publishers and Labels Association (Impala, association internationale) shall bear its own costs and those of the Commission of the European Communities.

3.	Bertelsmann AG and Sony Corporation of America shall bear their own costs.

(1) OJ C 197, 2.8.2008.

21.11.2009

Official Journal of the European Union

C 282/49

Order of the Court of First Instance of 9 September 2009 — Wrigley v OHIM — Mejerigaarden (POLAR ICE)

(Case T-256/08) (1)

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

2009/C 282/94

Language of the case: English

Parties

Applicant: Wm. Wrigley Jr. Company (Chicago, United States) (represented by: M. Kinkeldey, S. Schäffler and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Mejerigaarden Holding A/S (Thisted, Denmark) (represented by: A. Ellermann Holmbom, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 15 April 2008 (Case R 845/2006-2) relating to opposition proceedings between Mejerigaarden Holding A/S and Wm. Wrigley Jr. Company.

Operative part of the order

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

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

3.	The intervener is ordered to bear its own costs.

(1) OJ C 209, 15.8.2008.

21.11.2009

Official Journal of the European Union

C 282/49

Action brought on 4 September 2009 — mtronix v OHIM — Growth Finance (mtronix)

(Case T-353/09)

2009/C 282/95

Language in which the application was lodged: German

Parties

Applicant: mtronix OHG (Berlin, Germany) (represented by: M. Schnetzer, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Growth Finance AG

Form of order sought

—	annul the contested decision of the Fourth Board of Appeal of OHIM of 23 June 2009 in Case R 1557/2007-4;

—	alter the contested decision so that the opposition of Growth Finance AG is not upheld, in the alternative, that that opposition is dismissed and Application No 4 193 661 for the services in Class 9 is upheld and the application is continued also for that class;

—	order the intervener to pay the costs of the proceedings, including those incurred during the appeal proceedings;

—	in the alternative, order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: mtronix OHG

Community trade mark concerned: The word mark ‘mtronix’ for goods in Classes 9 and 10 (Application No 4 193 661)

Proprietor of the mark or sign cited in the opposition proceedings: Growth Finance AG

Mark or sign cited in opposition: The word mark ‘Montronix’ for goods and services in Classes 7, 9 and 42 (Community trade mark No 2 762 862), in respect of opposition to the registration for goods in Class 9

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal partially upheld

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

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

21.11.2009

Official Journal of the European Union

C 282/50

Action brought on 14 September 2009 — Reber Holding v OHIM — Wedl & Hofmann (Walzer Traum)

(Case T-355/09)

2009/C 282/96

Language in which the application was lodged: German

Parties

Applicant: Reber Holding GmbH & Co. KG (Bad Reichenhall, Germany) (represented by: O. Spuhler and M. Geitz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Wedl & Hofmann (Mils/Hall in Tirol, Austria)

Form of order sought

—	annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 9 July 2009 in Case R 623/2008-4;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Wedl & Hofmann GmbH

Community trade mark concerned: Figurative mark ‘Walzer Taum’ in respect of goods in Classes 21 and 30 (Application No 4 593 752)

Proprietor of the mark or sign cited in the opposition proceedings: Reber Holding GmbH and Co. KG

Mark or sign cited in opposition: the German word mark ‘Walzertraum’ in respect of goods in Class 30 (No 1 092 615) and the opposition was directed against only the registration in respect of the goods in Class 30

Decision of the Opposition Division: Opposition was upheld

Decision of the Board of Appeal: Contested decision was annulled and the opposition was rejected

Pleas in law: Infringement of the first sentence of Article 42(2) of Regulation (EC) No 207/2009 (1) and the general principle of equal treatment in relation to the interpretation of the requirements for genuine use of the mark cited in oppostion

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

21.11.2009

Official Journal of the European Union

C 282/50

Action brought on 18 September 2009 — E.ON Ruhrgas and E.ON v Commission

(Case T-360/09)

2009/C 282/97

Language of the case: German

Parties

Applicants: E.ON Ruhrgas AG (Essen, Germany), E.ON AG (Düsseldorf, Germany) (represented by: G. Wiedemann and T. Klose, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested decision;

—	in the alternative, reduce, as appropriate, the amount of the fine imposed on the applicants in the contested decision;

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

Pleas in law and main arguments

The applicants challenge Commission Decision C(2009) 5355 final of 8 July 2009 in Case COMP/39.401 — E.ON/GDF. In the contested decision, a fine was imposed on the applicants and another undertaking for infringement of Article 81(1) EC, as they had participated in an agreement and concerted practices in the natural gas sector.

The applicants submit six pleas in support of their action.

First, the applicants question the applicability of Article 81(1) EC, as the agreements, criticised by the Commission, do not infringe the prohibition on cartels. In that regard, they claim, in particular, that they relate to permissible ancillary arrangements for the creation of the joint venture MEGAL.

Second, the applicants submit, in the alternative, that the Commission erred in law in assessing the duration of the infringement. In that regard, they claim that the agreements at issue came to an end shortly after the beginning of liberalisation and, in any event, with the formal termination agreement of 13 August 2004.

Third, the applicants complain of discrimination compared to the parties affected by the parallel Commission decisions of 26 October 2004 in the GDF/ENI and GDF/Enel cases. In that regard, they submit that in those cases the Commission, with reference to the liberalisation which had just occurred, refrained from imposing fines and, furthermore, that it should have done the same in the present case, since the cases are comparable — identical even — in all essential aspects.

Fourth, the applicants claim that the alleged 1975 agreements are already statute-barred, since they had been terminated more than five years before the Commission’s examination.

Fifth, the applicants allege an error in law in the calculation of the fines.

Lastly, it is submitted that the Commission breached the principles concerning liability for competition law infringements, in that E.ON AG cannot be held directly, or indirectly, liable for the alleged infringements committed by E.ON Ruhrgas AG.

21.11.2009

Official Journal of the European Union

C 282/51

Action brought on 16 September 2009 — Centraal bureau voor de statistiek v Commission of the European Communities

(Case T-361/09)

2009/C 282/98

Language of the case: Dutch

Parties

Applicant: Centraal bureau voor de statistiek (The Hague, Netherlands) (represented by: R. van den Tweel, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the Commission’s Decision of 7 July 2009, ref. ESTAT/E-1/ME/ykl/eb D(2009) 10188, concerning definitive payment of the contribution to expenses incurred in relation to the structure survey for 2005, in the sum of EUR 546 818,77;

—	in the alternative, order the Commission to pay the sum of EUR 38 295,55 together with interest thereon with effect from the 45th day after the date of the Decision of 7 July 2009 until the actual payment of that sum;

—	in either case, order the Commission to pay the costs of the proceedings

Pleas in law and main arguments

The applicant submits that the contested decision conflicts with Council Regulation (EEC) No 571/88 of 29 February 1988 on the organisation of Community surveys on the structure of agricultural holdings between 1988 and 1997 (OJ 1988 L 56, p. 1, as subsequently amended), with the agreement concluded between the applicant and the Commission concerning the Community contribution to the investigation costs for the structure survey for 2005 in the Netherlands (contract No 62102.2005.001-2005.055) and with the principles of legal certainty, protection of legitimate expectations and the duty to state reasons. In any event, the Decision incorrectly determines the remuneration to which the applicant is entitled.

In its first plea, the applicant submits that the Commission wrongly failed to award any remuneration under Article 14(1) of Regulation No 571/88 but instead tried to impose on the applicant a more detailed foundation for the costs incurred, not just of the number of holdings surveyed. As Article 14 of the Regulation expressly provides for a fixed remuneration per holding surveyed, up to a maximum of EUR 700 000, any other interpretation would moreover be contrary to the principles of the protection of legitimate expectations and of legal certainty.

In its second plea, the applicant submits that Article II.14.3 of the agreement between the applicant and the Commission does not apply to the costs invoiced by the Ministry of Agriculture. The Commission wrongly failed to take these invoices fully into account as actually incurred, direct costs that are eligible for subsidy. In any event, the Commission did not state adequate reasons for its decision.

Finally, the applicant submits, in the alternative, that, if Article II.14.3 of the agreement is indeed applicable, the costs eligible for subsidy were calculated incorrectly or in an incomprehensible way without further explanation, since the Commission wrongly takes into account the indirectly productive hours when calculating the applicable hourly rate. The Commission’s reasoning is not clearly and unambiguously expressed in the contested decision, which was therefore in any event established in breach of the duty to state reasons.

21.11.2009

Official Journal of the European Union

C 282/52

Appeal brought on 21 September 2009 by Giorgio Lebedef against the judgment of the Civil Service Tribunal delivered on 7 July 2009 in Case F-39/08, Lebedef v Commission

(Case T-364/09 P)

2009/C 282/99

Language of the case: French

Parties

Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—

set aside the judgment of the CST of 7 July 2009 in Case F-39/08, Giorgio Lebedef, resident at 4, Neie Wee, L-1670, Senningerberg, Luxembourg, official of the European Commission, assisted and represented by Frédéric Frabetti, 5, rue Jean Bertels, L-1230 Luxembourg, avocat à la Cour, with an address for service at his offices, against the Commission of the European Communities, represented by its Agents, with an address for service in Luxembourg, defendant, seeking annulment of the decisions of 29.5.2007, 20.6.2007, 28.6.2007, 6.7.2007, both decisions of 26.7.2007 and that of 2.8.2007 concerning the deduction of 32 days from the appellant’s entitlement to annual leave for 2007;

—	uphold the form of order sought by the appellant at first instance;

—	in the alternative, return the action to be heard by the Civil Service Tribunal;

—	rule on costs and order the European Commission to pay the costs.

Pleas in law and main arguments

By the present appeal, the appellant requests that the judgment of the Civil Service Tribunal (CST) of 7 July 2009, delivered in Case F-39/08 Lebedef v Commission, rejecting the action by which the appellant sought the annulment of a series of decisions concerning the deduction of 32 days from the appellant’s entitlement to annual leave for 2007, be set aside.

In support of his appeal, the appellant puts forward nine pleas in law, alleging:

—

failure to have regard to the sixth paragraph of Article 1 on Annex II to the Staff Regulations of officials of the European Communities with regard to the composition and operation of, inter alia, the Staff Committee and to Article 1(2) of the Framework Agreement on relations between the Commission and staff unions and associations;

—	incorrect interpretation and application of the concept of ‘trade union freedom’ based on Article 24b of the Regulations;

—

failure to have regard to point III.c concerning part-time work for medical reasons of Commission Decision [C(2004) 1597] of 28 April 2004 introducing implementing provisions on absences as a result of sickness or accident and, more particularly, the point providing that ‘any days of annual leave taken count as whole days’;

—	failure to have regard to the appellant’s state of health;

—	incorrect interpretation and application of the concepts ‘participation in staff representation’, ‘secondment to a trade union’ and ‘official trade union business’;

—	distortion of the facts and the appellant’s assertions and the material inaccuracy of the findings of the CST with regard to registration of ‘unauthorised absence’ in SysPer2;

—	an error in law committed by the CST by interpreting the concept of ‘absence’ as it is defined in Articles 57, 59 and 60 of the Staff Regulations;

—	an error in law committed by the CST in the application of Article 60 of the Staff Regulations; and

—	failure to give reasons as regards the assessments made by the CST which are challenged in the first eight pleas in law.

21.11.2009

Official Journal of the European Union

C 282/53

Action brought on 17 September 2009 — Insula v Commission

(Case T-366/09)

2009/C 282/100

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	declare the action admissible and well-founded;

—	declare that the Commission’s demand for reimbursement of the sum of EUR 114 996,82 is unfounded and, consequently, order the Commission to issue a credit note in the sum of EUR 114 996,82;

—	declare that the Commission’s demand for reimbursement of the sum of EUR 253 617,08 is well-founded in part and, consequently, order the Commission to issue a credit note in the sum of EUR 174 044,85;

—	order the Commission to pay damages of EUR 146 261,06;

—	in the alternative, declare that the applicant is entitled to compensation in the sum of EUR 573 273,42;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, based on an arbitration clause, the applicant requests the Court to declare that the debit notes by which the Commission demands, following a report from OLAF, recovery of advances paid to the applicant do not comply with the clauses of the various contracts concluded in respect of projects under the specific programme for research, technological development and demonstration on energy, environment and sustainable development and under the ALTENER II programme.

The pleas and main arguments raised by the applicant are essentially identical to those raised in Case T-246/09 Insula v Commission. (1)

(1) OJ 2009 C 193, p. 30.

21.11.2009

Official Journal of the European Union

C 282/53

Appeal brought on 23 September 2009 by Roberto Sevenier against the order of the Civil Service Tribunal delivered on 8 July 2009 in Case F-62/08, Sevenier v Commission

(Case T-368/09 P)

2009/C 282/101

Language of the case: French

Parties

Appellant: Roberto Sevenier (Paris, France) (represented by E. Boigelot and L. Defalque, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—	set aside the order delivered on 8 July 2009 by the Third Chamber of the European Union Civil Service Tribunal in Case F-62/08 Sevenier v Commission, served on the appellant on 13 July 2009;

—	allow the appellant to rely on his submissions to the European Union Civil Service Tribunal;

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

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the order of the Civil Service Tribunal (CST) of 8 July 2009, delivered in Case F-62/08 Sevenier v Commission, by which the CST dismissed as manifestly inadmissible the action by which the appellant had sought annulment of a decision of the Commission of 24 September 2007 rejecting the appellant’s application, firstly, to retract his offer to resign dated 19 October 1983 and, secondly, for a referral to the invalidity committee.

In support of his appeal, the appellant submits, principally, a single plea in law alleging an error in law committed by the CST in the interpretation of the concept of a purely confirmatory act, since the CST categorised the express decision, made following the implied rejection of the appellant’s application, as a purely confirmatory act despite the fact that the express decision upheld in part the application made by the appellant.

In the alternative, the appellant submits that the CST distorted and disregarded documents in the file and failed to fulfil its duty to give reasons by holding that there was no particular fact peculiar to the case which justified the CST not applying the established case-law on purely confirmatory acts.

21.11.2009

Official Journal of the European Union

C 282/54

Action brought on 18 September 2009 — GDF Suez v Commission

(Case T-370/09)

2009/C 282/102

Language of the case: French

Parties

Applicant: GDF Suez (Paris, France) (represented by: J.-P. Gunther and C. Breuvart, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—

annul, entirely or in part, Article 1 of the Decision insofar as it makes GDF Suez liable for having infringed the provisions of Article 81(1) EC by participating in an agreement and in concerted practices in the natural gas sector from at least 1 January 1980 until 30 September 2005, with regard to the infringement in Germany, and from 10 August 2000 at least until 30 September 2005, with regard to the infringement in France and, as a consequence, in addition annul Article 3 of the Decision insofar as it requires GDF Suez to cease the infringements referred to in Article 1 or with an identical or similar object or effect;

—	in the alternative, annul or substantially reduce the amount of the fine imposed on GDF Suez under Article 2 of the Decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By its present application, GDF Suez seeks, principally, the annulment, total or partial, of Decision C(2009) 5355 final adopted by the European Commission on 8 July 2009 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.401 — E.ON/GDF), concerning an agreement and concerted practices in the natural gas sector. In the alternative, the applicant seeks the annulment of or, failing that, a reduction in the fine imposed on it by that decision.

In support of its principal application for annulment of the Decision, the applicant raises four pleas in law, alleging:

—

infringement of Article 81 EC, of the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas before August 2000, because of:

—	the lack of anticompetitive subject-matter and effect of the 1975 side letters before August 2000;

—	the lack of effect on intra-Community trade before August 2000; and

—	the lack of any proof of the alleged infringement between January 1980 and February 1999;

—

infringement of Article 81 EC, the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2000, because of:

—	the lack of a single and continuous infringement between 1 January 1980 and 30 September 2005 and, as a consequence, the time-barring of the 1975 side letters;

—	the lack of concurrence of wills between the parties seeking application of the 1975 side letters after August 2000;

—	a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas; and

—	the failure to assess the autonomous conduct of GDF Suez in Germany and of E.ON/E.ON Ruhrgas in France;

—

a manifest lack of evidence with regard to the existence of an agreement and/or a concerted practice seeking to restrict the use in France by E.ON/E.ON Ruhrgas of gas transported by the MEGAL gas pipeline, because of:

—	the lack of any infringement on the French market caused by the letter from ‘Direktion G’;

—	a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas regarding France;

—	the exception based on the legal monopoly of GDF Suez on importation and supply of gas in France before the liberalisation of the gas market in January 2003;

—	errors in fact and in law in the application of Article 81 EC with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2004.

In support of its application, in the alternative, for annulment of the fine, the application puts forward a single plea alleging breach of the principles of equal treatment, of proportionality and of non-retroactivity.

In support of its application, very much in the alternative, for a reduction in the fine, the applicant puts forward six pleas in law, alleging:

—	that the alleged infringement concerning the gas markets in France has not been proved sufficiently in law and that the contested decision is vitiated by a lack of reasoning on that point;

—	breach of the principles of equal treatment and proportionality in that an identical fine has been imposed on GDF Suez and on E.ON/E.ON Ruhrgas;

—	incorrect assessment of the duration of the infringement;

—	incorrect assessment of the seriousness of the infringement;

—	incorrect assessment of the need to apply a load of 15 % to GDF Suez; and

—	incorrect assessment of the attenuating circumstances.

21.11.2009

Official Journal of the European Union

C 282/55

Action brought on 24 September 2009 — Retractable Technologies. v OHIM — Abbott Laboratories (RT)

(Case T-371/09)

2009/C 282/103

Language in which the application was lodged: German

Parties

Applicant: Retractable Technologies, Inc. (Little Elm, Texas, United States of America) (represented by: K. Dröge, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Abbott Laboratories (Abbott Park IL, United States of America)

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 24 July 2009 in Case R 1234/2008-4;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Retractable Technologies, Inc.

Community trade mark concerned: The figurative mark ‘RT’ for goods in Class 10 (Application No 4 129 037)

Proprietor of the mark or sign cited in the opposition proceedings: Abbott Laboratories

Mark or sign cited in opposition: The Spanish word mark ‘RTH’ for goods in Class 10

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

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

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

21.11.2009

Official Journal of the European Union

C 282/55

Action brought on 21 September 2009 — Visti Beheer BV v OHIM — Meister (GOLD MEISTER)

(Case T-372/09)

2009/C 282/104

Language in which the application was lodged: German

Parties

Applicant: Visti Beheer BV (Rotterdam, Nethrerlands) (represented by: A. Herbertz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Meister + Co. AG (Wollerau, Switzerland)

Form of order sought

—

Vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 26 June 2009 (Case R 1465/2008-1) so that it annuls the decision of the Office for Harmonisation in opposition procedure B 1 134 651 and grants the Community trade mark application No 5 243 209 for the contested goods;

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark ‘GOLD MEISTER’ in respect of goods and services in Classes 3, 14, 16, 35, 37, 40 and 42 (Application No 5 243 209)

Proprietor of the mark or sign cited in the opposition proceedings: Meister + Co. AG

Mark or sign cited in opposition: the German word mark No 39 534 716 and the Community mark No 2 607 737‘MEISTER’ for goods in Class 14, whereas the opposition is directed solely against the registration for goods in that Class

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

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

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

21.11.2009

Official Journal of the European Union

C 282/56

Action brought on 25 September 2009 — El Corte Inglés v OHIM — Pucci International (Emidio Tucci)

(Case T-373/09)

2009/C 282/105

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés (Madrid, Spain) (represented by: J. Rivas Zurdo, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Emilio Pucci International BV (Amsterdam, Netherlands)

Form of order sought

—

annul the decision of 18 June 2009 of the Second Board of Appeal of OHIM in Joined Cases 770/2008-2 and 826/2008-2 in so far as, by partially upholding the applicant and the opponent's applications, it rejects the Community mark 3 679 591 with respect to classes 3, 18, 24, 25 and for ‘articles for cleaning purposes; steelwool’ in class 21;

—	allow registration of Community mark No 3 679 591‘EMIDIO TUCCI’ in its entirety;

—	order the party or parties opposing this application to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘EMIDIO TUCCI’ (Application No 3 679 594) in handwritten letters for goods and services in classes 1 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: EMILIO PUCCI INTERNATIONAL B.V.

Mark or sign cited in opposition: Community figurative mark ‘EMILIO PUCCI’ No 203570 (classes 18 and 24), Italian word marks No 769250 (Classes 3, 14, 18, 21, 24, 25 and 33) and No 274991 (classes 9, 12, 18, 20, 26, 27 and 34) and Italian word mark No 275894 (classes 14, 18, 24 and 25).

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeals brought by the applicant and the opponent partially upheld.

Pleas in law: Incorrect interpretation of Article 8(1)(b) and 8(5) of Regulation No 207/2009.

21.11.2009

Official Journal of the European Union

C 282/57

Action brought on 28 September 2009 — Lorenz Shoe Group v OHIM — Fuzhou Fuan Leather Plastics Clothing Making (Ganeder)

(Case T-374/09)

2009/C 282/106

Language in which the application was lodged: German

Parties

Applicant: Lorenz Shoe Group AG (Taufkirchen, Austria) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd (Fujian, People’s Republic of China)

Form of order sought

—	Annul the decision of the First Board of Appeal of 16 July 2009 in Case R 1289/2008-1;

—	Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd

Community trade mark concerned: the word mark ‘Ganeder’ for goods in Classes 14, 18 and 25 (Application No 5 108 774)

Proprietor of the mark or sign cited in the opposition proceedings: Lorenz Shoe Group AG (formerly shoe fashion group LORENZ AG)

Mark or sign cited in opposition: The word mark ‘Ganter’ for goods in Class 25 (Community trade mark No 469 262), in respect of opposition only to the registration for goods in that class

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

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

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

21.11.2009

Official Journal of the European Union

C 282/57

Action brought on 25 September 2009 — Glenton España v OHIM — Polo/Lauren (POLO SANTA MARIA)

(Case T-376/09)

2009/C 282/107

Language in which the application was lodged: English

Parties

Applicant: Glenton España, SA (Madrid, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Polo/Lauren Company L.P. (New York, United States)

Form of order sought

—	Admit the application;

—	Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 594/2008-2;

—	Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark “POLO SANTA MARIA”, for goods and services in classes 18, 25, 36, 41 and 43

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: Benelux trade mark registration of the figurative mark “device of a silhouette of a polo player” for goods in classes 18 and 25

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Annulled partially the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned

21.11.2009

Official Journal of the European Union

C 282/58

Action brought on 29 September 2009 — Mövenpick-Holding AG v OHIM (PASSIONATELY SWISS)

(Case T-377/09)

2009/C 282/108

Language in which the application was lodged: German

Parties

Applicant: Mövenpick-Holding AG (represented by: M. Taxhet, lawyer)

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

Form of order sought

—	Vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and publish the application for registration of the mark PASSIONATELY SWISS (Application No 6 701 031),

—

In the alternative, declare that Article 7(1)(b) and (c), and (2) of Regulation (EC) 40/94 does not preclude the registration of the mark, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and refer the case back to the Board of Appeal,

—

In the alternative, vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and publish the mark PASSIONATELY SWISS (Application No 6 701 031) together with the declaration of the applicant that it disclaims any exclusive right to the element SWISS,

—

In the alternative, declare that Article 7(1)(b) and (c), and (2) of Regulation (EC) 40/94 does not preclude the registration of the mark with the inclusion of the statement of the applicant, that it disclaims any exclusive right to the element SWISS, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and refer the case back to the Board of Appeal,

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘PASSIONATELY SWISS’ for goods and services in Classes 16, 35, 41, 43 and 44 (Application No 6 701 031)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation 207/2009 (1)

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

21.11.2009

Official Journal of the European Union

C 282/58

Action brought on 30 September 2009 — SPAR v OHIM — SPA Group Europe (SPA GROUP)

(Case T-378/09)

2009/C 282/109

Language in which the application was lodged: German

Parties

Applicant: SPAR Handelsgesellschaft mbH (Schenefeld) (represented by: R. Kaase and J.-C. Plate, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: SPA Group Europe Ltd & Co. KG (Nürnberg, Germany)

Form of order sought

—	Annul the decision of the First Board of Appeal of Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 123/2008-1 for being incompatible with Article 8(1)(b) of Regulation (EC) No 40/94 (1);

—	Order OHIM to pay the costs incurred both in these proceedings and in the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: SPA Group Europe Ltd & Co. KG

Community trade mark concerned: the word mark ‘SPA GROUP’ for goods and services in Classes 16, 35, 41 and 44 (Application No 4 038 171)

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

Mark or sign cited in opposition: the German figurative mark ‘SPAR’ for goods and services in Classes 1 to 36 and 38 to 41 (No 30 108 039.9) and the figurative German mark ‘SPAR’ for services in Classes 35, 36 and 39 (No 30 404 087.8)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 40/94, since there is a likelihood of confusion between the two marks at issue

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

21.11.2009

Official Journal of the European Union

C 282/59

Action brought on 24 September 2009 — Italy v Commission

(Case T-379/09)

2009/C 282/110

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: F. Arena, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Commission Decision C (2009) 5497 of 13 July 2009 concerning State aid schemes No C 6/2004 (ex NN 70/01) and C 5/2005 (ex NN 71/04) implemented by Italy in favour of greenhouse growers (exemption from excise duties on gas oil used to heat greenhouses);

—	order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The Italian Government challenges before the Court of First Instance of the European Communities Commission Decision C (2009) 5497 of 13 July 2009 concerning State aid schemes No C 6/2004 (ex NN 70/01) and C 5/2005 (ex NN 71/04) implemented by Italy in favour of greenhouse growers (exemption from excise duties on gas oil used to heat greenhouses).

The applicant relies on five pleas in law in support of its action.

By its first plea, the applicant submits that the contested decision infringes Article 87(1) EC in so far as the legal provisions in question, which are regarded as constituting State aid incompatible with the common market, are not selective, on account of the fact that it is possible for any operator in the agricultural sector to benefit from the reduced rate of excise duty on gas oil used for heating greenhouses, and also the fact that there are fundamental differences between cultivation in greenhouses and cultivation in the open air, for which there are no production costs in respect of gas oil for heating purposes.

By the second plea, the applicant alleges infringement of Article 87(1) EC on the additional ground that the legal provisions in question do not in any way distort competition. In support of its position, the applicant refers to the Community Guidelines for State aid in the agriculture and forestry sector 2007 to 2013, paragraph 167 of which expressly states that total or partial exemptions from tax on motor fuels used for primary production in the agricultural sector will not unduly distort competition in the light of the small-scale structure of farms in the European Union.

By its third plea, the applicant alleges a failure to state reasons as regards the purported distortion of competition.

By its fourth plea, the applicant alleges infringement of Article 8 of Directive 92/81/EEC, (1) Article 15 of Directive 2003/96/EC (2) and Articles 33, 36 and 87 EC. It is submitted, in particular, that the exemptions were expressly authorised by those directives and that, in any event, the assessment as to whether the provisions in question are compatible with Community law must be carried out by taking account not only of the competition rules but also, and primarily, the provisions of the common agricultural policy. It is submitted in that connection that the common agricultural policy is intended to take precedence over the competition rules. It follows that as the contested measures are in line with the objectives set out in Article 33 EC, any argument that the application of the rules on State aid should take precedence is destined to fail.

By its fifth and last plea, the applicant complains of infringement of Article 87(3) EC, maintaining, in any event, that the derogation laid down in that provision is applicable, with specific reference to the applicability of the derogation for reasons of environmental protection referred to at paragraph 3.5 of the Community guidelines on State aid in the agriculture sector of 2000.

(1) Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12).

(2) Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

21.11.2009

Official Journal of the European Union

C 282/60

Action brought on 24 September 2009 — Bianchin v OHIM — Grotto (GASOLINE)

(Case T-380/09)

2009/C 282/111

Language in which the application was lodged: Italian

Parties

Applicant: Luciano Bianchin (Asolo, Italy) (represented by: G. Massa and P. Massa, lawyers)

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

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

Form of order sought

—	Annul the decision of 13 July 2009 on all the grounds set out in the application and order OHIM to pay the costs;

—	order the production of the documents filed in Case Nos B 630410, 000002087/C and R1455/2008-2.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘GASOLINE’ (application for registration No 2 901 064) for goods in Class 9.

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: GROTTO S.p.A.

Trade mark right of applicant for the declaration: Italian figurative mark composed of the word element ‘GAS (keep it simple)’ (registration Nos 959 343 and 876 729) for, inter alia, goods in Class 9, and figurative Community trade mark composed of the word element ‘GAS’ (No 2 867 463) for goods in Class 9.

Decision of the Cancellation Division: granted the application and declared that the registration of the Community trade mark in question was invalid.

Decision of the Board of Appeal: dismissed the appeal.

Pleas in law: Articles 8(1)(b) and 52(1)(b) of Regulation No 207/2009 are wholly inadequate.

21.11.2009

Official Journal of the European Union

C 282/60

Action brought on 28 September 2009 — Fuller & Thaler Asset Management v OHIM (BEHAVIOURAL INDEX)

(Case T-383/09)

2009/C 282/112

Language of the case: English

Parties

Applicant(s): Fuller & Thaler Asset Management, Inc. (San Mateo, United States) (represented by S. Malynicz, Barrister)

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

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2009 in case R 138/2009-1; and

—	Order the defendant to pay its own costs and those of the applicant

Pleas in law and main arguments

Community trade mark concerned: The word mark “BEHAVIOURAL INDEX” for goods and services in classes 9 and 36

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation 207/2009 as the Board of Appeal (i) erred in relation to the meaning and syntax of the mark, as well as its aptness or otherwise as an immediate and direct descriptive term for the goods and services in question; (ii) failed to establish facts of its own motion that would show that the Community trade mark concerned was descriptive to the relevant public, even though it correctly concluded that the relevant public was specialised; and (iii) failed to take account of the public interest that underlies this ground for refusal and failed to establish on the evidence that there was, in the relevant specialised sphere, a reasonable likelihood that other traders in that sphere would wish to use the Community trade mark concerned in the future.

21.11.2009

Official Journal of the European Union

C 282/61

Action brought on 2 October 2009 — Annco v OHIM — Freche et fils (ANN TAYLOR LOFT)

(Case T-385/09)

2009/C 282/113

Language in which the application was lodged: English

Parties

Applicant: Annco, Inc. (New York, United States) (represented by: G. Triet, lawyer)

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

Other party to the proceedings before the Board of Appeal: Freche et fils associés SARL (Paris, France)

Form of order sought

—	Declare the appeal well founded;

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 in case R 1485/2008-1;

—	Alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 in case R 1485/2008-1, in favour of the registration of the Community trade mark concerned for classes 18 and 25, in addition to class 35;

—	Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The mark “ANN TAYLOR LOFT”, for goods and services in classes 18, 25 and 35

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: French trade mark registration of the mark “LOFT” for goods in classes 18 and 25

Decision of the Opposition Division: Allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned; infringement of Article 75 of Council Regulation 207/2009 as the Board of Appeal wrongly relied on evidence and reasons on which the applicant was not given the opportunity to comment.

21.11.2009

Official Journal of the European Union

C 282/61

Action brought on 5 October 2009 — Grúas Abril Asistencia v Commission

(Case T-386/09)

2009/C 282/114

Language of the case: Spanish

Parties

Applicant: Grúas Abril Asistencia SL (Alicante, Spain) (represented by: R. L. García García, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Declare that the dismissal by the Spanish competition authorities and courts of the claim of the applicant, GRUAS ABRIL ASISTENCIA SL, is contrary to Articles 81 and 82 EC.

—

In consequence, order the Commission of the European Communities, which adopted the contested approval, to provide the necessary measures and guarantees in order to bring such unlawful activity to an end, imposing the appropriate fines and penalties for such infringement, and entitle BAS HERMANOS SL to be compensated for the loss it suffered as a result of that infringement.

—

Declare, in short, that by its conduct towards its service provider, the applicant, the company MAPFRE MUTUALIDAD DE SEGUROS Y REASEGUROS A PRIMA FIJA (now known as MAPFRE SA), infringed the Spanish Law on the Protection of Competition and Articles 81 and 82 EC, by unilaterally setting the rates for the breakdown services provided, setting rates below the cost price of such services, unjustifiably and arbitrarily requiring the services to be performed subject to conditions not provided for under the contract (performance of the service using breakdown trucks displaying MAPFRE’s logo), threatening to terminate the contract if such requirements were not met, and ultimately carrying out such a threat.

—	Order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant in the present proceedings is a family company that provides vehicle-towing services for breakdown assistance.

In its action, the applicant opposes MAPFRE SA’s conduct, allegedly in breach of the competition rules, which, in a contractual relationship for the provision of breakdown services, when required by MAPFRE or its insureds, for vehicles insured by MAPFRE, required the breakdown service to be provided, as the applicant itself states, using vehicles displaying the MAPFRE logo and the MAPFRE trade mark to be advertised completely free of charge, with rates set below the actual cost of the service provided.

In support of its action, the applicant alleges infringement of the Community and national rules on competition.

21.11.2009

Official Journal of the European Union

C 282/62

Action brought on 2 October 2009 — Rosenruist v OHIM (Representation of two curves crossed at one point inserted on a pocket)

(Case T-388/09)

2009/C 282/115

Language of the case: English

Parties

Applicant(s): Rosenruist — Gestão e serviços, Lda (Funchal, Portugal) (represented by S. Gonzáles Malabia and S. Rizzo, lawyers)

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

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 237/2009-2; and

—	Order the defendant to pay its own costs and those of the applicant

Pleas in law and main arguments

Community trade mark concerned: The mark representing two curves crossed at one point inserted on a pocket for goods and services in classes 18 and 25

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation 40/94 (which became Article 7(1)(b) of Council Regulation 207/2009) as the Board of Appeal wrongly found that the Community trade mark concerned lacked inherent distinctiveness.

21.11.2009

Official Journal of the European Union

C 282/63

Judgment of the Civil Service Tribunal (Third Chamber) of 23 September 2009 — Neophytou v Commission

(Case F-22/05 RENV) (1)

(Civil service - Referral back to the Tribunal after setting aside - Open competition - Not included on the reserve list - Selection board - Appointment)

2009/C 282/118

Language of the case: English

Parties

Applicant: Neophytos Neophytou (Itzig, Luxembourg) (represented by: S.A. Pappas, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Re:

Application for annulment of the decision of the selection board for open competition EPSO/A/1/03 for the constitution of a reserve list of assistant administrators (A8) having Cypriot citizenship not to include the applicant’s name on the reserve list of successful candidates — Case T-43/07 P referred back after appeal)

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Neophytou to bear half of his own costs relating to the proceedings before the Tribunal and the Court of First Instance;

3.	Orders the Commission of the European Communities to pay, in addition to all its own costs relating to the proceedings before the Tribunal and the Court of First Instance, half of the costs incurred by Mr Neophytou relating to those proceeding.

(1) OJ C 155, 25.6.2005, p. 29.

21.11.2009

Official Journal of the European Union

C 282/64

Order of the Civil Service Tribunal (First Chamber) of 7 October 2009 — Marcuccio v Commission

(Case F-122/07) (1)

(Staff case - Officials - Request for investigation - Refusal of an institution to translate a decision into the language chosen by the applicant - Manifest inadmissibility - Application manifestly lacking any foundation in law)

2009/C 282/121

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

Re:

Annulment of the Commission’s decision not to grant the applicant’s request that an investigation be carried out in relation to certain events which occurred during the period when the applicant was assigned to its delegation in Angola — Request that findings of investigation be communicated — Annulment of decision not to translate a note into the language chosen by the applicant — Application for damages.

Operative part of the order

The Tribunal:

1.	dismisses Mr Marcuccio’s action as being, in part, manifestly inadmissible and in part, as lacking any foundation in law.

2.	orders Mr Marcuccio to pay the costs.

(1) OJ C 64 of 08.03.2008, p. 65

21.11.2009

Official Journal of the European Union

C 282/65

Order of the Civil Service Tribunal (Third Chamber) of 8 July 2009 — Sevenier v Commission

(Case F-62/08) (1)

(Staff case - Officials - Permanent termination of service - Resignation - Application to withdraw)

2009/C 282/124

Language of the case: French

Parties

Applicant: Roberto Sevenier (Paris, France) (represented by: É. Boigelot, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and D. Martin, agents)

Re:

Annulment of the Commission’s decision rejecting the applicant’s request to withdraw his tender of resignation and for his case to be submitted to the medical committee and, consequently, an application for reinstatement of the applicant at the European Commission with reconstitution of his career from the date of his resignation.

Operative part of the order

The Tribunal:

(1)	dismisses the action as being manifestly inadmissible;

(2)	orders Mr Sevenier to pay the costs;

(3)	declares that there is no need to adjudicate on the application for leave to intervene;

(4)	orders the Council of the European Union to bear its own costs relating to the application for leave to intervene.

(1) OJ C 247 of 27.09.2008 p. 25

21.11.2009

Official Journal of the European Union

C 282/65

Action brought on 14 September 2009 — Nijs v European Court of Auditors

(Case F-77/09)

2009/C 282/125

Language of the case: French

Parties

Applicant: Bart Nijs (Bereldange, Luxembourg) (represented by: Fränk Rollinger, avocat)

Defendant: European Court of Auditors

Subject-matter and description of the proceedings

Application for annulment of the decision of the Committee ad hoc of the European Court of Auditors of 15 January 2009 removing the applicant from his post with effect from 1 February 2009 without reduction in pension

Form of order sought

Principally, annul the decision of the Committee ad hoc of the European Court of Auditors of 15 January 2009 removing the applicant from his post with effect from 1 February 2009 without reduction in pension;

Annul the European Court of Auditors’ decision 81-2007 of 20 September 2007 conferring certain powers of the Appointing Authority on a Committee ad hoc;

Annul all the preparatory decisions adopted by that Committee ad hoc, particularly those of 22/29 October and 23 November 2007 and of 12 June 2008 to open an administrative enquiry;

In the alternative, should the Tribunal not uphold the applications for annulment formulated in the principal heads of relief, hold that the penalty inflicted by the Committee ad hoc of the European Court of Auditors on 15 January 2009 is, on the basis of Article 10 of Annex IX to the Staff Regulations, for the reasons set out above, far too severe;

Refer the matter to a differently constituted Appointing Authority of the European Court of Auditors, to inflict a different penalty, if one is really considered necessary, much more suited to the facts;

In the further alternative, find expressly that the principle that procedures should be conducted with reasonable expedition was infringed in this case, as set out above, and taking account of the level of the penalty to be inflicted, if one is appropriate;

Order the defendant to pay the costs.

21.11.2009

Official Journal of the European Union

C 282/66

Action brought on 22 September 2009 — Schlienger v Commission

(Case F-79/09)

2009/C 282/126

Language of the case: French

Parties

Applicant: Marc Schlienger (Muchamiel, Spain) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for (i) annulment of the decision of the appointing authority of 15 December 2008, received on 16 January 2009, rejecting the applicants’ request for recognition of the ailment suffered by him as an occupational disease within the meaning of Article 73 of the Staff Regulations and (ii) so far as necessary annulment of the decision of 11 June 2009 rejecting the applicant’s complaint.

Application for EUR 12 000 in damages as compensation for the non-material damage suffered.

Form of order sought

—	Annul the decision of the appointing authority of 15 December 2008, received on 16 January 2009, rejecting the applicants’ request for recognition of the ailment suffered by him as an occupational disease within the meaning of Article 73 of the Staff Regulations;

—	So far as necessary, annul the decision of 11 June 2009 rejecting the complaint;

—	order the defendant to pay the sum of EUR 12 000 in compensation for non-material damage;

—	order the defendant to pay the costs.

21.11.2009

Official Journal of the European Union

C 282/66

Action brought on 26 September 2009 — Lenz v Commission

(Case F-80/09)

2009/C 282/127

Language of the case: German

Parties

Applicant: Erika Lenz (Osnabrück, Germany) (represented by: J. Römer and V. Lenz, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the Commission’s decision of 4 May 2009 not to pay the costs of the applicant’s treatment by a non-medical practitioner

Form of order sought

The applicant claims that the Tribunal should:

—	Annul the defendant’s decision of 4 May 2009 in the form of the decision of 8 July 2009 rejecting the complaint and order the defendant to reimburse 85 % of the costs of EUR 297 in respect of the non-medical practitioner, that is to say, in this case, EUR 253;

—	Declare that the defendant must reimburse to the applicant all the medical costs in the form of non-medical practitioners’ fees incurred after 1 April 2009;

—	Order the defendant to pay the costs of the proceedings and the lawyers’ costs incurred by the applicant in the pre-litigation and judicial proceedings.

		ISSN 1725-2423 doi:10.3000/17252423.C_2009.282.eng
Official Journal of the European Union		C 282

English edition	Information and Notices	Volume 52 21 November 2009

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2009/C 282/01	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 267, 7.11.2009	1