20.12.2008

Official Journal of the European Union

C 327/2

Judgment of the Court (Second Chamber) of 6 November 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-247/06) (1)

(Failure of a Member State to fulfil its obligations - Directive 85/337/EEC - Effects of certain projects on the environment - Heating installation - Energy production - Partial incineration of dangerous products)

(2008/C 327/02)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and F. Simonetti, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, acting as Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: T. Harris, I. Rao and J. Maurici, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 4(1), in conjunction with Annex I, point 9, of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Authorisation of a heating installation for the production of energy which partly incinerates dangerous waste without first carrying out an assessment of the effects on the environment — Waste disposal and waste recovery operations

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders the Commission to pay the costs;

3.	orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

(1) OJ C 190 of 12.8.2006.

20.12.2008

Official Journal of the European Union

C 327/2

Judgment of the Court (Third Chamber) of 6 November 2008 — European Parliament v Council of the European Union

(Case C-155/07) (1)

(Action for annulment - Decision 2006/1016/EC - Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community - Choice of legal basis - Article 179 EC - Article 181a EC - Compatibility)

(2008/C 327/03)

Language of the case: French

Parties

Applicant: European Parliament (represented by: R. Passos, A. Baas and D. Gauci, acting as Agents)

Defendant: Council of the European Union (represented by: M. Arpio Santacruz, M. Sims and D. Canga Fano, acting as Agents)

Intervener in support of the defendant: Commission of the European Communities (represented by A. Aresu and F. Dintilhac, acting as Agents)

Re:

Action for annulment — Council Decision 2006/1016/EC of 19 December 2006 granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community (OJ 2006 L 414, p. 95) — Choice of legal basis — Article 181a EC — Decision essentially concerning developing countries — Need to have recourse to a dual legal basis — Articles 179 EC and 181a EC

Operative part of the judgment

The Court:

1.	Annuls Council Decision 2006/1016/EC of 19 December 2006 granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community;

Orders that the effects of Decision 2006/1016 be maintained for European Investment Bank financing arrangements entered into before the entry into force, within a period of 12 months from the date of delivery of this judgment, of a new decision adopted on the appropriate legal basis, namely Articles 179 EC and 181a EC together;

3.	Orders the Council of the European Union to pay the costs except those of the Commission of the European Communities;

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

(1) OJ C 155, 7.7.2007.

20.12.2008

Official Journal of the European Union

C 327/3

Judgment of the Court (Second Chamber) of 6 November 2008 — Hellenic Republic v Commission of the European Communities

(Case C-203/07 P) (1)

(Appeal - Project to set up a common diplomatic representation in Abuja (Nigeria) - Reimbursement of sums owed by the Hellenic Republic - Offsetting against the amount to be paid by the Commission under the Regional Operational Programme for mainland Greece)

(2008/C 327/04)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: P. Mylonopoulos, S. Trekli and Z. Stavridi, acting as Agents)

Other party to the proceedings: Commission of the European Communities (represented by: I. Zervas and D. Triantafyllou, acting as Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) of 17 January 2007 in Case T-231/04 Hellenic Republic v Commission of the European Communities, by which the Court of First Instance dismissed as unfounded an action for annulment of the Commission decision to proceed to recovery by the offsetting of sums owed by Greece following its participation in the Abuja I and II projects to create a common diplomatic mission of the countries of the European Union in Abuja (Nigeria)

Operative part of the judgment

The Court:

1.	Dismisses the appeal.

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 155, 7.7.2007.

20.12.2008

Official Journal of the European Union

C 327/3

Judgment of the Court (Third Chamber) of 6 November 2008 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Trespa International B.V. v Nova Haven- en Vervoerbedrijf N.V.

(Case C-248/07) (1)

(Regulation implementing the Community Customs Code - Articles 291 and 297 - Favourable tariff treatment - End-use - Concept of ‘person importing the goods or having them imported for free circulation’ - Concept of ‘transfer of goods within the Community’ - Concept of ‘transferee’)

(2008/C 327/05)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Applicant: Trespa International B.V.

Defendant: Nova Haven- en Vervoerbedrijf N.V.

Re:

Preliminary ruling — Hof van beroep te Antwerpen — Interpretation of Articles 1a, 291 and 297 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) — Concepts of ‘transfer of goods within the Community’, ‘person importing the goods or having them imported for free circulation’ and ‘transferee’.

Operative part of the judgment

Article 291(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation No 89/97 of 20 January 1997, must be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers to the person for whom the goods are destined and who intends to assign them to the prescribed end-use, irrespective of whether he makes the customs declaration himself or has that done by a representative within the meaning of Article 5 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. That concept does not refer to the representative of that person before the customs authorities, disregarding those cases in which that person is deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No 2913/92 and who must therefore be considered an importer.

Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be interpreted as meaning that there has been no transfer of goods within the Community in a situation where goods are imported into Belgium then transported to the Netherlands, if the person authorised acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in Belgium then transported to the Netherlands is irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods are transferred, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation.

3.	Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘transferee’ contained therein does not refer to a customs agent who carries out customs formalities on behalf of the importer.

(1) OJ C 170, 21.7.2007.

20.12.2008

Official Journal of the European Union

C 327/4

Judgment of the Court (First Chamber) of 6 November 2008 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket

(Case C-291/07) (1)

(VAT - Place of taxable transactions - Place of supply for tax purposes - Service supplier established in a Member State other than that in which the customer is established - Status of taxable person - Services supplied to a national foundation carrying out both economic and non-economic activities)

(2008/C 327/06)

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Kollektivavtalsstiftelsen TRR Trygghetsrådet

Defendant: Skatteverket

Re:

Reference for a preliminary ruling — Regeringsrätten — Interpretation of Articles 9(2)(e) and 21(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and of Articles 56(1)(c) and 196 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National foundation which carries out both economic and other activities, using consultancy services supplied by a supplier established in another Member State in the context of its activities which do not fall within the scope of application of the Directive

Operative part of the judgment

Article 9(2)(e) 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 1999/59/EC of 17 June 1999, and Article 56(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that where the customer for consultancy services supplied by a taxable person established in another Member State carries out both an economic activity and an activity which falls outside the scope of those directives, that customer is to be regarded as a taxable person even where the supply is used solely for the purposes of the latter activity.

(1) OJ C 183, 4.8.2007.

20.12.2008

Official Journal of the European Union

C 327/5

Judgment of the Court (Second Chamber) of 6 November 2008 (reference for a preliminary ruling from the Conseil d'État — France) — Association nationale pour la protection des eaux et rivières — TOS v Ministère de l'écologie, du développement et de l'aménagement durables

(Case C-381/07) (1)

(Pollution of the aquatic environment - Directive 2006/11/EC - Article 6 - Dangerous substances - Discharges - Prior authorisation - Fixing of emission standards - Declaratory scheme - Fish farms)

(2008/C 327/07)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Association nationale pour la protection des eaux et rivières — TOS

Defendant: Ministère de l'écologie, du développement et de l'aménagement durables

Re:

Reference for a preliminary ruling — Conseil d'État — Interpretation of Article 6 of Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ 2006 L 64, p. 52) — Need for prior authorisation, laying down emission standards, for all discharges into water which may contain dangerous substances — Compatibility of national rules replacing prior authorisation with a mere declaratory scheme in respect of fish farms coupled, however, with a reference to the applicable environmental quality standards and a right for the competent administrative authority to object to the commencement of operations or to impose limits on discharges specific to the facility concerned

Operative part of the judgment

Article 6 of Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community cannot be interpreted as allowing the Member States, once programmes to reduce water pollution including environmental quality standards have been adopted under that article, to introduce a declaratory scheme, in respect of facilities regarded as being low-polluting in nature, subject to a reference to those standards and a right for the administrative authority to object to the commencement of the operations or to impose limits on discharges specific to the facility concerned.

(1) OJ C 269, 10.11.2007.

20.12.2008

Official Journal of the European Union

C 327/5

Judgment of the Court (Second Chamber) of 6 November 2008 — Kingdom of the Netherlands v Commission of the European Communities

(Case C-405/07 P) (1)

(Appeal - Article 95(5) EC - Directive 98/69/EC - Measures to be taken against air pollution by emissions from motor vehicles - Derogating national provision advancing the lowering of the Community limit on emissions of particulate matter produced by certain new diesel-powered vehicles - Commission's refusal - Specificity of the problem - Duties of care and to state reasons)

(2008/C 327/08)

Language of the case: Dutch

Parties

Appellant: Kingdom of the Netherlands (represented by: D.J.M. de Grave and C.M. Wissels, acting as Agents)

Other party to the proceedings: Commission of the European Communities (represented by: M. Patakia, H. van Vliet and A. Alcover San Pedro, acting as Agents)

Re:

Appeal against the judgment of 27 June 2007 of the Court of First Instance (Fourth Chamber) in Case T-182/06 Netherlands v Commission, by which it dismissed the application for annulment of Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) EC laying down limits on the emissions of particulate matter by diesel-powered vehicles (OJ 2006 L 142, p. 16)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of 27 June 2007 of the Court of First Instance of the European Communities in Kingdom of the Netherlands v Commission (T-182/06);

2.	Annuls Commission Decision 2006/372/EC of 3 May 2006 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) EC laying down limits on the emissions of particulate matter by diesel-powered vehicles;

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

(1) OJ C 269, 10.11.2007.

20.12.2008

Official Journal of the European Union

C 327/6

Judgment of the Court (Seventh Chamber) of 4 November 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-95/08) (1)

(Failure of a Member State to fulfil its obligations - Directive 2004/9/EC - Failure to designate the authorities responsible for the inspection of laboratories and for the audit of studies carried out by laboratories to assess compliance with the principles of good laboratory practice)

(2008/C 327/09)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and P. Oliver, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (OJ 2004 L 50, p. 28) — Failure to designate the authorities responsible for the inspection of laboratories and for the audit of studies carried out by laboratories to assess compliance with the principles of good laboratory practice

Operative part of the judgment

The Court:

declares that by not putting in place the authorities able to verify the implementation of the principles of good laboratory practice, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 3 of Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP);

2.	orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 116 of 9.5.2008.

20.12.2008

Official Journal of the European Union

C 327/6

Order of the Court (Sixth Chamber) of 6 October 2008 (reference for a preliminary ruling from the Tribunal de Grande Instance de Nanterre (France)) — Société Roquette Frères v Direction Générale des Douanes et Droits Indirects, Recette Principale de Gennevilliers de la Direction Générale des Douanes et des Droits Indirects

(Case C-466/06) (1)

(Article 104(3) of the Rules of Procedure - Common organisation of the markets in the sugar sector - Isoglucose - Setting of basic quantities for the allocation of production quotas - Isoglucose produced as an intermediate product - Article 24(2) of Regulation (EEC) No 1785/81 - Article 27(3) of Regulation (EC) No 2038/1999 - Article 1 of Regulation (EC) No 2073/2000 - Article 11(2) of Regulation (EC) No 1260/2001 - Article 1 of Regulation (EC) No 1745/2002 - Article 1 of Regulation (EC) No 1739/2003 - Production levies - Detailed rules for the application of the quota system - Account taken of the quantities of sugar in processed products - Determination of the exportable surplus - Determination of average loss)

(2008/C 327/10)

Language of the case: French

Referring court

Tribunal de Grande Instance de Nanterre

Parties

Applicant: Société Roquette Frères

Defendant: Direction Générale des Douanes et Droits Indirects, Recette Principale de Gennevilliers de la Direction Générale des Douanes et des Droits Indirects

Re:

Reference for a preliminary ruling — Tribunal de Grande Instance de Nanterre — Validity of Article 24(2) of Regulation (EEC) No 1758/81, Article 27(3) of Regulation (EC) No 2038/1999, Article 1 of Regulation (EC) No 2073/2000, Article 1(2) of Regulation (EC) No 1745/2002 and Article 1 of Regulation (EC) No 1739/2003 — Common organisation of the markets in the sugar sector — Isoglucose production quotas — (Non) inclusion of isoglucose used as an intermediate product — Validity of Regulation (EEC) No 1443/82 and Regulation (EC) No 314/2002 — Method of calculating levies due in respect of isoglucose production

Operative part of the order

Consideration of the first question referred has disclosed no factor of such a kind as to affect the validity of Article 24(2) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector, Article 27(3) of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector, Article 1 of Commission Regulation (EC) No 2073/2000 of 29 September 2000 reducing, for the 2000/2001 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements, Article 11(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector, Article 1 Commission Regulation (EC) No 1745/2002 of 30 September 2002 reducing, for the 2002/2003 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements or Article 1 of Commission Regulation (EC) No 1739/2003 of 30 September 2003 reducing, for the 2003/2004 marketing year, the guaranteed quantity under the production quotas for the sugar sector and the presumed maximum supply needs of sugar refineries under preferential imports.

Consideration of the first subparagraph of Article 5(5) of Commission Regulation (EEC) No 1443/82 of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector, as amended by Commission Regulation (EC) No 392/94 of 23 February 1994, and Article 6(4) of Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector, as amended, where appropriate, by Commission Regulation (EC) No 1140/2003 of 27 June 2003 has disclosed no factor of such a kind as to affect the validity of those provisions.

(1) OJ C 154, 1.7.2006.

20.12.2008

Official Journal of the European Union

C 327/7

Reference for a preliminary ruling from the Tribunale di Treviso (Italy) lodged on 18 August 2008 — Criminal proceedings against Luigi Pontini, Emanuele Rech, Dino Bonora, Giovanni Forato, Laura Forato, Adele Adami, Ivo Colomberotto

(Case C-375/08)

(2008/C 327/11)

Language of the case: Italian

Referring court

Tribunale di Treviso

Parties to the main proceedings

Luigi Pontini, Emanuele Rech, Dino Bonora, Giovanni Forato, Laura Forato, Adele Adami, Ivo Colomberotto

Question referred

The Tribunale makes a reference to the Court of Justice in order that the latter may make clear what the conditions are for eligibility for premiums for male bovine animals and, in particular, whether the requirement of use of forage areas is sufficient, irrespective of the existence of any valid legal title to make that use lawful (1).

(1) OJ L 160, p. 21.

20.12.2008

Official Journal of the European Union

C 327/7

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 18 August 2008 — Serrantoni Srl and Consorzio Stabile Edile Scrl v Comune di Milano

(Case C-376/08)

(2008/C 327/12)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicants: Serrantoni Srl and Consorzio Stabile Edile Scrl

Defendant: Comune di Milano

Questions referred

Is the correct application of Article 4 of Directive 2004/18/EC (1) of 31 March 2004 impeded by the provisions of national law laid down in Article 36(5) of Legislative Decree No 163 of 12 April 2006, as amended by Legislative Decree No 113 of 31 July 2007, under which:

—

where a member of a consortium participates in a tendering procedure for a public contract, the consortium itself is automatically excluded from participation solely on the ground that it has a particular legal form (that of a permanent consortium) rather than another, essentially identical, legal form (that of a grouping of producers' and workers' cooperatives or a grouping of artisan/handicraft businesses); and

—

where a permanent consortium participates in a tendering procedure for a public contract, and where it has declared that it is competing on behalf of other companies and that it will entrust the works to other companies if it is awarded the contract, a company is automatically excluded from participation solely on the formal ground that it is a member of that consortium?

Is the correct application of Articles 39, 43, 49 and 81 of the Treaty establishing the European Community impeded by the provisions of national law laid down in Article 36(5) of Legislative Decree No 163 of 12 April 2006, as amended by Legislative Decree No 113 of 31 July 2007, under which:

—

where a member of a consortium participates in a tendering procedure for a public contract, the consortium itself is automatically excluded from participation solely on the ground that it has a particular legal form (that of a permanent consortium) rather than another, essentially identical, legal form (a grouping of producers' and workers' cooperatives or a grouping of artisan/handicraft businesses), and

—

(1) OJ L 134, p. 114.

20.12.2008

Official Journal of the European Union

C 327/8

Reference for a preliminary ruling from the Corte d'appello di Roma (Italy) lodged on 12 September 2008 — Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini

(Case C-395/08)

(2008/C 327/13)

Language of the case: Italian

Referring court

Corte d'appello di Roma

Parties to the main proceedings

Applicant: Istituto nazionale della previdenza sociale (INPS)

Defendants: Tiziana Bruno and Massimo Pettini

Questions referred

Is the Italian State legislation (Article 7(1) of Law No 638/83) (1) which results in periods not worked under ‘vertical’ part-time arrangements not being taken into account as periods of qualifying contributions for the purpose of acquiring pension rights compatible with Directive 97/81/EC, and in particular Clause 4 [of the Framework Agreement] concerning the principle of non-discrimination?

Are those national provisions compatible with Directive 97/81/EC and, in particular, Clause 1 [of the Framework Agreement], which provides that national legislation must facilitate the development of part-time work, and Clauses 4 and 5, which provide that the Member States are to eliminate obstacles of a legal nature which may limit access to part-time work, since it is unquestionable that the failure to take into account for pension purposes the weeks not worked constitutes a significant disincentive to choosing ‘vertical’ part-time working arrangements?

Can Clause 4 [of the Framework Agreement] on the principle of non-discrimination also be extended to various kinds of part-time contract, in view of the fact that, in the case of ‘horizontal’ part-time work, where the total number of hours worked and for which remuneration is paid in the calendar year is equal, all the weeks of the calendar year are taken into account under national legislation, whereas they are not in the case of ‘vertical’ part-time work?

(1) Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Annex: Framework agreement on part-time work — OJ 1998 L 14, p. 9.

20.12.2008

Official Journal of the European Union

C 327/9

Reference for a preliminary ruling from the Corte d'Appello di Roma (Italy) lodged on 12 September 2008 — Istituto nazionale della previdenza sociale (INPS) v Daniela Lotti and Clara Matteucci

(Case C-396/08)

(2008/C 327/14)

Language of the case: Italy

Referring court

Corte d'Appello di Roma

Parties to the main proceedings

Applicant: Istituto nazionale della previdenza sociale (INPS)

Defendants: Daniela Lotti and Clara Matteucci

Questions referred

Is the Italian State legislation (Article 7(1) of Law No 638/83) which results in periods not worked under ‘vertical’ part-time arrangements not being taken into account as periods of qualifying contributions for the purpose of acquiring pension rights compatible with Directive 97/81/EC (1), and in particular Clause 4 [of the Framework Agreement] concerning the principle of non-discrimination?

Are those national provisions compatible with Directive 97/81/EC and, in particular, Clause 1 [of the Framework Agreement], which provides that national legislation must facilitate the development of part-time work, and Clauses and 5, which provide that the Member States are to eliminate obstacles of a legal nature which may limit access to part-time work, since it is unquestionable that the failure to take into account for pension purposes the weeks not worked constitutes a significant disincentive to choosing ‘vertical’ part-time working arrangements?

20.12.2008

Official Journal of the European Union

C 327/9

Action brought on 17 September 2008 — Commission of the European Communities v Republic of Austria

(Case C-401/08)

(2008/C 327/15)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima, A. Sipos, Agents)

Defendant: Republic of Austria

Form of order sought

—

Declare that the Republic of Austria has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), because the competent authorities in Austria failed to draw up an external emergency plan for all establishments to which Article 9 of the directive applies;

—	order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 11(1)(c) of Directive 96/82/EC requires Member States to ensure that, for all establishments to which Article 9 applies, the authorities designated for that purpose by the Member State draw up an external emergency plan for the measures to be taken outside the establishment. Those external emergency plans must not only contain information on on-site and off-site mitigatory action, but must also contain arrangements for providing the public with information relating to the accident and the behaviour which it should adopt. Moreover, the external emergency plans must for example also contain information for the emergency services of other Member States in the event of a major accident with possible transboundary consequences.

The objective of this application is to seek a declaration that by failing to draw up external emergency plans for all establishments to which Article 9 applies, the Republic of Austria has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

(1) OJ 1997 L 10, p. 13.

20.12.2008

Official Journal of the European Union

C 327/10

Reference for a preliminary ruling from the Oberlandesgericht Naumburg (Germany) lodged on 18 September 2008 — Investitionsbank Sachsen-Anhalt — Anstalt der Norddeutschen Landesbank — Girozentrale v District Auditor for the State Treasury of the Land Sachsen-Anhalt attached to the Landgericht Magdeburg

(Case C-404/08)

(2008/C 327/16)

Language of the case: German

Referring court

Oberlandesgericht Naumburg

Parties to the main proceedings

Applicant: Investitionsbank Sachsen-Anhalt– Anstalt der Norddeutschen Landesbank — Girozentrale

Defendant: District Auditor for the State Treasury of the Land Sachsen-Anhalt attached to the Landgericht Magdeburg

Questions referred

Should Article 86(1) EC, in conjunction with Article 81(1)(a) and (d) and 81(2) EC, be interpreted as meaning that the exemption from court costs and fees granted by the Land of Saxony-Anhalt to the Investment Bank established by it under Paragraph 6(1) of the Investitionsbank-Begleitgesetz (Investment Bank Ancillary Law) of 18 December 2003 (Gesetz- und Verordungsblatt des Landes Sachsen-Anhalt (GVBl. LSA) No 47/2003, p. 371) is invalid?

If the question under 2.1 is answered in the negative: Should the Community-law rules on competition under the first sentence of Article 86(2) EC be interpreted as meaning that the Investment Bank, like the Land of Saxony-Anhalt, enjoys exemption from court costs and fees only when it performs official tasks within the meaning of Paragraph 6 of the Regulation of 30 December 2003 establishing the Investment Bank of Saxony-Anhalt (GVBl. LSA 2004, p. 20), as amended by amending regulation of 2 December 2006 (GVBl. LSA, p. 534)?

20.12.2008

Official Journal of the European Union

C 327/10

(Case C-409/08)

(2008/C 327/17)

Language of the case: German

Referring court

Oberlandesgericht Naumburg

Parties to the main proceedings

Applicant: Investitionsbank Sachsen-Anhalt — Anstalt der Norddeutschen Landesbank — Girozentrale

Defendant: District Auditor for the State Treasury of the Land Sachsen-Anhalt attached to the Landgericht Magdeburg

Questions referred

Should Article 86(1) EC, in conjunction with Article 81(1)(a) and (d) and 81(2) EC, be interpreted as meaning that the exemption from court costs (fees and expenses) granted by the Land of Saxony-Anhalt to the Investment Bank established by it under Paragraph 6(1) of the Investitionsbank-Begleitgesetz (Investment Bank Ancillary Law) of 18 December 2003 (Gesetz- und Verordungsblatt des Landes Sachsen-Anhalt (GVBl. LSA) No 47/2003, p. 371) is invalid as infringing the prohibition of measures that restrict competition?

If the question in 2.1 is answered in the negative: Should the Community-law rules on competition under the first sentence of Article 86(2) EC be interpreted as meaning that the Investment Bank, like the Land of Saxony-Anhalt, enjoys exemption from court cost and fees only when it performs official tasks within the meaning of Paragraph 6 of the Regulation of 30 December 2003 establishing the Investment Bank of Saxony-Anhalt (GVBl. LSA 2004, p. 20), as amended by amending regulation of 2 December 2006 (GVBl. LSA, p. 534)?

20.12.2008

Official Journal of the European Union

C 327/11

Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 22 September 2008 — Swiss Caps AG v Hauptzollamt Singen

(Case C-411/08)

(2008/C 327/18)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Swiss Caps AG

Defendant: Hauptzollamt Singen

Questions referred

Is Rule 5 of the General Rules for the Interpretation of the Combined Nomenclature (Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 — Combined Nomenclature (CN)) (1) to be interpreted as meaning that capsule casings which consist of granulated starch and contain substances for supplementing the diet are to be regarded as packing material?

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

Is heading 1515 of the Combined Nomenclature to be interpreted as meaning that granulated starch capsule casings containing 580 mg of concentrated wheat-germ oil determine the character of the goods in such a way that the goods are excluded from heading 1515 of the Combined Nomenclature?

(1) OJ 1987 L 256, p. 1.

20.12.2008

Official Journal of the European Union

C 327/11

Appeal brought on 22 September 2008 by Lafarge SA against the judgment delivered by the Court of First Instance (Third Chamber) on 8 July 2008 in Case T-54/03 Lafarge SA v Commission of the European Communities

(Case C-413/08 P)

(2008/C 327/19)

Language of the case: French

Parties

Appellant: Lafarge SA (represented by: A. Winckler, F. Brunet, E. Paroche and H. Kanellopoulos, avocats)

Other parties to the proceedings: Commission of the European Communities, Council of the European Union

Form of order sought

—

Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2008 in Case T-54/03 Lafarge SA v Commission and, granting the form of order sought at first instance, consequently annul, on the basis of Article 229 of the EC Treaty, Article 61 of the Statute of the Court of Justice and Article 17 of Council Regulation No 17/62 (1), now Article 31 of Council Regulation No 1/2003 (2), Commission Decision No 2005/471/EC of 27 November 2002 (3), in so far as it imposed a fine on the appellant;

—

in the alternative, set aside in part the judgment of the Court of First Instance in Case T-54/03 Lafarge SA v Commission and, granting the form of order sought at first instance, consequently reduce the amount of the fine imposed by the Commission on the appellant in Decision No 2005/471/EC of 27 November 2002;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The appellant relies on six grounds in support of its appeal.

By its first ground, the appellant company submits that the Court of First Instance distorted the sense of the facts presented for its assessment, in so far as it held that the Commission had been able validly to establish the very existence of the infringements by reference to a context in which information was, allegedly, unlawfully exchanged on a world-wide basis, which resulted in restricting competition and stabilising the plasterboard market.

By its second ground, the appellant pleads infringement of the rules governing the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated in a single, complex, continuous infringement, without there even being any evidence capable of establishing the existence and duration of the infringement.

By its third ground, the appellant contends that the Court of First Instance infringed the obligation to state adequate grounds and the principle of equal treatment, in so far as it confirmed the Commission's view that a number of items of evidence was sufficient for the purpose of establishing that the appellant had committed the infringement, whereas that same evidence had been regarded as insufficient for the purpose of establishing the same infringement on the part of a competing company.

By its fourth ground, the appellant submits that the Court of First Instance infringed the principles of proportionality and equal treatment, in so far as it failed to review the starting amount of the fine imposed, which was set by the Commission without taking account of Lafarge's turnover or its market share by comparison with those of its competitors.

By its fifth ground, the appellant contends that the Court of First Instance committed a number of errors of law and infringed its duty to state adequate grounds, in so far as it held that the Commission was justified in increasing the fine imposed on the appellant on the ground of repeated infringement, whereas there was no legal basis or any definitive finding in that regard capable of justifying such an increase. In so doing, the Court of First Instance also infringed the general principle that penalties must have a proper legal basis as well as the principles of legal certainty and the sound administration of justice.

Lastly, by its sixth and final ground, the appellant submits that the Court of First Instance erred in law by finding that the Commission was justified in increasing the starting amount of the fine by way of a deterrent, whereas it should have taken account of the final amount of that fine in order to determine whether it was appropriate to increase the fine on such a basis.

(1) Council Regulation No 17 of 7 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ English Special Edition 1959-1962, p. 87.

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

(3) Commission Decision of 27 November 2002 in Case COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8).

20.12.2008

Official Journal of the European Union

C 327/12

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 23 September 2008 — Yasar Erdil v Land Berlin

(Case C-420/08)

(2008/C 327/20)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Yasar Erdil

Defendant: Land Berlin

Question referred

Can a Turkish national whose legal status is derived from the second indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey and who has lived in Germany since his birth in 1989 rely on the special protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC (1) of 29 April 2004?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77). (Corrigendum to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 229, p. 35)).

20.12.2008

Official Journal of the European Union

C 327/12

Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 26 September 2008 — Enviro Tech (Europe) LTD v Belgian State

(Case C-425/08)

(2008/C 327/21)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicant: Enviro Tech (Europe) Ltd

Defendant: Belgian State

Questions referred

Question 1:

—

In so far as it classifies nPB as a highly flammable substance (R11) on the basis of a single test carried out at a temperature of – 10 °C, does Directive 2004/73/EC (1) comply with Framework Directive 67/548/EEC (2), in particular with point A.9 of Annex V to that directive which lays down the methods for determining flash points?

—

Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC, in particular with point 4.2.3 of Annex VI to that directive, in so far as it classifies nPB as a category 2 substance which is toxic for reproduction (R60), first, without clear results in appropriate animal studies where toxic effects have been observed to provide a strong presumption that human exposure to the substance may result in developmental toxicity and, secondly, on the basis of tests in which toxicity was detected only in animals subjected to a concentration of 250 ppm, that is to say 11 times the maximum and 40 times the average of the concentration of nPB to which a person is exposed when handling the product?

—

Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC, in particular with Annexes V and VI thereto, in so far as it classifies nPB as highly flammable (R11) and as a category 2 substance which is toxic for reproduction (R60) on the basis of the precautionary principle without complying with the methods and criteria set out in Annexes V and VI to Directive 67/548/EEC?

—

Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC in so far as it classifies nPB as highly flammable (R11) and as a category 2 substance which is toxic for reproduction (R60) on the basis of tests which are different from those carried out on competing products, inter alia chlorinated halogens, and without regard to the principle of proportionality?

Question 2:

—

If Directive 2004/73/EC does not comply with Directive 67/548/EEC, should the Kingdom of Belgium have refrained from transposing into national law the classification of nPB which stems from Directive 2004/73/EC or even rejected that classification, even though under Article 2 of Directive 2004/73/EC ‘Members States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 October 2005 at the latest’?

(1) Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2004 L 152, p. 1).

(2) Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234).

20.12.2008

Official Journal of the European Union

C 327/13

Reference for a preliminary ruling from VAT and Duties Tribunals, London (United Kingdom) made on 29 September 2008 — Terex Equipment Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-430/08)

(2008/C 327/22)

Language of the case: English

Referring court

VAT and Duties Tribunals, London (pursuant to a request from the Edinburgh Tribunal Centre)

Parties to the main proceedings

Applicant: Terex Equipment Ltd

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

1.	Does the Code (1), and in particular Article 78, permit revision of the declaration to correct the CPC and if so, are HMRC required to amend the declaration and to regularise the situation?

2.	Were the goods in this case unlawfully removed from customs supervision within the meaning of Article 203(1) of the Code by reason of the operation of Article 865 IR (2)?

3.	If so, was a customs debt on importation thereby incurred under Article 203 of the Code?

Even if there was no customs debt under Article 203 of the Code, has a customs debt arisen by virtue of Article 204 having regard to

(i)	the findings on ‘obvious negligence’ and

(ii)	the question whether HMRC failed to comply with Article 221(3) 45 of the Code by failing to communicate the Article 204 customs debt within the time limit

Given that:

(i)	there can be no regularisation under Article 78 of the Code and

(ii)	there was a customs debt and

(iii)

there was a special situation as contemplated by Article 899 1R,

was it open to the Tribunal to conclude that there was no obvious negligence present, so that the customs debt should be remitted under Article 239 of the Code?

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

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

20.12.2008

Official Journal of the European Union

C 327/14

Reference for a preliminary ruling from VAT and Duties Tribunals, London (United Kingdom) made on 29 September 2008 — 1) FG Wilson (Engineering) Ltd, 2) Caterpillar EPG Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-431/08)

(2008/C 327/23)

Language of the case: English

Referring court

VAT and Duties Tribunals, London (pursuant to a request from the Northern Ireland Tribunal Centre)

Parties to the main proceedings

Applicants: FG Wilson (Engineering) Ltd, Caterpillar EPG Ltd

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

1.	Were the goods in this case unlawfully removed from customs supervision within the meaning of Article 203(1) of the Code (1), by reason of the operation of Article 865 IR (2)?

2.	If so, was a customs debt on importation thereby incurred under Article 203 of the Code?

3.	If the answers to questions 1 and 2 are in the affirmative, does the Code, and in particular Article 78(3), permit revision of the declaration to correct the CPC and if so, are HMRC required to amend the declaration and to regularise the situation?

If there can be no regularisation under Article 78 of the Code and given that there was a customs debt under Article 203 of the Code and given that it is common ground that there was a special situation as contemplated by Article 899 IR, was it in the circumstances and in the light of the findings that follow open to the Tribunal to conclude that there was no obvious negligence present, so that the customs debt should be remitted under Article 239 of the Code and the demand for customs duty should be withdrawn? In particular, in considering whether there has been obvious negligence on the part of the trader concerned, are the competent authorities entitled to take into account the fact that the revenue authority's own failing in its duty of care and management has contributed to the errors giving rise to the customs debt?

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

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

20.12.2008

Official Journal of the European Union

C 327/14

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 6 October 2008 — F. Gielen, other party: Staatssecretaris van Financiën

(Case C-440/08)

(2008/C 327/24)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: F. Gielen

Other party: Staatssecretaris van Financiën

Question referred

Is Article 43 EC to be interpreted as meaning that it does not preclude the application of a provision in a Member State's tax legislation to profits which a national of another Member State (foreign taxable person) has derived from a part of his undertaking operated in the first Member State, if that provision, when interpreted in a particular way, indeed makes a distinction between domestic and foreign taxable persons which — viewed in isolation — is contrary to Article 43 EC, but the foreign taxable person concerned has had an opportunity to opt for treatment as a domestic taxable person and has not done so for reasons of his own?

20.12.2008

Official Journal of the European Union

C 327/15

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 7 October 2008 — Elektrownia Pątnów II sp. z o.o. v Dyrektor Izby Skarbowej w Poznaniu

(Case C-441/08)

(2008/C 327/25)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Elektrownia Pątnów II sp. z o.o.

Respondent: Dyrektor Izby Skarbowej w Poznaniu

Questions referred

In the light of Community law (in particular the provisions of Directive 69/335/EEC) (1), are tax authorities obliged when charging capital duty on an increase in capital to take into account transactions relating to the same component of capital which were liable to a capital duty before the date of Poland's accession to the European Union?

In particular, does the mechanism provided for in the second indent of Article 5(3) of Directive 69/335/EEC apply to situations in which the conversion of loans granted to a capital company that are referred to in Article 4(2)(c) of the directive takes place after accession, but those loans have, on the basis of the national legislation in force until the date of accession, previously been taxed in accordance with the principles set out in the Polish Law on civil law transactions tax?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 (II), p. 412).

20.12.2008

Official Journal of the European Union

C 327/15

Appeal brought on 8 October 2008 by Região autónoma dos Açores against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-37/04 Região Autónoma dos Açores v Council of the European Union

(Case C-444/08 P)

(2008/C 327/26)

Language of the case: English

Parties

Appellant: Região autónoma dos Açores (represented by: M. Renouf, Solicitor, C. Bryant, Solicitor, H. Mercer QC)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities, Kingdom of Spain, Seas at Risk VZW, WWF — World Wide Fund for Nature, Stichting Greenpeace Council

Form of order sought

The appellant claims that the Court should:

—	Set aside the judgment of the Court of First Instance of 1 July 2008 in Case T-37/04;

—	Declare the application in Case T-37/04 admissible;

—

Annul Articles 3 and 11 and the Annex of Council Regulation 1954/2003 (1) in so far as they: a) provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; and b) exclude deep-sea species (i.e. those demersal species covered by Regulation No 2347/2002 (2)) from the scope of Articles 3 and 11 of the Council Regulation 1954/2003.

—

Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Regulations 685/95 (3) and 2027/95 (4): a) Removes (i) the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used, and (ii) the determination of the fishing effort, as effected by Regulation 2027/95; b) Removes (i) the power to determine a maximum annual fishing effort by area in respect of deep-sea species (i.e. those demersal species covered by Regulation No 2347/2002) and (ii) the determination of the maximum annual fishing effort, as effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;

—	Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;

—	Refer the case back to the Court of First Instance if the Court of Justice does not consider that the state of the proceedings is such as to enable it to give final judgment; and

—	Order the Council of the European Union to pay the costs incurred by the Autonomous Region of the Azores (Região Autónoma dos Açores) in respect of both the proceedings at first instance and the present appeal.

Pleas in law and main arguments

The appellant relies on seven grounds to support its appeal against the above mentioned Court of First Instance judgment.

First, that the Court of First Instance erred in law by finding that the protection afforded to the appellant under Article 299(2) EC is not sufficient to establish that the appellant is individually concerned by the contested provisions.

Second, that the Court of First Instance wrongly concluded that only Member States, and not regional authorities, have the right to defend the general interest of their territory.

Third, that the Court of First Instance erred in law by failing to distinguish environmental from economic considerations.

Fourth, that the Court of First Instance erred in law by finding that the contested provisions would not entail harmful effects for the fish stocks and for the marine environment in the Azores and, concequently, for the survival of the fishing sector in the region.

Fifth, that the Court of First Instance erred in law by finding that the effect of the contested provisions on the appellant's legislative and executive powers did not make the appellant individually concerned by the provisions.

Sixth, that the Court of First Instance erred in law by finding that the appellant's application was not admissible by virtue of the lack of other effective judicial remedies available to the appellant.

Seventh, that the Court of First Instance erred in law by failing to consider the factors relied upon by the appellant cumulatively as well as separately.

(1) Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ L 289, p. 1).

(2) Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific acess requirements and associated conditions applicable to fishing for deep-sea stocks (OJ L 351, p. 6).

(3) Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ L 71, p. 5).

(4) Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources (OJ L 199, p. 1).

20.12.2008

Official Journal of the European Union

C 327/16

Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 9 October 2008 — Société Solgar Vitamin's France, Valorimer SARL, Christian Fenioux, L'Arbre de Vie SARL, Société Source Claire, Nord Plantes EURL, Société RCS Distribution, Société Ponroy Santé — Intervener: Syndicat de la Diététique et des Compléments Alimentaires v Ministre de l'Économie, des Finances et de l'Emploi, Ministre de la Santé, de la Jeunesse et des Sports, Ministre de l'Agriculture et de la Pêche

(Case C-446/08)

(2008/C 327/27)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicants: Société Solgar Vitamin's France, Valorimer SARL, Christian Fenioux, L'Arbre de Vie SARL, Société Source Claire, Nord Plantes EURL, Société RCS Distribution, Société Ponroy Santé

Defendants: Ministre de l'Économie, des Finances et de l'Emploi, Ministre de la Santé, de la Jeunesse et des Sports, Ministre de l'Agriculture et de la Pêche

Questions referred

(1)

Must Directive 2002/46/EC of 10 June 2002 (1), and in particular Articles 5(4) and 11(2) thereof, be interpreted as meaning that, although in principle it is for the Commission to determine the maximum amounts of vitamins and minerals present in food supplements, the Member States remain competent to adopt legislation in this field so long as the Commission has not adopted the necessary Community measure?

(2)

If that question is answered in the affirmative:

(a)

If the Member States are required, in order to set those maximum amounts, to comply with the provisions of Articles 28 EC and 30 EC, must they also be guided by the criteria laid down in Article 5 of Directive 2002/46/EC, including the requirement for a risk assessment based on generally accepted scientific data, in an area in which there is still relative uncertainty?

(b)

May a Member State set maximum levels when it is impossible, as in the case of fluoride, to calculate precisely the intake of vitamins and minerals from other dietary sources, mains water in particular, for each consumer group and on a territory-by-territory basis? May it in that case set a zero level where risks are known to exist, without resorting to the safety procedure provided for in Article 12 of Directive 2002/46/EC?

(c)

When setting maximum levels, if it is possible to take into account differences in the degrees of sensitivity of different consumer groups, as provided for in Article 5(1)(a) of Directive 2002/46/EC, can a Member State also take into account the fact that a measure addressed solely to sections of the population who are particularly exposed to risk, appropriate labelling for example, might dissuade that group from using a nutrient that would be beneficial to it in small amounts? Might taking into account that difference in sensitivity result in the application to the entire population of the maximum level appropriate for sensitive sections of the population, in particular children?

(d)

To what extent may maximum levels be set in the case where no safe limits have been laid down because there is no established danger to health? More generally, to what extent and in what circumstances might the weighting of criteria to be taken into account lead to the setting of maximum levels that are significantly lower than the safe limits accepted for those nutrients?

(1) Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ L 183, 12.7.2002, p. 51).

20.12.2008

Official Journal of the European Union

C 327/17

Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Otto Sjöberg v Åklagaren

(Case C-447/08)

(2008/C 327/28)

Language of the case: Swedish

Referring court

Svea hovrätt

Parties to the main proceedings

Applicant: Otto Sjöberg

Defendant: Åklagaren

Questions referred

1.	May discrimination on grounds of nationality be accepted, under some circumstances, on national gaming and lottery markets on the basis of overriding reasons in the general interest?

If there are a number of objectives pursued by the restrictive policy adopted on a national gaming and lottery market and one of them is the financing of social activities, can the latter then be said to be an incidental beneficial consequence of the restrictive policy? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the objective of financing social activities cannot be said to be the principal objective of the restrictive policy?

Can the State rely on overriding reasons in the general interest as justification for a restrictive gaming policy if State-controlled companies market gaming and lotteries, the revenue from which accrues to the State, and one of several objectives of that marketing is the financing of social activities? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the financing of social activities is not found to be the principal objective of the marketing?

Can a total prohibition on the marketing of gaming and lotteries organised in another Member State by a gaming company established there and supervised by that Member State's authorities be proportionate to the objective of controlling and supervising gaming activity, when at the same time there are no restrictions on the marketing of gaming and lotteries organised by gaming companies established in the Member State which pursues the restrictive policy? What is the answer to the question if the objective of such an arrangement is to limit gaming?

Is a gaming operator who has been granted a licence to operate certain gaming activities in a State and is supervised by the competent authority in that State entitled to market its gaming products in other Member States through, for example, advertisements in newspapers, without first applying for a licence from those States' competent authorities? If this question is answered in the affirmative, does this mean that a Member State's rules which are based on the imposition of criminal penalties on the promotion of participation in lotteries organised abroad constitute an obstacle to the freedom of establishment and the freedom to provide services which can never be accepted on the basis of overriding reasons in the general interest? Is it of any significance for the answer to the first question whether the Member State where the gaming operator is established invokes the same overriding reasons in the general interest as the State where the operator wishes to market its gaming activities?

20.12.2008

Official Journal of the European Union

C 327/18

Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Anders Gerdin v Åklagaren

(Case C-448/08)

(2008/C 327/29)

Language of the case: Swedish

Referring court

Svea hovrätt

Parties to the main proceedings

Applicant: Anders Gerdin

Defendant: Åklagaren

Questions referred

1.	May discrimination on grounds of nationality be accepted, under some circumstances, on national gaming and lottery markets on the basis of overriding reasons in the general interest?

20.12.2008

Official Journal of the European Union

C 327/18

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 17 October 2008 — Panagiotis I. Karanikolas, Valsamis Daravanis, Georgios Kouvoukliotis, Panagiotis Dolou, Dimitrios Z. Parisis, Konstantinos Emmanouil, Ioannis Anasoglou, Pantelis A. Beis, Dimitrios Khatziandreou, Ioannis A. Zaragkoulias, Triantafillos K. Mavrogiannis, Sotirios T. Liotakis, Vasilios Karampasis, Dimitrios Melissidis, Ioannis V. Kleovoulos, Dimitrios I. Patsakos, Theodoros Fournarakis, Dimitrios K. Dimitrakopoulos and Sinetairismos Paraktion Alieon Kavalas v Ipourgos Agrotikis Anaptixis kai Trofimon and Nomarkhiaki Aftodiikisi Dramas — Kavalas — Xanthis

(Case C-453/08)

(2008/C 327/30)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimants: Panagiotis I. Karanikolas, Valsamis Daravanis, Georgios Kouvoukliotis, Panagiotis Dolou, Dimitrios Z. Parisis, Konstantinos Emmanouil, Ioannis Anasoglou, Pantelis A. Beis, Dimitrios Khatziandreou, Ioannis A. Zaragkoulias, Triantafillos K. Mavrogiannis, Sotirios T. Liotakis, Vasilios Karampasis, Dimitrios Melissidis, Ioannis V. Kleovoulos, Dimitrios I. Patsakos, Theodoros Fournarakis, Dimitrios K. Dimitrakopoulos and Sinetairismos Paraktion Alieon Kavalas

Defendants: Ipourgos Agrotikis Anaptixis kai Trofimon and Nomarkhiaki Aftodiikisi Dramas — Kavalas — Xanthis

Interveners: Alieftikos Agrotikos Sinetairismos gri-gri nomou Kavalas ‘Makedonia’ and Panellinia Enosi Plioktiton Mesis Aliias (P.E.P.M.A.)

Questions referred

1.	Is it permitted, for the purposes of Article 1(2) of Council Regulation No 1626/94, for a Member State to adopt supplementary measures consisting in the complete prohibition of the use of fishing gear whose use is in principle allowed under the provisions of that regulation?

Is it permitted, for the purposes of the provisions of that regulation, to use in the marine area of a Member State with a Mediterranean coastline fishing gear which is not included among the gear specified as being in principle prohibited in Article 2(3) and Article 3(1) and (1a) of the regulation and whose use was prohibited before the regulation entered into force by a national provision of the Member State?

20.12.2008

Official Journal of the European Union

C 327/19

Action brought on 21 October 2008 — Commission of the European Communities v Portuguese Republic

(Case C-458/08)

(2008/C 327/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

—	A declaration that the Portuguese Republic, by imposing in respect of the provision of building services in Portugal the same requirements as in respect of establishment, has failed to fulfil its obligations under Article 49 EC;

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

Pleas in law and main arguments

The Portuguese law on access to construction activity and continued operation therein (Decree-Law No 12/2004) makes the exercise of construction activity in Portugal subject to a licence.

No undertaking, without exception, may carry on in Portugal building, rebuilding, extension, alteration, repair, conservation, cleaning, restoration or demolition work or, in general terms, any work whatsoever related to construction without prior authorisation issued by the Portuguese authorities.

The Portuguese competition legislation prohibiting undertakings, including Community undertakings, from providing construction services in Portugal without prior authorisation to enter the construction industry issued by the Portuguese authorities constitutes an infringement of Article 49 EC.

The requirements for access to the building industry, as laid down in the Portuguese legislation, are establishment requirements. The Portuguese legislation does not distinguish establishment from the provision of services of a temporary nature.

In order to provide services in Portugal undertakings established in another Member State are obliged to satisfy all the conditions necessary for establishment, which means in practice that there is no solution for those construction companies other than to establish themselves in Portugal. Such a requirement seriously restricts freedom to provide services.

The requirements in relation to continuing to operate also amount to restrictions of the freedom to provide services, for they make it impossible to provide construction services of a temporary nature.

The reasons given by the Portuguese State in order to justify the restrictions in question have not been substantiated and cannot be taken into consideration.

20.12.2008

Official Journal of the European Union

C 327/19

Action brought on 21 October 2008 — Commission of the European Communities v Hellenic Republic

(Case C-460/08)

(2008/C 327/32)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and D. Triantafillou)

Defendant: Hellenic Republic

Form of order sought

—	declare that, by retaining in its legislation the requirement of Greek nationality for access to the posts of captain and officer (chief mate) on all vessels flying the Greek flag, the Hellenic Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Justification on the basis of Article 39(4) is lacking since no public powers are in fact usually exercised by captains and chief mates.

20.12.2008

Official Journal of the European Union

C 327/20

Action brought on 27 October 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-463/08)

(2008/C 327/33)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and M.A. Rabanal Suárez, acting as Agents

Defendant: Kingdom of Spain

Form of order sought

—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive;

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The time-limit laid down to transpose Directive 2005/36/EC expired on 20 October 2007.

(1) OJ 2005 L 225, p. 22.

20.12.2008

Official Journal of the European Union

C 327/20

Action brought on 27 October 2008 — Commission of the European Communities v Republic of Estonia

(Case C-464/08)

(2008/C 327/34)

Language of the case: Estonian

Parties

Applicant: Commission of the European Communities (represented by K. Simonsson and K. Saaremäel-Stoilov, acting as Agents)

Defendant: Republic of Estonia

Form of order sought

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (1), or in any event by failing to notify the Commission of the adoption of those measures, the Republic of Estonia has failed to fulfil its obligations under the directive;

—	order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 15 June 2007.

(1) OJ 2005 L 310, p. 28.

20.12.2008

Official Journal of the European Union

C 327/20

Action brought on 29 October 2008 — Commission of the European Communities v Hellenic Republic

(Case C-465/08)

(2008/C 327/35)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Karanasou-Apostolopoulou and H. Støvlbæk)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2005/36/EC into domestic law expired on 20 October 2007.

(1) OJ L 255 of 30.9.2005.

20.12.2008

Official Journal of the European Union

C 327/21

Action brought on 30 October 2008 — Commission of the European Communities v Republic of Cyprus

(Case C-466/08)

(2008/C 327/36)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Karanasou-Apostolopoulou and H. Støvlbæk)

Defendant: Republic of Cyprus

Form of order sought

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply fully with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and in any event by not notifying those provisions to the Commission, the Republic of Cyprus has failed to fulfil its obligations under that directive;

—	order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2005/36/EC into domestic law expired on 20 October 2007.

(1) OJ L 255 of 30.9.2005.

20.12.2008

Official Journal of the European Union

C 327/21

Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 23 October 2008 — Alstom Power Hydro v Valsts ieņēmumu dienests

(Case C-472/08)

(2008/C 327/37)

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: Alstom Power Hydro

Defendant: Valsts ieņēmumu dienests

Question referred

On a proper construction of Article 18(4) of Council Directive 77/388/EEC (1) of 17 May 1977, is it contrary to that provision for domestic legislation to lay down a limitation period of three years for the exercise of the right to recover sums of VAT overpaid (the difference between output tax and deductible input tax)?

(1) 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).

20.12.2008

Official Journal of the European Union

C 327/22

Judgment of the Court of First Instance of 5 November 2008 — Neoperl Servisys AG v OHIM (HONEYCOMB)

(Case T-256/06) (1)

(Community trade mark - Application for the Community word mark HONEYCOMB - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94)

(2008/C 327/39)

Language of the case: German

Parties

Applicant: Neoperl Servisys AG (Reinach, Switzerland) (represented by: H. Börjes-Pestalozza, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 July 2006 (Case R 1388/2005-4) concerning an application to register the word mark HONEYCOMB as a Community trade mark.

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders Neoperl Servisys AG to pay the costs.

(1) OJ C 261 of 28.10.2006.

20.12.2008

Official Journal of the European Union

C 327/22

Judgment of the Court of First Instance of 4 November 2008 — Group Lottuss Corp v OHIM — Ugly (COYOTE UGLY)

(Case T-161/07) (1)

(Community trade mark - Opposition procedure - Application for the figurative Community mark COYOTE UGLY - Earlier Community word mark COYOTE UGLY - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation(EC) No 40/94)

(2008/C 327/40)

Language of the case: Spanish

Parties

Applicant: Group Lottuss Corp., SL (Barcelona, Spain) (represented by: J. Grau Mora, A. Angulo Lafora, M. Ferrándiz Avendaño and J. Arribas García, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Ugly, Inc. (Cornwall, New York, United States) (represented by: S. Malynicz, barrister, M. Blair and C. Balme, solicitors)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 2 March 2007 (Joined Cases R 165/2006-2 and R 194/2006-2) concerning an opposition procedure between Ugly Inc. and Group Lottuss Corp., SL.

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders Group Lottuss Corp., SL to bear all its own costs, to pay four fifths of the costs of the Office for Harmonisation in the Internal Market(Trade Marks and Designs)(OHIM) and to pay four fifths of the costs of Ugly Inc.;

3.	orders Ugly Inc. to bear one fifth of its own costs and to pay one fifth of OHIM's costs.

(1) OJ C 155 of 7.7.2007.

20.12.2008

Official Journal of the European Union

C 327/23

Judgment of the Court of First Instance of 5 November 2008 — Calzaturificio Frau v OHIM — Camper (Representation of a stylised arch with the surface in solid colour)

(Case T-304/07) (1)

(Community trade mark - Opposition proceedings - Application for a Community figurative mark representing a stylised arch with the surface in solid colour - Earlier Community figurative mark representing a stylised arch - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 327/41)

Language of the case: Italian

Parties

Applicant: Calzaturificio SpA (San Giovanni Ilarione, Italy) (represented by: A. Rizzoli, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and L. Rampini, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Camper, SL (Inca, Spain) (represented by: I. Temiño Ceniceros, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 June 2007 in Case R 768/2006-1 relating to opposition proceedings between Camper, SL and Calzaturificio Frau SpA

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Calzaturificio Frau SpA to pay the costs.

(1) OJ C 235, 6.10.2007.

20.12.2008

Official Journal of the European Union

C 327/23

Judgment of the Court of First Instance of 11 November 2008 — Speiser v Parliament

(Case T-390/07 P) (1)

(Appeal - Staff case - Temporary staff - Admissibility - Expatriation allowance - Purely confirmatory decision - Complaint made out of time)

(2008/C 327/42)

Language of the case: German

Parties

Appellant: Michael Alexander Speiser (Neu-Isenburg, Germany) (represented by: F. Theumer, lawyer)

Other party to the proceedings: European Parliament (represented by: initially A. Lukošiūtė and N. Lorenz and subsequently A. Lukošiūtė and S. Seyr, acting as Agents)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 10 September 2007 in Case F-146/06 Speiser v Parliament, not yet published in the ECR, seeking to have that order set aside

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders each party to bear the costs incurred in the appeal proceedings.

(1) OJ C 297, 8.12.2007.

20.12.2008

Official Journal of the European Union

C 327/23

Order of the Court of First Instance of 25 September 2008 — Regione Siciliana v Commission

(Case T-363/03) (1)

(Action for annulment - ERDF - Cancellation of a financial contribution - Recovery of the sums already paid - Regional or local entity - Lack of direct effect - Inadmissibility)

(2008/C 327/43)

Language of the case: Italian

Parties

Applicant: Regione Siciliana (Italy) (represented by: A. Cingolo, lawyer)

Defendant: Commission of the European Communities (represented by: E. de March and L. Flynn, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

First, application for annulment of Commission Decision C(2003) 2890 final of 13 August 2003 concerning cancellation of the contribution from the European Regional Development Fund (ERDF) granted to the applicant by Commission Decision C(90) 2363 025 of 14 December 1990 in respect of an infrastructure project in Sicily and the recovery of the sums already paid by the Commission in connection with that contribution; secondly, application for annulment of Commission debit note No 3240504102 of 26 September 2003; and, thirdly, annulment of any other connected or prior measure

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Regione Siciliana is ordered to pay the costs.

(1) OJ C 304, 13.12.2003.

20.12.2008

Official Journal of the European Union

C 327/24

Order of the Court of First Instance of 12September 2008 — Stephens v Commission

(Case T-139/04) (1)

(Staff cases - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 327/44)

Language of the case: French

Parties

Applicant: Kelvin William Stephens (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, acting as Agents, assisted by B. Wägenbaur, lawyer)

Re:

First, application for annulment of the decision of the Commission of 14 April 2003 altering the applicant's classification in grade, in so far as it establishes his classification in step on recruitment as Grade A6, step 1, establishes 5 October 1995 as the date on which the decision takes financial effect and failed to reconstitute the applicant's career in grade and application for annulment of the decision rejecting the applicant's complaint; secondly, claim for compensation in respect of the alleged damage resulting from that decision

Operative part of the order

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

2.	The Commission is ordered to pay all of the costs.

(1) OJ C 168, 26.6.2004.

20.12.2008

Official Journal of the European Union

C 327/24

Order of the Court of First Instance of 29 September 2008 — Powderject Research v OHIM (POWDERMED)

(Case T-166/06) (1)

(Community trade mark - Application for the Community word mark POWDERMED - Absolute ground for refusal - Descriptiveness - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2008/C 327/45)

Language of the case: English

Parties

Applicant: Powderject Research Ltd (Oxford, United Kingdom) (represented by: A. Bryson, Barrister, and P. Brownlow, Solicitor)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 12 April 2006 (Case R 1189/2005-2) concerning an application for registration of the word sign POWDERMED as a Community trade mark.

Operative part of the order

1.	The action is dismissed.

2.	Powderject Research Ltd shall pay the costs.

(1) OJ C 190, 12.8.2006.

20.12.2008

Official Journal of the European Union

C 327/25

Order of the Court of First Instance of 6 October 2008 — Austrian Relief Programm v Commission

(Case T-235/06) (1)

(Application for annulment - Community financing of a project for the improvement of living standards to promote the return of refugees and displaced persons - Arbitration clause - Debit note - Inadmissible)

(2008/C 327/46)

Language of the case: German

Parties

Applicant: Austrian Relief Program — Verein für Not- und Katastrophenhilfe (Innsbruck, Austria) (represented by: C. Leyroutz, lawyer)

Defendant: Commission of the European Communities (represented by: M. Šimdová, agents, assisted by R. Bierwagen, lawyer)

Re:

Application for annulment of the debit note of 4 May 2006 by which the Commission sought repayment from the applicant of sums paid in performance of the contract concerning Community financing of the project ‘Republika Srpska 1998: Improvement of living standards to promote the return of refugees and displaced persons’ (Contract RE/YOU/03/04/98), concluded within framework of the Obnova programme.

Operative part of the order

1.	The application is dismissed;

2.	Austrian Relief Program — Verein für Not- und Katastrophenhilfe is ordered t pay the costs.

(1) OJ C 261, 28.10.2006.

20.12.2008

Official Journal of the European Union

C 327/25

Order of the Court of First Instance of 20 October 2008 — BOT Elektrownia Bełchatów and Others v Commission

(Case T-208/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 327/47)

Language of the case: English

Parties

Applicants: BOT Elektrownia Bełchatów S.A. (Rogowiec, Poland); BOT Elektrownia Turów S.A. (Bogatynia, Poland); BOT Elektrownia Opole S.A. (Brzezie, Poland); Elektrownia ‘Kozienice’ S.A. (Świerże Górne, Poland); Elektrownia Połaniec S.A. — Grupa Electrabel Polska (Połaniec, Poland); Elektrownia ‘Rybnik’ S.A. (Rybnik, Poland); Elektrownia Skawina S.A. (Skawina, Poland); Elektrownia ‘Stalowa Wola’ S.A. (Stalowa Wola, Poland); Południowy Koncern Energetyczny S.A. (Katowice, Poland); Zespół Elektrowni Dolna Odra S.A. (Nowe Czarnowo, Poland); Zespół Elektrowni Ostrołęka S.A. (Ostrołęka, Poland); and Zespół Elektrowni Pątnów-Adamów-Konin S.A. (Konin, Poland) (represented by: B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker and D. Lawunmi, Agents)

Interveners in support of the applicants: Elektrociepłownia ‘Będzin’ S.A. (Będzin, Poland); Zespół Elektrociepłowni Bydgoszcz S.A. (Bydgoszcz, Poland); Zespół Elektrociepłowni Bytom S.A. (Bytom, Poland); Elektrociepłownia Białystok S.A. (Białystok, Poland); Elektrociepłownia ‘Gorzów S.A.’ (Gorzów, Poland); Elektrociepłownia Kalisz-Piwonice S.A. (Kalisz, Poland); Elektrociepłownia ‘Kraków’ S.A. (Krakow, Poland); Dalkia Łódź S.A. (Łódź, Poland); Dalkia Poznań Zespół Elektrociepłowni S.A. (Poznań, Poland); Elektrociepłownia Tychy S.A. (Tychy, Poland); Zespół Elektrociepłowni Wrocławskich Kogeneracja S.A. (Wrocław, Poland); Elektrociepłownie Wybrzeże S.A. (Gdańsk, Poland); Elektrociepłownia Zabrze S.A. (Zabrze, Poland); and Elektrociepłownia ‘Zielona Góra’ S.A. (Zielona Góra, Poland) (represented by: B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo and S. Boullart, lawyers)

Re:

Application for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part of the order

1.	The action is dismissed as inadmissible.

BOT Elektrownia Bełchatów S.A., BOT Elektrownia Turów S.A., BOT Elektrownia Opole S.A., Elektrownia ‘Kozienice’ S.A., Elektrownia Połaniec S.A. — Grupa Electrabel Polska, Elektrownia ‘Rybnik’ S.A., Elektrownia Skawina S.A., Elektrownia ‘Stalowa Wola’ S.A., Południowy Koncern Energetyczny S.A., Zespół Elektrowni Dolna Odra S.A., Zespół Elektrowni Ostrołęka S.A. and Zespół Elektrowni Pątnów-Adamów-Konin S.A. shall bear their own costs and pay those incurred by the Commission.

Elektrociepłownia ‘Będzin’ S.A., Zespół Elektrociepłowni Bydgoszcz S.A., Zespół Elektrociepłowni Bytom S.A., Elektrociepłownia Białystok S.A., Elektrociepłownia ‘Gorzów S.A.’, Elektrociepłownia Kalisz-Piwonice S.A., Elektrociepłownia ‘Kraków’ S.A., Dalkia Łódź S.A., Dalkia Poznań Zespół Elektrociepłowni S.A., Elektrociepłownia Tychy S.A., Zespół Elektrociepłowni Wrocławskich Kogeneracja S.A., Elektrociepłownie Wybrzeże S.A., Elektrociepłownia Zabrze S.A. and Elektrociepłownia ‘Zielona Góra’ S.A. shall bear their own costs.

(1) OJ C 183, 4.8.2007.

20.12.2008

Official Journal of the European Union

C 327/26

Order of the President of the Court of First Instance of 30 October 2008 — France v Commission

(Case T-257/07 R II)

(Application for interim measures - Health measures - Regulation (EC) No 999/2001 - Eradication of certain transmissible spongiform encephalopathies - Regulation (EC) No 746/2008 - Application for suspension of operation - Prima facie case - Urgency - Balancing of interests)

(2008/C 327/48)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, R. Loosli-Surrans, A.-L. During and G. de Bergues, acting as Agents)

Defendant: Commission of the European Communities (represented by: M. Nolin and A. Bordes, acting as Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by: C. Gibbs and I. Rao, later by I. Rao, acting as Agents, assisted by T. Ward, barrister)

Re:

Application for suspension of the operation of Commission Regulation (EC) No 746/2008 of 17 June 2008 amending Annexe VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2008 L 202, p. 11), in so far as it introduces, into Chapter A of Annex VII point 2.3(b)(iii), point 2.3(d) and point 4

Operative part of the order

The Annex to Commission Regulation (EC) No 746/2008 of 17 June 2008 amending Annexe VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies is suspended until judgment has been given in the main action in so far as it introduces, into Chapter A of Annex VII to Regulation (EC) No 999/2001 of 22 May 2001 point 2.3(b)(iii), point 2.3(d) and point 4;

2.	Costs are reserved.

20.12.2008

Official Journal of the European Union

C 327/26

Order of the President of the Court of First Instance of 18 March 2008 — Aer Lingus Group v Commission

(Case T-411/07 R)

(Interim measures - Control of concentrations - Decision declaring a concentration to be incompatible with the common market - Article 8(4) and (5) of Regulation (EC) No 139/2004 - Application for suspension of operation and for interim relief - Measure incompatible with the distribution of powers between institutions - Powers of the Commission - Interim measures addressed to an intervener - Application for suspension of operation - Admissibility - No prima facie case - Lack of urgency - Absence of serious and irreparable damage - Damage dependent on future, uncertain events - Insufficient reasons - Weighing of all the interests involved)

(2008/C 327/49)

Language of the case: English

Parties

Applicant: Aer Lingus Group plc (Dublin, Ireland) (represented by: A. Burnside, Solicitor, and B. van de Walle de Ghelcke and T. Snels, lawyers)

Defendant: Commission of the European Communities (represented by: X. Lewis, É. Gippini Fournier and S. Noë, acting as Agents)

Intervener in support of the defendant: Ryanair Holdings plc (Dublin, Ireland) (represented by: J. Swift, QC, V. Power, A. McCarthy and D. Hull, Solicitors, and G. Berrisch, lawyer)

Re:

Application for interim measures seeking, first, an order requiring the Commission to adopt certain measures concerning Ryanair Holdings plc's shareholding in the applicant, second, alternatively, any order to similar effect against the Commission or Ryanair Holdings plc, and, third, suspension of the operation of Commission Decision C(2007) 4600 final of 11 October 2007 rejecting the applicant's request that proceedings be opened under Article 8(4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and that interim measures be adopted under Article 8(5) of that regulation.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

20.12.2008

Official Journal of the European Union

C 327/27

Order of the Court of First Instance of 20 October 2008 — Imperial Chemical Industries v OHIM (FACTORY FINISH)

(Case T-487/07) (1)

(Procedural issue - Community trade mark - Representation by a lawyer)

(2008/C 327/50)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries plc (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Re:

Application under Article 114 of the Rules of Procedure of the Court of First Instance for W. Johnston to be allowed to act as representative of the applicant in the present case.

Operative part of the order

1.	The application for the Court of First Instance to allow W. Johnston to act as representative of Imperial Chemical Industries plc is rejected.

2.	Costs are reserved.

(1) OJ C 51, 23.2.2008.

20.12.2008

Official Journal of the European Union

C 327/27

Order of the Court of First Instance of 24 September 2008 — Van Neyghem v Commission

(Case T-105/08 P) (1)

(Appeal - Staff cases - Dismissal of the action at first instance - Recruitment - Open competition - Non-admission to the oral tests - Appeal manifestly unfounded)

(2008/C 327/51)

Language of the case: French

Parties

Appellant: Kris Van Neyghem (Vissenaken, 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 B. Eggers, Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-73/06 Van Neyghem v Commission [2007], not yet published in the ECR, seeking annulment of that judgment.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Kris Van Neyghem is ordered to bear his own costs and to pay those incurred by the Commission in the context of the appeal.

(1) OJ C 107, 26.4.2008.

20.12.2008

Official Journal of the European Union

C 327/28

Order of the President of the Court of First Instance of 17 September 2008 — Melli Bank v Council

(Case T-332/08 R)

(Applications for interim measures - Regulation (EC) No 423/2007 - Restrictive measures against the Islamic Republic of Iran - Council decision - Measure to freeze funds and economic resources - Application for suspension of operation of a measure - No urgency - Absence of serious and irreparable damage)

(2008/C 327/52)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom) (represented by: R. Gordon, QC, M. Hoskins, Barrister, T. Din, S. Gadhia and D. Murray, Solicitors)

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

Re:

Application for suspension of the application of paragraph 4, section 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 Melli Bank plc is included in the list of legal persons, entities and bodies whose funds and economic resources are frozen.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

20.12.2008

Official Journal of the European Union

C 327/28

Order of the President of the Court of First Instance of 15 October 2008 — Bank Melli Iran v Council

(Case T-390/08 R)

(2008/C 327/53)

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, acting as Agents)

Re:

Application for suspension of the application of paragraph 4, section 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 Bank Melli Iran is included in the list of legal persons, entities and bodies whose funds and economic resources are frozen.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

20.12.2008

Official Journal of the European Union

C 327/28

Appeal brought on 10 September 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission

(Case T-377/08 P)

(2008/C 327/54)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by J. Currall and B. Eggers)

Other party to the proceedings: Gerhard Birkhoff (Weitnau, Germany)

Form of order sought by the appellant

—	Set aside the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission;

—	order Mr Birkhoff to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal.

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 annulling the decision of the Settlements Office, in the form of a decision on a complaint, not to reimburse the costs of acquiring a new wheelchair two years after the last acquisition, on the grounds of lack of necessity.

The appellant submits in support of its appeal that, first, contrary to the applicable provisions of Community law, the judgment redefines the margin of discretion of the Medical Officer and of the Medical Council in that, according to the judgment, only independent medical bodies may have such a margin of discretion.

Second, the judgment disavows any significance in the opinions of the Medical Council — which, in practice, are important in the examination of the necessity of costs — by stating that it is merely an advisory body whose opinions are not published. This is contrary to settled case-law on the Joint Rules on sickness insurance for officials of the European Communities, as applicable on 22 March 2004. Furthermore, those opinions have the status of a rebuttable presumption in relation to the necessity of costs.

In addition, the appellant alleges a distortion of the facts or errors in the legal characterisation of the facts and of the subject-matter of the dispute, and an infringement of the obligation to state the reasons for the judgment, since an essential part of the decision on the complaint was declared to be non-existent.

20.12.2008

Official Journal of the European Union

C 327/29

Action brought on 15 September 2008 — Ellinika Nafpigia v Commission

(Case T-391/08)

(2008/C 327/55)

Language of the case: Greek

Parties

Applicant: Ellinika Nafpigia (Skaramagkas, Greece) (represented by: I. Drosos, K. Loukopoulos, A. Khiotellis, K. Panagoulea, P. Tzioumas, A. Balla, B. Voutsakis and X. Gkousta, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul Articles 1(2), 2, 3, 5, 6, 8(2), 9, 11 to 16, 18 and 19 of the contested decision of 2 July 2008 concerning Aid C 16/2004 (formerly NN 29/2004, CP 71/2002 and CP 133/2005) granted by Greece to the undertaking Ellinika Nafpigia A.E.;

—	order the Commission to pay the applicant's costs in the present proceedings.

Pleas in law and main arguments

The applicant, Ellinika Nafpigia A.E (Hellenic Shipyards; ‘ENAE’), challenges 12 of the 16 measures imposed in Commission Decision C(2008) 3118 final of 2 July 2008 concerning Aid C 16/2004 (formerly NN 29/2004, CP 71/2002 and CP 133/2005), and puts forward nine pleas in law in support of its claim for annulment.

By its first plea, the applicant submits that the Commission did not apply Article 298 EC notwithstanding the acceptance in the contested decision that ENAE is a military shipyard.

By its second plea, the applicant contends that the contested decision failed to apply, or misapplied, Article 296 EC.

By its third plea, the applicant asserts that the contested decision contains a manifest error of assessment, or otherwise an insufficient statement of reasons, in finding that ENAE's creditworthiness standing was reduced from 1997 to June 1999 and thereafter non-existent. In particular, the contested decision (a) did not assess ENAE's creditworthiness in relation to the specific feature that it is a military industrial unit, (b) disputed without justification ENAE's economic parameters and also the entirely acceptable guarantees which it was in a position to provide in order to be financed by any private bank and (c) ignored without justification and misappraised the interest of Elliniki Trapeza Viomikhanikis Anaptixis (Hellenic Industrial Development Bank; ‘ETVA’) as majority shareholder in ENAE, in the value of, and return from, that commercial stake held by it.

By its fourth plea, relating to the wrongful implementation of the aid which took the form of the writing-off of debts of EUR 160 million, the applicant submits that approval decision C 10/1994 did not lay down conditions and was not wrongly implemented, and in the alternative that ENAE was not granted the whole of the foregoing amount and, therefore, that sums not granted cannot be recovered. The applicant further submits that Article 296 EC must be applied both when assessing the possible existence of aid and when calculating any recoverable benefit. Finally, recovery of the aid infringes the principle of proportionality, the principle of legal certainty and the principle that the legitimate expectations of a recipient of aid should be protected.

By its fifth plea, relating to wrongful implementation of the aid approved in 2002 of EUR 29,5 million for the closure of facilities, by reason of a supposed failure to observe the countervailing condition restricting the applicant's repair capacity, the applicant submits that approval decision N 513/2001 was misapplied.

By its sixth and seventh pleas, relating to wrongful implementation of the investment aid of EUR 22,9 million and the alleged unlawful participation of ETVA in the increases in share capital to bring about that investment, the applicant submits that approval decision N 401/1997 was misapplied, that Article 87(1) EC was infringed as the Commission wrongly found that measure E10 constituted unlawful State aid, that the principle of the protection of legitimate expectations was infringed and that Article 296 EC was not applied.

By its eighth plea, relating to the loans and guarantees which the applicant received in the relevant period of 1997 to 2001 — which is in addition to the third plea which applies to the loans and guarantees as regards the misappraisal of the applicant's creditworthiness — the applicant pleads: (a) misapplication of the test of a private investor in a market economy; (b) misapplication of Article 87(2) EC, Article 3 of Regulation (EC) No 1540/1998 (1) and Article 4 of Directive 90/684/EEC (2); (c) infringement of the principle of proportionality and manifest error of assessment as regards ENAE's creditworthiness after its complete privatisation in June 2002, in relation to calculation of the amounts to be recovered in respect of the measures under examination, since the contested decision did not reduce the applicable reference interest rate; and (d) a mistake of fact in relation to the loans and guarantees which ETVA granted the applicant, since the contested decision did not take into account that following ETVA's privatisation the measures under examination did not include elements of State aid.

By its ninth plea, relating to unlawful financing of ENAE's non-military business by its military business, the applicant pleads: (a) infringement of Articles 296, 298 and 88(1) EC; (b) misapplication of the private investor test with regard to military contracts and (c) a failure to state reasons and misappraisal as regards determination of the sums to be recovered.

(1) Council Regulation (EC) No 1540/98 of 29 June 1998 establishing new rules on aid to shipbuilding (OJ 1998 L 202, p. 1).

(2) Council Directive 90/684/EEC of 21 December 1990 on aid to shipbuilding (OJ 1990 L 380, p. 27).

20.12.2008

Official Journal of the European Union

C 327/30

Action brought on 15 September 2008 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission

(Case T-396/08)

(2008/C 327/56)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (represented by: T. Müller-Ibold and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the first paragraph of Article 1 of Commission Decision C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007; and

—	order the Commission to pay the costs.

Pleas in law and main arguments

This application for annulment relates to Commission Decision C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007, in so far as a large part of the training aid notified, which the Freistaat Sachsen and the Land Sachsen-Anhalt intended to grant to the express courier services company, DHL, is declared to be incompatible with the common market.

In particular, the Freistaat Sachsen and the Land Sachsen-Anhalt rely on the following pleas in law in support of their claims.

First, the applicants object to the Commission's refusal to approve a large part of the notified aid, since the training aid is not ‘necessary’ for the training measures in question to be implemented. By introducing a general test of necessity in individual cases as a prerequisite for approval of the notified aid, the Commission contravenes the binding effect of Regulation (EC) No 68/2001 (1) and infringes the principles of equal treatment and the protection of legitimate expectations. The assessment criteria laid down by the Regulation are binding also in respect of aid above the exemption threshold.

Second, the Commission's approach, which makes approval of the notified training aid dependent on its necessity, is also wrong in law because it unlawfully ignores the positive market externalities of the training measures supported by the notified training aid. Such market externalities are in themselves sufficient to justify the compatibility of the notified training aid with the common market.

Third, the Commission wrongly concludes that the necessary incentive effect of the aid for the chosen location is lacking. In fact the training aid is necessary because it was a contributory factor in DHL's decision on Leipzig/Halle as its choice of location and DHL would not otherwise have undertaken any training there. Moreover, the Commission's assertion that comparable training costs would also have arisen in alternative locations is unfounded.

Fourth, the Commission relied on inappropriate criteria in its assessment of necessity. In particular, the Commission relies on subjective criteria, which go beyond objective necessity. Moreover, the Commission carries out its assessment on the basis of statutory provisions on training measures, which significantly disadvantages those Member States in which training content is regulated by law.

Fifth, the contested decision lacks adequate reasoning.

(1) Commission Regulation (EC) No 68/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to training aid (OJ 2001 L 10, p. 20); amended by Regulation (EC) No 363/2004 (OJ 2004 L 63, p. 20) and Regulation (EC) No 1976/2006 (OJ 2006 L 363, p. 85).

20.12.2008

Official Journal of the European Union

C 327/31

Action brought on 22 September 2008 — MIP Metro v OHIM — CBT Comunicación Multimedia (Metromeet)

(Case T-407/08)

(2008/C 327/57)

Language in which the application was lodged: German

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Dusseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, 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: CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

—	Annul the decision of the First Board of Appeal of OHIM of 12 June 2008 in Case R 387/2007-1 as it is incompatible with Article 8(1)(b) of Regulation No 40/94 on the Community trade mark and refuse application No 37 405 29 for the Community trade mark ‘metromeet’;

—	Order OHIM to pay the costs of the proceedings, including those of the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: CBT Comunicación Multimedia, SL

Community trade mark concerned: Figurative mark ‘Metromeet’ for goods and services in Classes 9, 16, 35 and 41 — Application No 3 740 529

Proprietor of the mark or sign cited in the opposition proceedings: MIP Metro

Mark or sign cited in opposition: The national figurative mark ‘METRO’ and the word mark ‘meeting metro’ for goods and services in Classes 9, 16, 35 and 41

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 in that there is a likelihood of confusion between the marks at issue.

20.12.2008

Official Journal of the European Union

C 327/31

Action brought on 30 September 2008 — Sacem v Commission

(Case T-422/08)

(2008/C 327/58)

Language of the case: French

Parties

Applicant: Société des auteurs, compositeurs et éditeurs de musique (Sacem) (Neuilly-sur-Seine, France) (represented by: H. Calvet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 — CISAC in so far as it (i) finds, in Article 1, that the applicant had infringed Article 81 of the EC Treaty and Article 53 of the EEA Agreement by using, in its reciprocal representation agreements, the membership restrictions which were contained in Article 11(II) of the CISAC model contract, or by de facto applying those membership restrictions, and (ii) orders it, as a result, in Article 4.1, to bring that infringement immediately to an end, insofar as it has not already done so, and to communicate to the Commission all the measures it has taken for that purpose;

—

annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 — CISAC in so far as it (i) finds, in Article 3, that the applicant infringed Article 81 of the EC Treaty and Article 53 of the EEA Agreement by coordinating the territorial delineations in a way which limits a licence to the domestic territory of each collecting society and (ii) orders it, as a result, in Article 4.2, within 120 days of the date of notification of this decision, to bring to an end the infringement and, within that period of time, to communicate to the Commission all the measures it has taken for that purpose;

—	annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 — CISAC in so far as it orders the applicant to refrain from repeating any act or conduct described in Articles 1 and 3, and from any act or conduct having the same, or similar, object or effect.

—	order the defendant to pay the costs.

Pleas in law and main arguments

In this case, the applicant seeks partial annulment of the Commission's decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC) concerning concerted practices on the conditions of management and licensing of authors' public performance rights of musical works by collecting societies, in the form of membership restrictions applied in the reciprocal representation agreements, as laid down by the model contract of the International Confederation of Societies of Authors and Composers (CISAC model contract) or as applied in practice.

In support of its application, the applicant submits, first of all, that the Commission infringed its rights of the defence and essential procedural requirements:

—

by accusing the applicant, in the contested decision, of participation in an alleged concerted practice while the statement of objections sent to the applicant was based on the theory of network effects; the applicant was therefore not in a position to defend itself over its participation in an alleged concerted practice;

—

by failing to provide reasons for maintaining against the applicant the complaints relating to the membership restrictions which were contained in the reciprocal representation agreements entered into between European societies of authors or applied de facto by those societies, whereas the applicant showed that it had removed those clauses and was not applying them;

—	by failing to provide a definition of the activity which was the subject of the contested decision, as regards the infringement relating to an alleged concerted practice and therefore the scope of the decision's directions.

Secondly, the applicant claims that the Commission infringed Article 81 EC and Article 53 of the EEA Agreement:

—	by accusing the applicant of an infringement by way of the membership clause whereas the applicant showed that it had removed those clauses and was not applying them;

—

by committing a manifest error of assessment as regards satellite radio broadcasting, since the societies of authors were each mandated to grant the satellite radio broadcasting operators a multi-territorial authorisation covering the entire footprint of the satellite used to broadcast their programmes;

—	by using an inaccurate market definition;

—	by accusing the applicant of participation in an alleged concerted practice without providing evidence of it;

—	by concluding that there was a concerted practice whereas the alleged concerted behaviour between societies of authors could not have limited competition;

—

by ordering the societies of authors to refrain from ‘any act or conduct having the same, or similar, object or effect’ to the alleged concerted practices which led to the territorial limitations contained in the reciprocal representation agreements while asserting that each society was free to determine bilaterally the scope of the reciprocal representation agreements entered into by them, on the ground that those contradictions undermine legal certainty.

20.12.2008

Official Journal of the European Union

C 327/32

Action brought on 30 September 2008 — KODA v Commission

(Case T-425/08)

(2008/C 327/59)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark) (represented by: K. Dyrekjær and J. Borum)

Defendant: Commission of the European Communities

Forms of order sought

—	Annul Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety, or

—	in the alternative, annul Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety in so far as it concerns KODA, or

—	annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008, or

—	in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in so far as it concerns KODA, or

—	in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in so far as it concerns transmission by cable, and

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case is seeking annulment of Commission Decision C(2008) 3435 final of 16 July 2008 in Case COMP/C2/38.698 — CISAC, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 EEA through its reciprocal representation agreements or in practice had introduced membership restrictions (Article 1) and exclusivity clauses (Article 2) and, by having concerted territorial restrictions in such a manner as to limit a licence to each collecting society's national territory through the licensing of rights to public transmission of music over the Internet, via satellite and cable (Article 3).

In support of its claims, the applicant has put forward the following:

—	the contested decision is vitiated by an essential procedural defect in that the statement of objections differs from the final decision on a central point;

—

the contested decision is based on an incorrect application of the law, in that: (i) it has not been established that the applicant's inclusion of territorial restrictions in its reciprocal agreements for the Internet, satellite or cable are the result of a concerted practice with the other EEA collecting societies, and (ii) the territorial restrictions are not anti-competitive.

In the alternative, the applicant submits that no infringement has been demonstrated in the contested decision in so far as regards the licensing of rights via cable transmission.

20.12.2008

Official Journal of the European Union

C 327/33

Action brought on 1 October 2008 — AKM v Commission

(Case T-432/08)

(2008/C 327/60)

Language of the case: German

Parties

Applicant: Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger reg. Gen. mbH (AKM) (Vienna, Austria) (represented by: H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the Commission's decision, in so far as it relates to AKM, pursuant to the first paragraph of Article 231 EC;

—	order the defendant to pay the costs pursuant to Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The application concerns Commission Decision C(2008) 3435 final of 16 July 2008 in Case COMP/C2/38.698 — CISAC, in which the Commission found concerted practices in connection with the reciprocal grant of music copyright between collecting societies which are members of the International Confederation of Societies of Authors and Composers (‘CISAC’) to be incompatible with Article 81 EC and Article 53 of the EEA Agreement.

The applicant seeks the annulment of the decision in so far as the Commission found that AKM infringed Article 81 EC and Article 53 EEA by using in its reciprocal representation agreements the membership restrictions contained in Article 11(2) of the CISAC model contract or by de facto applying membership restrictions, and by coordinating the territorial restriction of licences, and in so far as AKM was directed to bring those infringements to an end.

The applicant relies on the following pleas in law in support of its claims:

The applicant submits, first, that the Commission erred in its findings of fact as regards the application of membership restrictions by AKM. The Commission did not produce any evidence to prove that AKM actually applied such a restriction. On the contrary, the Commission failed to take into consideration evidence of the fact that AKM operates an ‘open membership policy’. In addition, the Commission overlooked the fact that the previously applicable membership clauses in AKM's reciprocal representation agreements were, at least tacitly, dispensed with and are no longer included in reciprocal representation agreements entered into by AKM.

Furthermore, Article 3 of the Commission's decision, in which the Commission accuses AKM of ‘[infringing] Article 81 of the Treaty and Article 53 of the EEA Agreement by coordinating the territorial delineations in a way which limits a licence to the domestic territory of each collecting society’, is inconsistent with the reasons for the decision. In particular, the operative part of the decision is not limited to the means of transmission (satellite, internet and cable) which the Commission dealt with in its considerations.

Moreover, the existing territorial delineations of licences in AKM's reciprocal representation agreements are not the product of a concerted practice. Essentially, the Commission relied solely on the fact that the reciprocal representation agreements of European collecting societies follow a standard system as proof of the existence of an intentional concerted practice. The explanation for this parallel conduct can, however, readily be found in the traditional market structures and the statutory framework for the activities of collecting societies.

Finally, the Commission's decision infringes the principle of legality, since it is not clear from Article 4(2) of the decision what is meant by the requirement to ‘review’ certain contractual provisions.

20.12.2008

Official Journal of the European Union

C 327/34

Action brought on 30 September 2008 — Agapiou Joséphidès v Commission and Education, Audiovisual and Culture Executive Agency

(Case T-439/08)

(2008/C 327/61)

Language of the case: French

Parties

Applicant: Kalliope Agapiou Joséphidès (Nicosia, Cyprus) (represented by: C. Joséphidès, lawyer)

Defendants: Commission of the European Communities and Education, Audiovisual and Culture Executive Agency

Form of order sought

—

annul the decision of the Education, Audiovisual and Culture Executive Agency (‘the Agency’) of 1 August 2008, by which the Agency, acting under the Commission's supervision, denied the applicant access, requested by her letter of 3 March 2008, to certain documents in file No 07/0122 relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus;

—	annul Commission Decision C(2007) 3749 of 8 August 2008 relating to the individual decision to award subsidies within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme;

—	order the Agency and the Commission to pay the applicant's costs in these proceedings.

Pleas in law and main arguments

By this action, the applicant seeks the annulment, first, of the decision of the Education, Audiovisual and Culture Executive Agency of 1 August 2008 denying her access to documents relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus and, second, of Commission Decision C(2007) 3749 of 8 August 2008 relating to an individual decision to award subsidies within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme, to the extent that it recommends the award of a subsidy to the University of Cyprus for the creation of a Jean Monnet Centre of Excellence.

In support of her application for annulment of the decision of the Agency of 1 August 2008, she claims that the Agency infringed her personal right, as derived, in particular, from the principle of transparency contained in Article 1, second paragraph, and Article 6 TEU, Article 255 EC and the EU Charter of Fundamental Rights, to have access to certain documents in so far as her name was used by third parties (the University of Cyprus) in an administrative application file, with the aim of deriving benefit from it without her consent. She claims that in those circumstances, she is entitled to verify the precise content and/or the accuracy of the personal data and the aim and context of its use.

In addition, she submits that the Director of the Agency is not competent to decide on her confirmatory application for access to the documents and that its decision of 1 August 2008 was taken in violation of Regulation No 1049/2001 (1) and the Commission Rules of Procedure.

None the less, if the Court of First Instance were to consider that the Director of the Agency was competent to adopt the contested decision, the applicant claims that that decision was taken in violation of several provisions of Regulation No 1049/2001, in particular Articles 7(1), 8(1) and 15(1). According to the applicant, the Agency also misinterpreted several other provisions of the same regulation, in particular Articles 4(4), 4(5), 4(1)(b) and 4(2) and misapplied the principle of transparency and the concept of overriding public interest. The applicant also puts forward a plea alleging that the contested decision is insufficiently reasoned.

In support of her application for annulment of Commission Decision C(2007) 3749 of 8 August 2008, the applicant claims that the Commission erred in failing to verify whether the applicant had consented to her personal data appearing in the application form submitted to the Commission by the University of Cyprus. She takes the view that the Commission ought to have found a substantial irregularity in the draft submitted and revoked its decision or taken other necessary measures.

The applicant also submits that the Commission erred in its analysis of the eligibility criteria in respect of the application submitted by the University of Cyprus.

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

20.12.2008

Official Journal of the European Union

C 327/34

Action brought on 1 October 2008 — 1-2-3.TV v OHIM — Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion (1-2-3.TV)

(Case T-440/08)

(2008/C 327/62)

Language in which the application was lodged: German

Parties

Applicant: 1-2-3.TV GmbH (Unterföhring, Germany) (represented by: V. von Bomhard, A. Renck, T. Dolde und E. Nicolás Gómez, lawyers)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Zweites Deutsches Fernsehen (Mainz, Germany) and Televersal Film- und Fernseh-Produktion GmbH (Hamburg, Germany)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 (Case R 1076/2007-1); and

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘1-2-3.TV’ for services in classes 35, 38 and 41 — Application No 3 763 133

Proprietor of the mark or sign cited in the opposition proceedings: Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion GmbH

Mark or sign cited in opposition: National figurative mark ‘1, 2 ODER 3 ZDF-ORF-SFDRS’ for goods and services in classes 3, 5, 9, 12, 14, 16, 18, 21, 24, 25, 26, 27, 28, 29, 30, 32, 35, 38, 41 and 42

Decision of the Opposition Division: Opposition partly upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, there being no likelihood of confusion between the marks in opposition on account of the differing overall impression of the marks.

20.12.2008

Official Journal of the European Union

C 327/35

Action brought on 6 October 2008 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission

(Case T-443/08)

(2008/C 327/63)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (represented by: U. Soltész, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

Annul Article 1 of the Commission's decision of 23 July 2008 pursuant to the first paragraph of Article 231 EC in so far as the Commission finds that

(a)	the measure adopted by Germany in respect of capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig/Halle airport constitutes State aid for the purposes of Article 87(1) EC; and

(b)	this ‘State aid’ amounts to EUR 350 million;

—	order the Commission to pay the applicants' costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicants object to the findings in the first part of Article 1 of Commission Decision C (2008) 3512 final of 23 July 2008 Measure No C48/2006 (ex N227/2006) Germany DHL and Leipzig Halle Airport that the capital contributions granted by Germany to Leipzig/Halle airport represent State aid to the airport and that that aid amounts to EUR 350 million.

The applicants rely on seven pleas in law in support of their claims:

First, the applicants submit that the rules on State aid are not even applicable because the airport is not an undertaking within the meaning of those rules, so far as the expansion of regional airport infrastructure is concerned.

Second, Flughafen Leipzig/Halle GmbH is a State-owned single purpose vehicle with an organisational structure governed by private law which, accordingly, as is generally acknowledged, cannot be deemed to be a recipient of aid in so far as the State provides it with the resources required in order to perform its functions.

Third, the contested decision is inherently contradictory, in that Flughafen Leipzig/Halle GmbH is simultaneously treated in the decision both as recipient and donor of aid.

Fourth, the application of the guidelines published in 2005 (1) to facts which obtained before the guidelines were published is contrary to the prohibition on retroactivity, the requirement of legal certainty, the protection of legitimate expectations and the principle of equality. In the applicant's view, only the Commission's 1994 guidelines (2) were applicable.

In addition, the applicants state that the new guidelines are contrary to primary Community law, being factually inapplicable and inherently contradictory where regional airport operators do not have the status of an undertaking. The 2005 guidelines also made the construction of airports subject to the rules on aid, whereas, in the previous guidelines of 1994, this activity was expressly excluded from the application of the State aid rules. In view of the diametrically opposed content of the old and the new guidelines, and the non-revocation of the 1994 provisions, it is unclear how the financing of airport infrastructure is intended to be legally assessed.

Sixth, the applicants submit that the Commission has committed a breach of procedure since it failed to apply the provisions of Regulation No 659/1999 (3) on existing aid to the capital contributions which it deemed to be aid.

Seventh, the 2005 guidelines also circumvent the division of powers between the Member States and the Commission, since the Commission is extending its powers beyond the framework laid down in the EC Treaty by adopting an expanded interpretation of the essential criterion of ‘undertaking’ in Article 87(1) EC and, as a result of this expanded interpretation, making procedures which are within the administrative competence of national authorities subject to review by the Community institutions.

(1) Communication from the Commission — Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ 2005 C 312, p. 1.

(2) Communication from the Commission — Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector, OJ 1994 C 350, p. 7.

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

20.12.2008

Official Journal of the European Union

C 327/36

Action brought on 2 October 2008 — S.L.V. Elektronik v OHIM — Jiménez Muñoz (LINE)

(Case T-449/08)

(2008/C 327/64)

Language in which the application was lodged: German

Parties

Applicant: S.L.V. Elektronik GmbH (Übach-Palenberg, Germany) (represented by: C. König, 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: Angel Jiménez Muñoz (Gelida, Spain)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 18 July 2008 in Case R 759/2007-4 in so far as registration of the trade mark applied for (003316908) is refused in respect of ‘mains-operated lights, lighting apparatus and installations, stage effects lighting apparatus; electric lamps; individual parts for the aforesaid goods’; and order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings before the Court of First Instance.

Pleas in law and main arguments

Applicant for a Community trade mark: S.L.V. Elektronik GmbH

Community trade mark concerned: Figurative mark ‘LINE’ for goods in class 11 — registration No 3 316 908

Proprietor of the mark or sign cited in the opposition proceedings: Angel Jiménez Muñoz

Mark or sign cited in opposition: National figurative and word marks ‘Line’ for goods and services in classes 9, 35, 37 and 38

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Annulment in part of the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, as there is no likelihood of confusion between the marks in opposition. Furthermore, the Board of Appeal did not proceed on the basis of the trade mark applied for but on the basis of a design that was not identical.

20.12.2008

Official Journal of the European Union

C 327/36

Action brought on 6 October 2008 — Mitteldeutsche Flughafen and Flughafen Leipzig/Halle v Commission

(Case T-455/08)

(2008/C 327/65)

Language of the case: German

Parties

Applicants: Mitteldeutsche Flughafen AG (Leipzig, Germany), Flughafen Leipzig/Halle GmbH (Leipzig, Germany) (represented by: M. Núñez-Müller, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

Annul Article 1 of the Commission's decision of 23 July 2008 (C(2008) 3512 final) pursuant to the first paragraph of Article 231 EC in so far as the Commission finds that

(a)	the measure adopted by Germany in respect of capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig/Halle airport constitutes State aid for the purposes of Article 87(1) EC; and

(b)	this ‘State aid’ amounts to EUR 350 million;

—	order the Commission to pay the costs of the proceedings, including the applicants' costs, pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicants object to the findings in the first part of Article 1 of Commission Decision C(2008) 3512 final of 23 July 2008 Measure No C48/2006 (ex N227/2006) Germany DHL and Leipzig Halle Airport that the capital contributions granted by Germany to Leipzig/Halle airport represent State aid to the airport and that that aid amounts to EUR 350 million.

The applicants rely on eight pleas in law in support of their claims:

Third, the contested decision is inherently contradictory, in that Flughafen Leipzig/Halle GmbH is simultaneously treated in the decision both as recipient and donor of aid.

Finally, the contested decision is inherently contradictory and infringes the obligation to state reasons in accordance with Article 253 EC.

(1) Communication from the Commission — Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ 2005 C 312, p. 1.

(2) Communication from the Commission — Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector, OJ 1994 C 350, p. 7.

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

20.12.2008

Official Journal of the European Union

C 327/37

Action brought on 6 October 2008 — EuroChem MCC v Council

(Case T-459/08)

(2008/C 327/66)

Language of the case: English

Parties

Applicants: EuroChem Mineral and Chemical Company OAO (EuroChem MCC) (Moscow, Russia), (represented by: P. Vander Schueren and B. Evtimov, lawyers)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Regulation (EC) No 661/2008 of 8 July 2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (1) insofar as it imposes an anti-dumping duty on the applicants, its manufacturing subsidiaries and related companies, indicated in recital 23(a) and (c) and Articles 1.2(a) and 2.2(a) of the contested regulation;

—	Order the Council to pay the costs of and occasioned by these proceedings.

Pleas in law and main arguments

In support of their application the applicants put forward two grounds for annulment. The second ground is divided into three pleas.

First, the applicants submit that the Council and the Commission breached Article 11(3) of the basic regulation (2) and/or made a breach of an essential procedural requirement by refusing to initiate upon their own initiative an interim review of injury and the injury margin findings in parallel with the expiry review, and consequently made a manifest error of assessment in the finding of a likelihood of recurrence of injury in the context of the expiry review.

Secondly, the applicants claim that the Council and the Commission wrongly established the normal value for the applicants in the partial interim review, leading to its artificial increase, and made a wrong comparison with export price, and hence made an erroneous finding of dumping, thereby breaching Articles 1 and 2 of the basic regulation, committing series of manifest errors of assessment and violating fundamental principles of Community law.

More particularly, the applicants argue that the Council and the Commission erred in law and violated Article 2(3) and (5) of the basic regulation as well as their legal context provided by Articles 1 ad 2 of the basic regulation, by disregarding a major part of the applicants' costs of production as being unreliable and/or de facto applying a non-market economy methodology for establishing the major part of the applicants' normal value.

Once having decided to proceed with the gas adjustment, the Commission violated Article 2(5), second sentence, and/or made a manifest error of appreciation and showed a lack of reasoning by implementing the gas adjustment on the basis of the intra-Community price of gas at Waidhaus, Germany and failing to make further deductions.

Finally, the applicants submit that the Council and the Commission violated Article 2(10) of the basic regulation and made a manifest error of assessment of the facts by deducting from the applicants' export price the first independent customer selling, general and administrative expenses and commissions in respect of related companies, which are integral parts of the applicants' single economic entity and integrated sales department.

(1) OJ L 185, p. 1.

(2) 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).

20.12.2008

Official Journal of the European Union

C 327/38

Action brought on 13 October 2008 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI)

(Case T-462/08)

(2008/C 327/67)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, 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: Alcon, Inc. (Hünenberg, Switzerland)

Form of order sought

—	Annul the decision of the Board of Appeal of OHIM of 17 July 2008 (R 1471/2007-1) and the decision of the Opposition Division of OHIM of 16 July 2007 (B 809 899);

—	Reject the Community trade mark application No 003679181 ‘Oftal Cusi’;

—	Order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì, S.A (subsequently, Alcon, Inc.)

Community trade mark applied for: the word mark ‘OFTAL CUSI’ for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings: Winzer Pharma

Mark or sign cited in opposition:‘Ophtal’ (No 489 948) for goods in Class 5.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/1994 (1) in that on account of their similarity there is a likelihood of confusion between the marks at issue.

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

20.12.2008

Official Journal of the European Union

C 327/39

Action brought on 19 October 2008 — Imagion v OHIM (DYNAMIC HD)

(Case T-463/08)

(2008/C 327/68)

Language of the case: German

Parties

Applicant: Imagion AG (Trierweiler, Germany) (represented by: H. Blatzheim, lawyer)

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

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 August 2008 (Case R 488/2008-4); and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘DYNAMIC HD’ for services in Classes 35, 38, 41, 42 and 45 (No 6 092 241)

Decision of the Examiner: Refusal, in part, of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

—	Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the word mark ‘DYNAMIC HD’ is neither descriptive, nor does it lack the necessary distinctive character;

—	Infringement of Article 7(3) of Regulation No 40/94 in that the trade mark applied for has acquired distinctive character through use;

—	Breach of the duty to state reasons;

—	Breach of the principle of equal treatment.

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

20.12.2008

Official Journal of the European Union

C 327/39

Action brought on 15 October 2008 — Czech Republic v Commission

(Case T-465/08)

(2008/C 327/69)

Language of the case: Czech

Parties

Applicant: Czech Republic (represented by: M. Smolek, Agent)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the decision of the Commission of the European Communities of 7 August 2008 on offsetting the Commission's claims against its debts, BUG/C3 D(2008) 10.5-3956;

—	Order the Commission to pay the Czech Republic the amount offset of EUR 9 354 130,93 and the corresponding interest for late payment;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The Czech Republic, by this action brought pursuant to Article 230 of the Treaty establishing the European Community, seeks annulment of the decision of the Commission of the European Communities of 7 August 2008 on offsetting the Commission's claims against its debts, BUG/C3 D(2008) 10.5-3956. The Commission on issuing the contested decision acted pursuant to Article 73(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (1), as amended. By the contested decision, the Commission offset its claim against the Czech Republic, for repayment of funds from the PHARE T9106, CS9203 and CZ9302 revolving funds, amounting to EUR 9 354 130,93. The Commission's claim was offset against the Czech Republic's claim to two interim payments on two operational programmes financed from the structural fund amounting to EUR 10 814 475,41. The Czech Republic thus requests that the offset payments be made good.

2.	The contested decision is invalid, since the Commission exceeded its powers by issuing it, in that the decision in question was adopted on an incorrect legal basis.

Even if it were accepted that, in the present circumstances, Regulation No 1605/2002 could be used, the contested decision is invalid on the ground that it was issued in breach of the conditions laid down for offsetting by that regulation, or, to be more precise, Commission Regulation No 2342/2002 (2), which implements Regulation No 1605/2002 and lays down the offsetting procedure.

4.	Lastly, the contested decision is invalid on the ground that it contains no statement of reasons.

(1) OJ L 248, 16.9.2002, p. 1.

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 357, 31.12.2002, p. 1.

20.12.2008

Official Journal of the European Union

C 327/40

Action brought on 23 October 2008 — Commission v Eurgit and Cirese

(Case T-470/08)

(2008/C 327/70)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: M. Moretto, lawyer, A. M. Rouchaud-Joët and N. Bambara, agents)

Defendants:Associazione dei Giuristi Italiani per le Comunità Europee — Eurgit (Rome, Italy) and Vania Cirese (Rome, Italy)

Form of order sought

—	Order EURGIT and Mrs Vania Cirese, both jointly and severally, to reimburse the principal sum due of EUR 7 142, together with default interest at the statutory interest rate applicable in Belgium with effect from 11 November 2002 until full payment of the sums due;

—	order EURGIT and Mrs Vania Cirese, both jointly and severally, to pay the costs.

Pleas in law and main arguments

The present action is brought by the European Commission pursuant to Article 238 EC for an order that EURGIT and Mrs Cirese, jointly and severally, reimburse the sum of EUR 7 412, together with default interest, being the advance paid by the applicant to EURGIT to carry out project No 97/GR/098, financed in the framework of the GROTIUS programme of incentives and exchanges for legal practitioners.

The Commission submits that, under paragraph 7 of the ‘statement by the beneficiary of a financial contribution’, the beneficiary undertakes, where items of expenditure incurred cannot justify the use of the financial contribution received, to reimburse, upon its request, sums already paid which are not justified.

Since EURGIT has failed, within the prescribed period, to justify the use of the sum advanced by the Commission, there can be no doubt that the defendant and any person acting in its name or on its behalf is liable for the reimbursement of the advance paid.

20.12.2008

Official Journal of the European Union

C 327/40

Action brought on 4 November 2008 — Media-Saturn v OHIM (BEST BUY)

(Case T-476/08)

(2008/C 327/71)

Language of the case: German

Parties

Applicant: Medai-Saturn-Holding GmbH (Ingolstadt, Germany) (represented by K. Lewinsky, lawyer)

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

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of OHIM of 28 August 2008 in appeal proceedings R 0591/2008-4; and

—	Order OHIM to pay the costs of these proceedings and the costs incurred before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark ‘Best Buy’ for goods and services in Classes 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 22, 27, 28, 35, 37, 38, 40, 41 and 42 (No 5 189 550).

Decision of the Examiner: Refusal of registration.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1) in that the trade mark applied for has the necessary minimum distinctive character.

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

20.12.2008

Official Journal of the European Union

C 327/43

Action brought on 17 October 2008 — Cerafogli v ECB

(Case F-84/08)

(2008/C 327/81)

Language of the case: French

Parties

Applicant: Maria Concetta Cerafogli (Frankfurt, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank

Subject-matter and description of the proceedings

Application for an order requiring the ECB to pay compensation in respect of the damage allegedly suffered by the applicant on account of discrimination connected with her trade union activities

Form of order sought

—

Order the defendant to pay compensation for material damage, corresponding, first, to the difference between the salary received by the applicant and the salary for band H, step 54 between 2004 and 2007, that is to say, 23 additional steps and, secondly, to the grant of a bonus of EUR 3 500 per year in respect of 2001, 2002 and 2003;

—	Order the defendant to pay the sum of EUR 157 000 or, in the alternative, the sum of EUR 45 000 to compensate for non-material damage;

—	Annul, in so far as is necessary, the decision of 25 June 2008 rejecting the application for pre-litigation review and the decision of 7 August 2008 rejecting the complaint, in so far as those decisions relate to the present action;

—	Order the European Central Bank to pay the costs.

20.12.2008

Official Journal of the European Union

C 327/43

Action brought on 22 October 2008 — Voslamber v Commission

(Case F-86/08)

(2008/C 327/82)

Language of the case: German

Parties

Applicant: Dietrich Voslamber (Freiburg, Germany) (represented by: L. Thielen, Rechtsanwalt)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the Commission's decision of 9 July 2008, in so far as it rejected the applicant's application for primary sickness insurance cover for his spouse.

Form of order sought

—	Annul the decision of DG ADMIN.B of the European Commission of 9 July 2008 against the applicant;

—	Uphold the applicant's application that in his case his spouse is entitled to primary insurance through the JSIS;

—	Reserve the applicant all rights to provide a more detailed statement of reasons for this application;

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

20.12.2008

Official Journal of the European Union

C 327/43

Action brought on 20 October 2008 — Schuerings v European Training Foundation

(Case F-87/08)

(2008/C 327/83)

Language of the case: French

Parties

Applicant: Gisela Schuerings (Nice, France) (represented by: N. Lhoëst, lawyer)

Defendant: European Training Foundation

Subject-matter and description of the proceedings

Application for annulment of the defendant's decision to dismiss the applicant and for an order requiring the European Training Foundation to pay compensation for the material and non-material damage suffered by the applicant

Form of order sought

—	Annul the decision adopted by the European Training Foundation on 23 October 2007 dismissing the applicant;

—	Annul, in so far as is necessary, the express decision of the European Training Foundation of 10 July 2008 rejecting the complaint which the applicant had submitted under Article 46 of the Conditions of Employment and Article 90(2) of the Staff Regulations;

—	Order the European Training Foundation to pay the sum of EUR 125 000 in respect of material damage;

—	Order the European Training Foundation to pay the sum of EUR 50 000 in respect of non-material damage;

—	Order the European Training Foundation to pay the costs.

20.12.2008

Official Journal of the European Union

C 327/44

Action brought on 20 October 2008 — Vandeuren v European Training Foundation

(Case F-88/08)

(2008/C 327/84)

Language of the case: French

Parties

Applicant: Monique Vandeuren (Pino Torinese, Italy) (represented by: N. Lhoëst, lawyer)

Defendant: European Training Foundation

Subject-matter and description of the proceedings

Annulment of the defendant's decision to dismiss the applicant, and declaration that the European Training Foundation be ordered to compensate the material and non-material damage suffered by the applicant.

Form of order sought

—	annul the decision of 23 October 2007 to dismiss the applicant adopted by the European Training Foundation;

—	in so far as is necessary, annul the explicit decision of the European Training Foundation of 10 July 2008 rejecting the applicant's complaint under Article 46 of the Conditions of Employment of Other Servants of the European Communities and Article 90(2) of the Staff Regulations;

—	order the European Training Foundation to pay the amount of EUR 125 000 by way of material damages;

—	order the European Training Foundation to pay the amount of EUR 50 000 by way of non-material damages;

—	order the European Training Foundation to pay the costs.

		ISSN 1725-2423
Official Journal of the European Union		C 327

English edition	Information and Notices	Volume 51 20 December 2008

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2008/C 327/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 313, 6.12.2008	1