7.3.2009

Official Journal of the European Union

C 55/2

Judgment of the Court (First Chamber) of 15 January 2009 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Hecht-Pharma GmbH v Staatliches Gewerbeaufsichtsamt Lüneburg

(Case C-140/07) (1)

(Directive 2001/83/EC - Articles 1(2) and 2(2) - Concept of ‘medicinal product by function’ - Product in respect of which it has not been established that it is a medicinal product by function - Account taken of the content in active substances)

(2009/C 55/02)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Hecht-Pharma GmbH

Defendant: Staatliches Gewerbeaufsichtsamt Lüneburg

Intervening Party: Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Articles 1(2) and 2(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 136, p. 34) — Classification as a medicinal product of a product containing a component capable of producing physiological changes in the event of consumption of a greater dose than intended for normal use — Applicability of Directive 2001/83/EC to a product which could possibly be classified as a medicinal product but whose quality of a medicinal product has not been determined — Concept of medicinal product

Operative part of the judgment

Article 2(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as meaning that Directive 2001/83, as amended by Directive 2004/27, does not apply to a product in respect of which it has not been scientifically established that it is a medicinal product by function, without its being possible to exclude that possibility.

Article 1(2)(b) of Directive 2001/83, as amended by Directive 2004/27, must be interpreted as meaning that the characteristics of the manner in which a product is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail are still relevant to determining whether that product falls within the definition of a medicinal product by function.

Article 1(2)(b) of Directive 2001/83, as amended by Directive 2004/27, must be interpreted as meaning that, apart from the case of substances or combinations of substances intended for the purpose of making a medical diagnosis, a product cannot be regarded as a medicinal product within the meaning of that provision where, having regard to its composition — including its content in active substances — and if used as intended, it is incapable of appreciably restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action.

(1) OJ C 117, 26.5.2007.

7.3.2009

Official Journal of the European Union

C 55/3

Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — M-K Europa GmbH & Co. KG v Stadt Regensburg

(Case C-383/07) (1)

(Reference for a preliminary ruling - Regulation (EC) No 258/97 - Article 1(1) to (3) - Novel foods and novel food ingredients)

(2009/C 55/03)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: M-K Europa GmbH & Co. KG

Defendant: Stadt Regensburg

Joined party: Landesanwaltschaft Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Interpretation of Article 1(2)(d) and (e) and (3) of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (OJ 1997 L 43, p. 1) — Novel character of a food marketed in a limited geographical area of the Community (San Marino) shortly before the entry into force of the regulation when the food is manufactured from ingredients the habitual human consumption of which is disputed or can be established only by reference to a non-member country (Japan) — Obligation to subject a food to a control

Operative part of the judgment

Importation of a food product into San Marino before the entry into force of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients is not a relevant factor for assessing whether that product meets the requirement relating to human consumption to a significant degree within the European Community within the meaning of Article 1(2) of that regulation.

The fact that all the individual ingredients of a food product meet the requirement laid down in Article 1(2) of Regulation No 258/97, or have a safe history, cannot be regarded as sufficient for that regulation not to apply to the food product concerned. In order to decide whether that food product should be classified as a novel food within the meaning of Regulation No 258/97, the competent national authority must proceed on a case-by-case basis, taking into account all the characteristics of the food product and of the production process.

The fact that all of the algae contained in a food product within the meaning of Article 1(2)(d) of Regulation No 258/97 meet the requirement relating to human consumption to a significant degree within the European Community, within the meaning of Article 1(2) of that regulation, is not sufficient for that regulation not to apply to that product.

4.	Experience regarding the safety of a food product existing exclusively outside Europe is not sufficient to establish that the product concerned falls within the category of food products ‘having a history of safe food use’ within the meaning of Article 1(2)(e) of Regulation No 258/97.

5.	It is not incumbent upon an undertaking to initiate the procedure laid down in Article 13 of Regulation No 258/97.

(1) OJ C 283, 24.11.2007.

7.3.2009

Official Journal of the European Union

C 55/3

Judgment of the Court (First Chamber) of 15 January 2009 (reference for a preliminary ruling from the Oberster Patent- und Markensenat — Austria) — Silberquelle GmbH v Maselli Strickmode GmbH

(Case C-495/07) (1)

(Trade marks - Directive 89/104/EEC - Articles 10 and 12 - Revocation - Concept of ‘genuine use’ of a mark - Affixing the mark to promotional items - Distribution of such items free of charge to the purchasers of goods sold by the mark's proprietor)

(2009/C 55/04)

Language of the case: German

Referring court

Oberster Patent- und Markensenat

Parties to the main proceedings

Applicant: Silberquelle GmbH

Defendant: Maselli Strickmode GmbH

Re:

Reference for a preliminary ruling — Oberster Patent- und Markensenat — Interpretation of Articles 10(1) and 12(1) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Revocation of the rights of the proprietor of the trade mark — Concept of genuine use of the trade mark — Goods (non-alcoholic drink) being given out as free gifts on the occasion of the sale of other goods (textiles)

Operative part of the judgment

Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items.

(1) OJ C 22, 26.1.2008.

7.3.2009

Official Journal of the European Union

C 55/4

Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Republic of Poland) — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

(Case C-502/07) (1)

(VAT - Irregularities in the tax declaration submitted by a taxable person - Additional tax)

(2009/C 55/05)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny (Poland) — Interpretation of paragraphs one and two of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14) and Articles 2, 10(1)(a), 10(2), 27(1) and 33 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National legislation imposing an additional tax liability where irregularities are established in the taxable person's VAT declaration

Operative part of the judgment

The common system of value added tax, as defined in the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes and in Articles 2 and 10(1)(a) and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004, does not preclude a Member State from providing in its legislation for an administrative penalty which may be imposed on persons liable to value added tax, such as the ‘additional tax’ provided for in Article 109(5) and (6) of the Ustawa o podatku od towarów i usług (Law on the taxation of goods and services) of 11 March 2004.

Provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004 do not constitute ‘special measures for derogation’ for preventing certain types of tax evasion or avoidance within the meaning of Article 27(1) of Sixth Directive 77/388, as amended.

3.	Article 33 of Sixth Directive 77/388, as amended, does not preclude the maintenance of provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004.

(1) OJ C 22, 26.1.2008.

7.3.2009

Official Journal of the European Union

C 55/4

Judgment of the Court (Seventh Chamber) of 15 January 2009 — Commission of the European Communities v Italian Republic

(Case C-539/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Article 26(3) - Single European emergency call number - Caller location information - Availability to the authorities handling emergencies - Failure to transpose within the prescribed period)

(2009/C 55/06)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant: Italian Republic (represented by: I. M. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51)

Operative part of the judgment

The Court:

Declares that, by failing, for all calls to the single European emergency call number ‘112’, to make caller location information available, to the extent technically feasible, to the authorities handling emergencies, the Italian Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive);

2.	Orders the Italian Republic to pay the costs.

(1) OJ C 37 of 9.2.2008.

7.3.2009

Official Journal of the European Union

C 55/5

Judgment of the Court (Sixth Chamber) of 15 January 2009 — Commission of the European Communities v Hellenic Republic

(Case C-259/08) (1)

(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Preservation and maintenance of habitats - Classification of special protection areas - Prohibition of hunting and capture - Incorrect transposition)

(2009/C 55/07)

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to transpose Article 3(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Incorrect transposition of Article 3(2), Article 4(1), Article 5 and Article 8(1) of that directive

Operative part of the judgment

The Court:

Declares that, by failing to take all the measures necessary to transpose fully and/or correctly the obligations under Article 3(1) and (2), Article 4(1), Article 5 and Article 8(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under those provisions;

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 209 of 15.8.2008.

7.3.2009

Official Journal of the European Union

C 55/5

Appeal brought on 24 September 2008 by Calebus SA against the judgment delivered on 14 July 2008 in Case T-366/06 Calebus SA v Commission of the European Communities, supported by the Kingdom of Spain

(Case C-421/08 P)

(2009/C 55/08)

Language of the case: Spanish

Parties

Appellant: Calebus SA (represented by: R. Bocanegra Sierra, lawyer)

Other parties to the proceedings: Commission of the European Communities and the Kingdom of Spain

Form of order sought

Take note of the fact that the appeal was lodged against the order of the Court of First Instance of 14 July 2008 declaring inadmissible the action brought by Calebus SA in Case T-366/06, allow the appeal and, after completion of all the legal formalities, give a judgment upholding the appeal, setting aside the judgment under appeal, declaring the action admissible and uphold its claims.

Pleas in law and main arguments

The appeal is brought against the order of 14 July 2008 of the Court of First Instance declaring inadmissible the action brought in Case T-366/06 by Calebus SA against Decision 2006/613/EC (1) of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region as regards the inclusion of the farm ‘Las Cuerdas’ as the SCI ‘ES61110006 Ramblas de Gergal, Tabernas y Sur de Sierra Alhamilla’, which appears on that list.

In the appeal, the appellant takes the view that the order under appeal is vitiated by an error of law when it states that the action is inadmissible because the appellant company has no direct interest in the annulment of the decision. Contrary to the findings in the order, Decision 2006/613 requires Member States, in any event, per se and automatically to make sites classified as Sites of Community Importance (SCI), including the farm ‘Las Cuerdas’, to a protection scheme which necessarily limits the uses to which it may be put, reducing their profitability and sale value. The Member States have discretion to determine the specific content of those measures, but not to decide whether or not to submit the farms to measures of that type, so that the existence of that discretion is not contrary to the direct effect of the decision on the legal status of the appellant undertaking.

(1) OJ 2006 L 259, p. 1.

7.3.2009

Official Journal of the European Union

C 55/6

Appeal brought on 14 November 2008 by the Kingdom of Sweden against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 9 September 2008 in Case T-403/05 MyTravel Group plc v Commission of the European Communities

(Case C-506/08 P)

(2009/C 55/09)

Language of the case: English

Parties

Appellant: Kingdom of Sweden (represented by: K. Petkovska, A. Falk, and S. Johannesson, Agents)

Other parties to the proceedings: MyTravel Group plc, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

—	set aside paragraph 2 of the operative part of the judgment of the Court of First Instance of 9 September 2008 (1) in Case T-403/05,

—	annul the Commission Decision of 5 September 2005 (D(2005) 8461), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission's report and other working documents,

—	annul the Commission Decision of 12 October 2005 (D(2005) 9763), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission's other internal documents, and

—	order the Commission to reimburse the Kingdom of Sweden with its legal costs at the Court of Justice.

Pleas in law and main arguments

The principle of openness and access to the institutions' documents is of great importance in all the institutions' activities, and thus also in the administrative procedure within an institution. Article 2(3) of the transparency regulation also provides that the regulation is to apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. However, the reasoning of the Court of First Instance on the main issues implies that there should be a general requirement of confidentiality in respect of internal documents in administrative matters. That is not consistent with the principle of the greatest possible openness.

In the appellant's view, the reasoning of the Court of First Instance in the matter of the first Decision — regarding the report and the documents relating to it — implies that it was not necessary for the Commission to examine the question of disclosure in relation to the content of each individual document and to assess the sensitivity of the information in the report and the other documents but that, on the contrary, it was correct to refuse disclosure on the ground that officials would otherwise not be able to present their opinions freely. On the basis of the general reasoning of the Court of First Instance as regards the protection of document authors' freedom of opinion, it is not possible to decide when internal documents could be disclosed at all.

The appellant considers that the Court of First Instance also fails in the second decision — regarding other documents in the file — to uphold the fundamental requirement of an examination to determine whether the content of each individual document is so sensitive that disclosure would seriously undermine the decision-making process. The general reasoning of the Court of First Instance is essentially that it would be impossible for officials in the Commission to communicate freely if information not appearing in the final decision were to become public. On the basis of such reasoning, no examination is necessary to determine whether the content of the documents in question is so sensitive that disclosure would prejudice the decision-making process.

The appellant questions whether the hearing officer's report and the note from the Directorate-General for Competition to the advisory committee can really be regarded as documents prepared for internal use which can therefore be kept confidential under the provisions on the protection of the internal decision-making procedure.

In the appellant's view, the reasoning of the Court of First Instance in the matter of opinions of the legal service is at variance with the judgment of the Court in the Turco case. Even if the present case does not concern legislation, clearly an examination must also take place in this instance on the basis of the content of the opinions. The fact that the lawfulness of a previous decision could be called into question does not of itself constitute a reason for not disclosing the document — rather the contrary. The absence of information can in itself give rise to doubt as to the lawfulness of a certain decision and the legitimacy of the decision-making process as a whole. The risk of doubt could also be averted if the Commission clearly stated in the decision the reasons why it had opted for a solution which the legal service had advised against. The claim that the legal service would be more reticent and cautious lacks any basis, in the same way as the Court's reasoning regarding other documents. Besides, the appellant considers that the argument that it would be difficult for the legal service to defend a different position in court is stated in terms which are too general to show that there is a risk which is reasonably foreseeable and not purely hypothetical.

The appellant does not question that a large part of the content of the documents in question may be so sensitive and that it must remain confidential. Such a conclusion must, however, be based, according to case-law, on a specific and individual examination to determine whether disclosure of the content of the document would result in the interest to be protected being seriously undermined.

As regards the freedom of opinion of officials, the appellant wishes to point out that it is incumbent on an official to perform the duties which arise from the service and in accordance with the staff regulations of officials employed in the Community institutions. The fact that the public have a legal right to scrutinise the activity does not constitute an acceptable reason for him to neglect the proper performance of his duties.

An undertaking which is party to a concentration of undertakings, in common with any Union citizen or business with its seat in the European Union whatsoever, has a right to be informed about a document even if the information in the document is confidential in order to protect the internal decision-making procedure, if there is nevertheless an overriding public interest in the disclosure of the document. The considerations which MyTravel has put forward could, in the appellant's view, quite plausibly constitute such a public interest and cannot be dismissed without further examination — as the Court of First Instance has done — solely with reference to the applicant's private interests. The applicant is under no obligation either to plead or to prove anything in that regard; rather, it is for the institutions to ascertain whether there is an overriding public interest.

9.	The appellant submits that, by its decision, the Court of First Instance has disregarded Community law and failed to apply the second indent of Article 4(2) and the second subparagraph of Article 4(3) of the transparency regulation correctly.

10.	In any event there are probably parts of the documents which it should be possible to disclose pursuant to the provisions on partial disclosure in Article 4(6) of the transparency regulation.

(1) OJ C 272, p. 18.

7.3.2009

Official Journal of the European Union

C 55/7

Appeal brought on 27 November 2008 by HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 September 2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Manpower, Inc.

(Case C-520/08 P)

(2009/C 55/10)

Language of the case: English

Parties

Appellant: HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) (represented by: M. Ciresa, Rechtsanwalt)

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

Form of order sought

The appellant claims that the Court should:

—	annul the judgment under appeal

—	order OHIM to pay the costs

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First Instance infringes Articles 51(1)(a) in conjunction with Article 7(1)(b), 7(1)(c), 7(1)(d) and 7(1)(g) of Council Regulation No 40/94 on the Community trademark.

7.3.2009

Official Journal of the European Union

C 55/8

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 December 2008 — Sylvia Bienek v Condor Flugdienst GmbH

(Case C-525/08)

(2009/C 55/11)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Sylvia Bienek

Defendant: Condor Flugdienst GmbH

Questions referred

Does a change in reservation to another flight constitute a situation covered by Article 4(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1)?

2.	If the answer to the first question is in the affirmative: Must that provision also be applied to a change in reservation which was not instigated by the air carrier, but by the tour operator alone?

(1) OJ 2004 L 46, p. 1.

7.3.2009

Official Journal of the European Union

C 55/8

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (The Netherlands) lodged on 4 December 2008 — X Holding BV v Minister van Financiën

(Case C-538/08)

(2009/C 55/12)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X Holding BV

Respondent: Minister van Financiën

Questions referred

Must Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) be interpreted as meaning that a Member State wishing to take advantage of the possibility for which those provisions provide of (retaining) the exclusion of deduction with respect to categories of expenditure which are described as ‘providing the opportunity for private transport’ has satisfied the condition of designating a category of adequately definable goods and services?

If the answer to the first question is in the affirmative, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for national legislation such as that at issue in the proceedings, which was adopted before that Directive entered into force and under which a taxable person may not deduct in full the VAT paid on the acquisition of certain goods and services which are used partly for business purposes and partly for private purposes of the staff, but may do so only to the extent that the VAT is attributable to use for business purposes?

(1) Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ L 8, p. 17).

(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).

7.3.2009

Official Journal of the European Union

C 55/8

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Fokus Invest AG v FIAG Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)

(Case C-541/08)

(2009/C 55/13)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Fokus Invest AG

Defendant: FIAG Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)

Questions referred

Is Article 25 of Annex I to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (1) to be interpreted as meaning that the obligation to treat as nationals for the purposes of the acquisition of immovable property applies only in relation to natural persons, but not to companies?

If the first question is answered in the affirmative:

Do the provisions of the Wiener Ausländergrunderwerbsgesetz (Viennese law on the purchase of real property by non-nationals; ‘WrAuslGEG’) which in the case of acquisition of immovable property by foreign companies as defined in point 3 of Paragraph 2 of the WrAuslGEG require the production of a certificate attesting to exemption from the requirement to obtain authorisation (Paragraph 5(4) and point 3 of Paragraph 3 of the WrAuslGEG) constitute a restriction on the free movement of capital (Article 56 EC) permitted under Article 57(1) EC in relation to Switzerland as a third country?

(1) OJ 2002 L 114, p. 6.

7.3.2009

Official Journal of the European Union

C 55/9

Action brought on 10 December 2008 — Commission of the European Communities v Ireland

(Case C-549/08)

(2009/C 55/14)

Language of the case: English

Parties

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

Defendant: Ireland

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/70/EC (1) of 1 August 2006 laying down implementing measures for Directive 2005/60/EC (2) of the European Parliament and of the Council as regards the definition of a ‘politically exposed person’ and the technical criteria for simplified customer due diligence and for exemption on grounds of a financial activity conducted on an occasional or very limited basis, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;

—	order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 15 December 2007.

(1) OJ L 214, p. 29.

(2) OJ L 309, p. 15.

7.3.2009

Official Journal of the European Union

C 55/9

Action brought on 11 December 2008 — Commission of the European Communities v Republic of Poland

(Case C-551/08)

(2009/C 55/15)

Language of the case: Polish

Parties

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

Defendant: Republic of Poland

Form of order sought

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1), and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 64 of that directive;

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2005/68/EC expired on 10 December 2007.

(1) OJ L 323 of 9.12.2005, p. 1.

7.3.2009

Official Journal of the European Union

C 55/10

Appeal brought on 12 December 2008 by Agrar-Invest-Tatschl GmbH against the judgment delivered by the Court of First Instance (Eighth Chamber) on 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of the European Communities

(Case C-552/08 P)

(2009/C 55/16)

Language of the case: German

Parties

Appellant: Agrar-Invest-Tatschl GmbH (represented by: U. Schrömbges and O. Wenzlaff, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	set aside the contested judgment delivered by the Court of First Instance of the European Communities on 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission;

—	in accordance with the first claim set out in the application of 22 February 2007 in Case T-51/07 before the Court of First Instance of the European Communities, annul Article 1(2) and Article 1(3) of Commission Decision C(2006) 5789 final (REC 05/05) of 4 December 2006.

Pleas in law and main arguments

This appeal contests the judgment of the Court of First Instance which dismissed the appellant's action challenging Commission Decision C(2006) 5789 final of 4 December 2006 on the subsequent entering in the accounts of import duties owed by the appellant for the import of sugar from Croatia.

The Court of First Instance's basis for dismissing the appellant's action was the absence of good faith, one of the four requirements that must all be met if import duties are not to be subsequently entered in the accounts. The Court stated that, under the fifth subparagraph of Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the Customs Code’), the person liable cannot plead his good faith if the European Commission, as in the case in point, has published in the Official Journal a notice to importers stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country. Nor, according to the Court of First Instance, is it material that the appellant acted in good faith with regard to the subsequent confirmation of the authenticity and accuracy of the movement certificates, since it in any event did not act in good faith when the imports took place.

The appellant bases its appeal on an incorrect interpretation by the Court of First Instance of the fifth subparagraph of Article 220(2)(b) of the Customs Code. It submits that the Court's interpretation is wrong in law in that, according to the Court, the Commission notice published in the Official Journal concerning doubt as to the proper application of the preferential arrangements by the beneficiary country has the effect of excluding good faith even where, as in the present case, the relevant certificates issued in connection with the securing of preferential treatment were subject after publication of the warning notice to a verification procedure that confirmed their authenticity and accuracy.

The Court of First Instance fails to recognise that the effect of a warning notice that is laid down in the fifth subparagraph of Article 220(2)(b) of the Customs Code is restricted by the principle under which decisions of third-country customs authorities within the framework of a system of administrative cooperation should be recognised. The provision of the Customs Code at issue involves a legal fiction of bad faith which is rebuttable, indeed — as in the present case — precisely by carrying out a verification procedure. The appellant's good faith is therefore restored by the subsequent confirmation of the authenticity and accuracy of the movement certificates, that is to say, the appellant could rely on the fact that the grounds for doubt on the basis of which the Commission's warning notice was published were removed in the course of the verification procedure. The appellant's good faith is therefore dependent not on proper issue of the movement certificates at issue by the Croatian authorities but on the proper verification of those certificates by the customs authorities on the basis of the doubts, disclosed by the Commission's warning notice, as to whether they were properly issued.

7.3.2009

Official Journal of the European Union

C 55/10

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 17 December 2008 — Portakabin Limited and Portakabin BV v Primakabin BV

(Case C-558/08)

(2009/C 55/17)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellants in cassation: Portakabin Limited and Portakabin BV

Respondent in cassation: Primakabin BV

Questions referred

(a)

Where a trader in certain goods or services (‘the advertiser’) avails himself of the possibility of submitting to the provider of an internet search engine an adword [when advertising via the internet, it is possible to pay to use ‘adwords’ on search engines such as Google. When such an adword is keyed into the search engine, a reference to the advertiser's website appears either in the list of webpages found, or as an advertisement on the right-hand side of the page showing the results of the search, under the heading ‘Sponsored links’] which is identical to a trade mark registered by another person (‘the proprietor’) in respect of similar goods or services, and the adword submitted — without this being visible to the search engine user — results in the internet user who enters that word finding a reference to the advertiser's website in the search engine provider's list of search results, is the advertiser ‘using’ the registered trade mark within the meaning of Article 5(1)(a) of Directive 89/104/EEC (1)?

(b)

Does it make a difference in that regard whether the reference is displayed

—	in the ordinary list of webpages found; or

—	in an advertising section identified as such?

(c)

Does it make a difference in that regard

—	whether, even within the reference notification on the search engine provider's webpage, the advertiser is actually offering goods or services that are identical to the goods or services covered by the registered trade mark; or

—

whether the advertiser is in fact offering goods or services which are identical to the goods or services covered by the registered trade mark on a webpage of his own, which internet users (as referred to in Question 1(a)) can access via a hyperlink in the reference on the search engine provider's webpage?

2.	If and in so far as the answer to Question 1 is in the affirmative, can Article 6 of Directive 89/104, in particular Article 6(1)(b) and (c), result in the proprietor being precluded from prohibiting the use described in Question 1 and, if so, under what circumstances?

In so far as the answer to Question 1 is in the affirmative, is Article 7 of Directive 89/104 applicable where an offer by the advertiser, as indicated in Question 1, relates to goods which have been marketed in the European Community under the proprietor's trade mark referred to in Question 1 or with his permission?

Do the answers to the foregoing questions apply also in the case of adwords, as referred to in Question 1, submitted by the advertiser, in which the trade mark is deliberately reproduced with minor spelling mistakes, making searches by the internet-using public more effective, assuming that the trade mark is reproduced correctly on the advertiser's website?

If and in so far as the answers to the foregoing questions mean that the trade mark is not being used within the meaning of Article 5(1) of Directive 89/104, are the Member States entitled, in relation to the use of adwords such as those at issue in this case, simply to grant protection — under Article 5(5) of that directive, in accordance with provisions in force in those States relating to the protection against the use of a sign other than for the purposes of distinguishing goods or services — against use of that sign which, in the opinion of the courts of those Member States, without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark, or do Community-law parameters associated with the answers to the foregoing questions apply to national courts?

(1) First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).

7.3.2009

Official Journal of the European Union

C 55/11

Action brought on 17 December 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-560/08)

(2009/C 55/18)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, D. Recchia and J.-B. Laignelot, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

—

declare that the Kingdom of Spain has failed to fulfil its obligations,

—

in accordance with Article 2(1), Article 3(1) and (2) as the case may be, Article 4 and Article 5 of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4; in accordance with Article 6(2) and Article 8 of Council Directive 85/337/EEC in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 2 and 4; and in accordance with Article 9 of Directive 85/337/EEC in relation to separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4;

—

in accordance with Article 6(3) and (4) of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, read in conjunction with Article 7 thereof, with respect to the separate projects for widening and/or upgrading the M-501 road corresponding to sections 1, 2 and 4 of the special protection area for birds ES 0000056 ‘Encinares del río Alberche y río Cofio’;

—

in accordance with Directive 92/43/EEC, interpreted by the judgments of the Court of Justice of 13 January 2005 in Case C-117/03 and 14 September 2006 in Case C-244/05, and the obligations resulting from Article 12(1)(b) and (d) of the directive, with respect to separate projects for widening and/or upgrading the M-501 road corresponding to section 1 as regards the site proposed as a site of Community importance ES 3110005 ‘Cuenca del río Guadarrama’, and sections 2 and 4 regarding the proposed site of Community interest ES 3110007 ‘Cuenca de los ríos Alberche y Cofio’;

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The action brought by the Commission relates to the projects approved or, as the case may be, implemented by the Spanish authorities with respect to the widening and/or upgrading of the local M-501 road (Community of Madrid). The Commission takes the view that the Kingdom of Spain has failed, with respect to those projects, to fulfil its obligations under Directive 85/337, in its original or amended version, and Directive 92/43, as interpreted by the judgments of the Court of Justice of 13 January 2005 in Case C-117/03 and of 14 September 2006 in Case C-244/05.

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

(2) OJ 1992 L 206, p. 7.

7.3.2009

Official Journal of the European Union

C 55/12

Action brought on 19 December 2008 — Commission of the European Communities v Italian Republic

(Case C-565/08)

(2009/C 55/19)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and L. Prete, acting as Agents)

Defendant: Italian Republic

Forms of order sought

—	Declare that the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC by adopting provisions fixing compulsory ceilings for lawyers' fees;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The capping of the fees that may be charged for the court-based and out-of-court services of lawyers constitutes a restriction on the freedom of establishment within the meaning of Article 43 EC, and also a restriction on the freedom to provide services within the meaning of Article 49 EC. Indeed, a compulsory scale of fee ceilings that must be applied, irrespective of the quality of the service provided, the work required and the costs incurred, may make the Italian market in legal services unattractive for foreign professionals. Lawyers established in other Member States are therefore discouraged from establishing themselves in Italy or providing their services there on a temporary basis.

First, having to adapt to a new (and very complex) fee regime entails additional costs that may make it more difficult to exercise the fundamental freedoms recognised by the Treaty.

Secondly, fee ceilings represent a further restriction on the free movement of legal services in the internal market, since they prevent the quality of the activities carried out by lawyers established in Member States other than Italy from being correctly remunerated; this means that some lawyers, who normally ask for higher fees than those established under the Italian legislation on the basis of the Italian market, are deterred from providing their services in Italy on a temporary basis or from establishing themselves in that State.

Lastly, the rigidity of the Italian fee regime prevents lawyers (including those established abroad) from making special offers in specific situations and/or to specific clients: for example, a package of given legal services for a fixed fee, or a number of legal services provided in several Member States at a common rate. The Italian legislation may therefore lead the situation of lawyers established abroad to be less competitive since it deprives them of an effective means of penetrating the Italian legal market.

In addition, the disputed measure appears neither suitable for attaining the general interest objectives referred to by the Italian authorities, nor the least restrictive means of achieving those objectives. In particular, the disputed measure does not appear to be a suitable means of ensuring that the less affluent have access to justice, or that the recipients of legal services are protected, or for ensuring the proper administration of justice. Nor does the measure appear proportionate, since there are other measures which appear to be appreciably less restrictive for lawyers established abroad, and equally (if not more) suitable for achieving the protection objectives relied on by the Italian authorities.

Lastly, the Italian authorities have not explained what, if any, alternative measures, less restrictive of lawyers established in other Member States, have been considered; nor have they set out the reasons why the general interests pursued are not already protected by the provisions in force in the other Member States of the Community for governing the legal profession.

7.3.2009

Official Journal of the European Union

C 55/13

Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic

(Case C-571/08)

(2009/C 55/21)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls and L. Pignataro, agents)

Defendant: Italian Republic

Form of order sought

—	Declare that, by providing for a minimum price for cigarettes and a period of 120 days within which approval is to be obtained for a change in the price of manufactured tobacco, the Italian Republic has failed to fulfil its obligations under Article 9(1) of Directive 95/59/EC (1).

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The minimum price

The Commission submits that, by fixing a minimum price for cigarettes, the Italian Republic has infringed Article 9(1) of Directive 95/59/EC (and Article 5 of Directive 72/464/EEC (2), which it replaces and which is essentially identical to it). That provision establishes the principle that manufacturers and importers are free to determine the maximum retail selling price for manufactured tobacco. In accordance with that principle, Member States cannot justify the exercise of any discretion to fix maximum retail selling prices by reference to ‘the control of price levels’, ‘the observance of imposed prices’ or the fixing of a scale of retail selling prices in accordance with Article 9(2) of Directive 95/59/EC.

The minimum price cannot be justified by on the grounds of protection of public health. That objective, which was taken into account by the Community legislature, can be achieved by means of increased taxation of cigarettes, in accordance with the tax parameters that are appropriate to the situation of each Member State.

The Italian Government's argument alleging that, as a result of prices that are too high or inappropriate in terms of the market, there is a risk of increasing trafficking in contraband or counterfeit goods is also unfounded. That argument is based on mere assertions made by the Italian Government which are not substantiated by any evidence in that it has failed to explain how the difference in prices as a result of an increase in taxation should lead to a greater incidence of fraud than would be the case if a minimum price policy were adopted. The Commission maintains that it is for the individual Member State to carry out the necessary controls, within the framework of Community law, to ensure that the taxes owing to it are collected. That requirement must not in any way affect the obligation incumbent upon Member States to comply with the provisions of Directive 95/59/EC, including Article 9 thereof.

The 120-day period within which approval is to be obtained for the prices of manufactured tobacco

For the purpose of marketing in Italy, the prices of manufactured tobacco products must be registered for inclusion on the official list of prices. The request for registration must be sent to the Ministero dell'Economia e delle Finanze (Finance Ministry) — Amministrazione Autonoma dei Monopoli di Stato (the autonomous body administering State monopolies) (AAMS). The AAMS does not enjoy any discretion as to whether to confirm the registration. The Commission takes the view that the effect of the excessively long period of 120 days prescribed by the Italian authorities for complying with a request to change prices is that the principle that economic operators must be free to fix maximum prices, enshrined in Article 9(1) of Directive 95/59/EC, is, in practice, to some extent undermined.

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

(2) Council Directive 72/464/EEC of 19 December 1972 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1972 L 303, p. 1).

7.3.2009

Official Journal of the European Union

C 55/14

Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic

(Case C-572/08)

(2009/C 55/22)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and W. Mölls, acting as Agents)

Defendant: Italian Republic

Forms of order sought

—

A declaration that the Italian Republic has failed to fulfil its obligations under Article 90 EC, by conferring a tax concession on regenerated lubricating oil produced from used oil collected in Italy, but refusing to confer the same concession on regenerated lubricating oil produced from used oil collected in other Member States (in accordance with Circular 24/D of 5 May 2004 of the Italian Revenue Authority and Article 1(116) of Law No 266 of 23 December 2005, as interpreted by Article 62 of the Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Consolidated Text of Legislative Provisions relating to duties on production and consumption and related criminal and administrative penalties) approved by Decree No 504 of the President of the Republic of 26 October 1995);

—	An order that the Italian Republic is to pay the costs.

Pleas in law and main arguments

The Commission complains that the Italian authorities are operating a system of tax concessions on regenerated lubricating oil which favours national production to the detriment of that from other Member States, in clear breach of the principle of non-discrimination, which in the field of taxation is laid down in Article 90 EC.

That system reproduces a previous regime of tax concessions already condemned by the Court of Justice in 1980, and the Italian Republic's arguments in favour of the new system cannot justify such a choice.

7.3.2009

Official Journal of the European Union

C 55/14

Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic

(Case C-573/08)

(2009/C 55/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia, acting as Agent)

Defendant: Italian Republic

Form of order sought

—

Declare that the Italian Republic has failed to fulfil its obligations under Articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 13 and 18 of Directive 79/409/EEC:

—	by failing to transpose Directive 79/409/EEC (1) into Italian law in a manner which is wholly in compliance with that directive;

—	by failing to transpose Article 9 of Directive 79/409/EEC into Italian law in a manner which ensures that the derogations adopted by the competent Italian authorities comply with the conditions and requirements laid down in that provision;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission argues that the Italian legislation does not fully transpose Directive 79/409/EEC into Italian law in a manner that is in compliance with that directive:

Article 2: not transposed;

Article 3: not transposed in compliance with the directive, owing to the failure to transpose Article 2;

Article 4(4): not transposed;

Article 5: non-transposition of the prohibition of the deliberate destruction of nests and eggs, or of deliberate damage thereto, and of the prohibition of the deliberate disturbance of the species of bird protected by the directive;

Article 6: non-transposition of the prohibition on transport for sale;

Article 7(4): incomplete transposition (the way in which the hunting seasons have been fixed does not ensure that hunting is prohibited during the rearing season and the various stages of reproduction; nor, in particular, as regards migratory species, does it ensure that hunting is prohibited during the period of reproduction or during the return to the rearing grounds; moreover, the obligation to send the Commission all relevant information on the practical application of the hunting legislation has not been transposed);

Article 9: not transposed at State level in compliance with the directive (the reviews of the legitimacy of the derogations are ineffective and belated); incorrect transposition and implementation at regional level (Abruzzo, Lazio, Toscana, Lombardia, Emilia Romagna, Marche, Calabria and Puglia);

Article 10(2): incomplete transposition (failure to transpose the obligation to send the Commission the information required for the coordination of the research and work for the protection, management and use of the population of the species of bird protected by the directive);

Article 11: incomplete transposition (failure to transpose the obligation to consult the Commission with respect to the introduction of exotic species);

Article 13: not transposed;

Article 18(2): failure on the part of the Italian authorities to communicate the texts setting out the provisions of regional law on hunting for the regions of Lazio, Lombardia, Toscana and Puglia.

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).

7.3.2009

Official Journal of the European Union

C 55/15

Appeal brought on 23 December 2008 by People's Mojahedin Organization of Iran against the judgment of the Court of First Instance (Seventh Chamber) delivered on 23 October 2008 in Case T-256/07 People's Mojahedin Organization of Iran v Council of the European Union

(Case C-576/08 P)

(2009/C 55/24)

Language of the case: English

Parties

Appellant: People's Mojahedin Organization of Iran (represented by: J.-P. Spitzer, lawyer, D. Vaughan QC, M.-E. Demetriou, Barrister)

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

Form of order sought

The appellant claims that the Court should:

—	set aside the decision of the Court of First Instance insofar as that Court dismissed the PMOI's application to annul Council Decision 2007/445/EC (1) as unfounded;

—	annul Decision 2007/445/EC insofar as it concerned the PMOI;

—	order the Council to pay the Appellant's costs in this Court and with regard to Decision 2007/445/EC in the Court of First Instance.

Pleas in law and main arguments

The Appellant contends that in a case which concerned fundamental rights and the application of Article 1(4) and 1(6) of Common Position 931/2001 and Article 2(3) of Regulation 2580/2001 in relation to a Community measure which maintained the People's Mojahedin of Iran on the list of proscribed organisations:

(1)	In determining whether the Council had made a manifest error of assessment, the Court of First Instance failed to provide a full review of Decision 2006/445/EC as required by the EC Treaty;

(2)	The Court of First Instance failed to respect the principle of effective judicial protection by failing to provide full review;

(3)

The Court of First Instance was wrong in law to conclude that the Council had not committed a manifest error of assessment in reaching its Decision. The Council and the CFI had before it all the facts and arguments that were before the national tribunal and should have considered the exculpatory material in detail;

(4)

The Court of First Instance was wrong in law under Articles 1(4) and (6) of the aforesaid Common Position and Article 2(3) of the aforesaid Regulation to reject the Appellant's contention that only contemporaneous terrorist activity or threats are capable of justifying the continued inclusion of a person on the list;

(5)	The CFI was wrong to conclude that the Council could correctly exclude the exculpatory material adduced by the Appellant on the basis of its conclusion on the matters addressed by the previous ground of appeal;

(6)

The Court of First Instance was wrong to reject the Appellant's argument that the Council had failed to give adequate reasons in respect of the exculpatory material adduced by the Appellant concerning matters since 2001, and why the continued inclusion of the Appellant on the list of proscribed organisations was justified.

(1) Council Decision of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measres directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (2007/445/EC) (OJ L 169, p. 58).

7.3.2009

Official Journal of the European Union

C 55/16

Reference for a preliminary ruling from the Arbeidshof te Antwerpen, Afdeling Hasselt (Belgium) lodged on 29 December 2008 — Rijksdienst voor pensioenen v E. Brouwer

(Case C-577/08)

(2009/C 55/25)

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen, Afdeling Hasselt

Parties to the main proceedings

Applicant: Rijksdienst voor pensioenen

Defendant: E. Brouwer

Question referred

Are the Royal Decrees of 1.12.1969, 18.6.1970, 8.6.1971, 14.9.1972, 31.7.1973, 12.7.1974, 13.2.1975, 28.11.1975, 26.11.1976, 26.9.1977, 31.7.1978, 31.8.1979, 2.12.1980, 13.1.1982, 14.3.1983, 11.1.1984, 30.11.1984, 24.1.1986, 30.12.1986, 6.1.1988, 2.12.1988, 30.11.1989, 10.12.1990, 1.6.1993, 8.12.1993, 19.12.1994 and 10.10.1995 enacted pursuant to Article 25 of the Royal Decree of 21 December 1967 laying down general rules for the retirement and survivor's pension for employed persons (Koninklijk Besluit tot vaststelling van het algemeen reglement betreffende het rust- en overleveringspensioen voor werknemers) — which establish lower notional and/or flat-rate daily wages for the calculation of a retirement pension for female frontier workers than for male frontier workers — in accordance with Article 4(1) of Directive 79/7/EEC (1) on the progressive implementation of the principle of equal treatment for men and women in matters of social security?

(1) Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).

7.3.2009

Official Journal of the European Union

C 55/16

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 29 December 2008 — Rhimou Chakroun v Minister van Buitenlandse Zaken

(Case C-578/08)

(2009/C 55/26)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Rhimou Chakroun

Defendant: Minister van Buitenlandse Zaken

Questions referred

Should the phrase ‘recourse to the social assistance system’ in Article 7(1)(c) of Council Directive 2003/86/EC (1) of 22 September 2003 on the right to family reunification be interpreted as permitting a Member State to make an arrangement in respect of family reunification which results in family reunification not being granted to a sponsor who has provided evidence of having stable and regular resources to meet general subsistence costs, but who, given the level of such resources, shall nevertheless be entitled to claim special assistance to meet exceptional, individually determined, essential living costs, income-related remission of charges by municipal authorities, or income-support measures in the context of municipal minimum income policies?

Should Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, in particular Article 2(d), be interpreted as precluding national legislation which, in applying the resource requirement pursuant to Article 7(1)(c), makes a distinction according to whether a family relationship arose before or after the entry of the resident of the Member State?

(1) Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251, p. 12).

7.3.2009

Official Journal of the European Union

C 55/17

Appeal brought on 24 December 2008 by Messer Group GmbH against the judgment of the Court of First Instance (First Chamber) delivered on 15 October 2008 in Case T-305/06 Air Products and Chemicals Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-579/08 P)

(2009/C 55/27)

Language of the case: English

Parties

Appellant: Messer Group GmbH (represented by: W. Graf v. Schwerin and J. Schmidt, Attorneys at law)

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

Form of order sought

The appellant claims that the Court should:

—	Set aside the judgment of the Court of First Instance of 15 October 2008 in joined cases T-305/06, T-306/06 and T-307/06 and dismiss the action

—	Order the applicant to pay the costs, including those of the appellant and intervener,

alternatively,

—	Set aside the judgment of the Court of First Instance of 15 October 2008 in joined cases T-305/06, T-306/06 and T-307/06;

—	Refer the case back to the Court of First Instance;

—	Reserve the costs.

Pleas in law and main arguments

The applicant submits that the Court of First Instance failed to apply correctly the criteria laid down for the proper implementation of Article 8(1)(b) of Regulation (EC) No 40/94 (1).

Furthermore the applicant submits that the contested decision of the Court of First Instance is based on a substantive inaccuracy in its findings with respect to the determination of the relevant public.

(1) Council Regulation (EC) No 40/94 of 20 December 2003 on the Community trade mark (OJ L 11, p. 1).

7.3.2009

Official Journal of the European Union

C 55/17

Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-581/08)

(2009/C 55/28)

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: EMI Group Ltd

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

Questions referred

(a)	How is the last sentence of Article 5.6 of the Sixth Directive (1) to be interpreted in the context of the circumstances of the present case?

(b)	In particular, what are the essential characteristics of a ‘sample’ within the meaning of the last sentence of Article 5.6 of the Sixth Directive?

(c)

Is a Member State permitted to limit the interpretation of ‘sample’ in the last sentence of Article 5.6 of the Sixth Directive to-

(i)	an industrial sample in a form not ordinarily available for sale to the public given to an actual or potential customer of the business (until 1993),

(ii)	only one, or only the first of a number of samples given by the same person to the same recipient where those samples are identical or do not differ in any material respect from each other (from 1993)?

(d)

Is a Member State permitted to limit the interpretation of ‘gifts of small value’ in the last sentence of Article 5.6 of the Sixth Directive in such a way as to exclude-

(i)	a gift of goods forming part of a series or succession of gifts made to the same person from time to time (to October 2003),

(ii)	any business gifts made to the same person in any 12-month period where the total cost exceeds £50 (October 2003 onwards)?

(e)

If the answer to question (c)(ii) above or any part of question (d) above is ‘yes’, where a taxable person gives a similar or identical gift of recorded music to two or more different individuals because of their personal qualities in being able to influence the level of exposure the artist in question receives, is the Member Stale permitted to treat those items as given to the same person solely because those individuals are employed by the same person?

(f)	Would the answers to questions (a) to (e) above be affected by the recipient being, or being employed by, a fully taxable person, who would be (or would have been) able to deduct any input tax payable on the provision of the goods consisting of the sample?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).

7.3.2009

Official Journal of the European Union

C 55/18

Reference for a preliminary ruling from the Cour d'appel de Liège (Belgium) lodged on 29 December 2008 — Real Madrid Football Club, Zinedine Zidane, David Beckham, Raul Gonzalez Blanco, Ronaldo Luiz Nazario de Lima, Luis Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D., Victor Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V., Imari BV, Juventus Football Club SPA v Sporting Exchange Ltd, William Hill Credit Limited, Victor Chandler (International) Ltd, BWIN International Ltd (Betandwin), Ladbrokes Betting and Gaming Ltd, Ladbroke Belgium S.A., Internet Opportunity Entertainment Ltd, Global Entertainment Ltd (Unibet)

(Case C-584/08)

(2009/C 55/29)

Language of the case: French

Referring court

Cour d'appel de Liège

Parties to the main proceedings

Appellants: Real Madrid Football Club, Zinedine Zidane, David Beckham, Raul Gonzalez Blanco, Ronaldo Luiz Nazario de Lima, Luis Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D., Victor Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V., Imari BV, Juventus Football Club SPA

Respondents: Sporting Exchange Ltd, William Hill Credit Limited, Victor Chandler (International) Ltd, BWIN International Ltd (Betandwin), Ladbrokes Betting and Gaming Ltd, Ladbroke Belgium S.A., Internet Opportunity Entertainment Ltd, Global Entertainment Ltd (Unibet)

Questions referred

The questions relate to the interpretation to be given, in the specific field of the internet, to Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1).

Where, as in the present case, the alleged harm is caused by websites and

(a)	none of the companies being sued, which run the websites in question, has its company seat in Belgium,

(b)	none of the websites in question is hosted in Belgium,

(c)	none of the claimants is domiciled in Belgium,

(d)

the betting websites are available to Belgian internet users, who can place their bets on those sites, to the same extent as they are available to internet users in other contracting States since they are ‘.com’ websites which have the purpose of extending their market to the whole of Europe, and they do not have the extension ‘.be’ which is specific to Belgium,

(e)	those websites are available in a number of languages without the two most commonly used languages in Belgium always being among them,

(f)	those websites offer, inter alia, bets on Belgian matches, in the same way as for foreign championships,

(g)	the use of a particular technology or canvassing technique aimed at the Belgian public has not been proved,

(h)

the number of bets placed by the Belgian public is entirely marginal in comparison with the total number of bets taken by those sites, since, according to the figures submitted by the bookmaking companies for 2005, which were not disputed, all the Belgian betting on football matches represents less than 0.25 % of the bets taken on the websites ‘bwin.com’, ‘willhill.com’, ‘betfair.com’, ‘ladbrokes.com’, ‘sportingbet’, and ‘miapuesta’, while ‘vcbet.com’ refers to 40 Belgian bettors among all the bets placed with it,

1.	should it be held that the alleged harm occurred or is liable to occur in Belgium, so that the Belgian courts have jurisdiction to hear the actions relating to that harm because the websites in question are directed, inter alia, at the Belgian public?

or should it be held that the alleged harm occurred or is liable to occur in Belgium, so that Belgian courts have jurisdiction to hear the actions relating to that harm, only if the existence of a sufficient, substantial or meaningful connection between the tortious events pleaded and Belgian territory is established?

3.	if so, what are the relevant criteria to be taken into consideration in assessing whether such a connecting factor exists?

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

7.3.2009

Official Journal of the European Union

C 55/19

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 29 December 2008 — Angelo Rubino v Ministero dell'Università e della Ricerca

(Case C-586/08)

(2009/C 55/30)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Angelo Rubino

Defendant: Ministero dell'Università e della Ricerca

Question referred

Is it contrary to the Community principles concerning the abolition of obstacles to the free movement of persons and services between Member States of the Community, and the mutual recognition of diplomas, certificates and other evidence of formal qualifications, set out in Articles 3(1)(c) and 47(1) of the Treaty establishing the European Community, and the provisions contained in Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, for national legislation, such as the Italian rules laid down in Legislative Decree 206/2007, to exclude university lecturers from the scope of the regulated professions for purposes of the recognition of professional qualifications?

(1) OJ 2005 L 255, p. 22.

7.3.2009

Official Journal of the European Union

C 55/19

Reference for a preliminary ruling from the Varhoven administrativen Sad (Bulgaria) lodged on 6 January 2009 — Peter Dimitrov Kalinchev v Regionalna Mitnicheska Direktsia — Plovdiv

(Case C-2/09)

(2009/C 55/31)

Language of the case: Bulgarian

Referring court

Varhoven administrativen Sad

Parties to the main proceedings

Applicant: Peter Dimitrov Kalinchev

Defendant: Regionalna Mitnicheska Direktsia — Plovdiv

Questions referred

Does Article 3(3) of Council Directive 92/12/EEC (1) of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products allow Member States to lay down a provision that excise duty be levied on the introduction of used motor vehicles into their territory, if that duty is not directly payable on the second-hand purchase of such vehicles which are already in the country and for which on first introduction into the territory of the Member State excise duty is paid?

Does the expression ‘similar domestic products’ in the first paragraph of Article 90 EC mean:

(a)	products which have their origin in the Member State, which lays down specific domestic duties; or

(b)	products which, independently of their origin, are already in the territory of that Member State?

Having regard to the answers to the questions above: Are Article 25 EC and the first paragraph of Article 90 EC to be read as a prohibition on the differing rules on the levying of excise duty on motor vehicles which the Republic of Bulgaria has laid down in Articles 30 and 40 of the ZADS according to the criteria of year of manufacture and mileage?

(1) OJ 1992 L 76, p. 1.

7.3.2009

Official Journal of the European Union

C 55/20

Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic

(Case C-10/09)

(2009/C 55/33)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by C. Cattabriga and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/86/EC (1) of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells or, at any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;

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

Pleas in law and main arguments

The period prescribed for transposing the directive into domestic law expired on 1 September 2007.

(1) OJ 2006 L 294, p. 32.

7.3.2009

Official Journal of the European Union

C 55/20

Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic

(Case C-11/09)

(2009/C 55/34)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by C. Cattabriga and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC (1) of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells or, at any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive

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

Pleas in law and main arguments

The period prescribed for transposing the directive expired on 1 November 2006.

(1) OJ 2006 L 38, p. 40.

7.3.2009

Official Journal of the European Union

C 55/21

Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic

(Case C-12/09)

(2009/C 55/35)

Language of the case: Italian

Parties

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

Defendant: Italian Republic

Forms of order sought

—

Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 7(1) of Commission Directive 2006/17/EC (1) of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/17/EC or, in any event, by not communicating those measures to the Commission.

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2006/17/EC expired on 1 November 2006.

(1) OJ 2006 L 38, p. 40.

7.3.2009

Official Journal of the European Union

C 55/21

Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic

(Case C-13/09)

(2009/C 55/36)

Language of the case: Italian

Parties

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

Defendant: Italian Republic

Forms of order sought

—

Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 11(1) of Commission Directive 2006/86/EC (1) of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/86/EC or, in any event, by not communicating those measures to the Commission.

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2006/86/EC expired on 1 September 2007.

(1) OJ 2006 L 294, p. 32.

7.3.2009

Official Journal of the European Union

C 55/22

Judgment of the Court of First Instance of 14 January 2009 — Kronoply v Commission

(Case T-162/06) (1)

(State aid - Regional aid for large investment projects - Decision declaring the aid incompatible with the common market - Statement of reasons - Incentive effect of the aid - Necessity of the aid)

(2009/C 55/38)

Language of the case: German

Parties

Applicant: Kronoply GmbH & Co. KG (Heiligengrabe, Germany) (represented by: R. Nierer and L. Gordalla, lawyers)

Defendant: Commission of the European Communities (represented initially by: K. Gross and T. Scharf, and subsequently by V. Kreuschitz, K. Gross and T. Scharf, acting as Agents)

Re:

Application for annulment of Commission Decision 2006/262/EC of 21 September 2005 on State aid No C 5/2004 (ex N 609/2003) which Germany is planning to implement for Kronoply (OJ 2006 L 94, p. 50).

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Kronoply GmbH & Co. KG to pay the costs.

(1) OJ C 212, 2.9.2006.

7.3.2009

Official Journal of the European Union

C 55/22

Judgment of the Court of First Instance of 21 January 2009 — giropay v OHIM (GIROPAY)

(Case T-399/06) (1)

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

(2009/C 55/39)

Language of the case: German

Parties

Applicant: giropay GmbH (Frankfurt am Main, Germany) (represented by: K. Gründig-Schnelle, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 26 October 2006 (Case R 308/2005-4) concerning an application for registration of the word mark GIROPAY as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders giropay GmbH to pay the costs.

(1) OJ C 42, 24.2.2007.

7.3.2009

Official Journal of the European Union

C 55/23

Judgment of the Court of First Instance of 21 January 2009 — Korsch v OHIM (PharmaCheck)

(Case T-296/07) (1)

(Community trade mark - Application for the Community word mark PharmaCheck - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 - Restriction of the list of goods)

(2009/C 55/40)

Language of the case: German

Parties

Applicant: Korsch AG (Berlin, Germany) (represented by: J. Grzam, initially, and J. Grzam, M. Dittmann and M. Scheffler, subsequently, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 5 June 2007 (Case R 358/2007-4) concerning an application for registration of the word sign PharmaCheck as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Korsch AG to pay the costs.

(1) OJ C 235, 6.10.2007.

7.3.2009

Official Journal of the European Union

C 55/23

Judgment of the Court of First Instance of 21 January 2009 — Hansgrohe v OHIM (AIRSHOWER)

(Case T-307/07) (1)

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

(2009/C 55/41)

Language of the case: German

Parties

Applicant: Hansgrohe AG (Schiltach, Germany) (represented by: S. Weidert and J. Zehnsdorf, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, initially, and G. Schneider and S. Schäffner, subsequently, Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 31 May 2007 (Case R 1281/2006—1) concerning the registration of the word mark ‘AIRSHOWER’ as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hansgrohe AG to pay the costs.

(1) OJ C 235, 6.10.2007.

7.3.2009

Official Journal of the European Union

C 55/23

Judgment of the Court of First Instance of 22 January 2009 — Commercy v OHIM — easyGroup IP Licensing (easyHotel)

(Case T-316/07) (1)

(Community trade mark - Invalidity proceedings - Community word mark easyHotel - Earlier national word mark EASYHOTEL - Relative ground for refusal - Lack of similarity of the goods and services - Articles 8(1)(b) and 52(1)(a) of Regulation (EC) No 40/94 - Legal aid - Application lodged by the receiver for a commercial company - Article 94(2) of the Rules of Procedure)

(2009/C 55/42)

Language of the case: German

Parties

Applicant: Commercy AG (Weimar, Germany) (represented by: F. Jaschke, initially, and S. Grosse and I. Müller, subsequently, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: easyGroup IP Licensing Ltd (London, United Kingdom) (represented by: T. Koerl and S. Möbus, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 19 June 2007 (Case R 1295/2006-2) concerning invalidity proceedings between Commercy AG and easyGroup IP Licensing Ltd.

Operative part of the judgment

The Court:

1.	Dismisses the application for legal aid;

2.	Dismisses the action;

3.	Orders Commercy AG to pay the costs.

(1) OJ C 235, 6.10.2007.

7.3.2009

Official Journal of the European Union

C 55/24

Judgment of the Court of First Instance of 14 January 2009 — Commission v Rednap

(Case T-352/07) (1)

(Arbitration clause - Contracts concluded in the context of the fourth framework programme of activities in the fields of research and technological development and demonstration - Rise and Healthline projects - Non-compliance of part of the declared expenditure with the contractual provisions - Repayment of part of the advances paid - Default proceedings)

(2009/C 55/43)

Language of the case: Swedish

Parties

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

Defendant: Rednap AB (Malmö, Sweden)

Re:

Action brought by the Commission under Article 238 EC seeking repayment of part of the advances paid by the Community under the contracts DE 3010 (DE) Rise and HC 4007 (HC) Healthline, and payment of default interest

Operative part of the judgment

The Court:

1.	orders Rednap AB to repay to the Commission the sum of EUR 334 375,49;

2.	orders Rednap to pay to the Commission default interest on the sum of EUR 219 125,22 from 1 June 2002 at the statutory rate under Greek law until the debt is totally discharged, which rate may not, however, as from 1 August 2007, exceed 11,75 % per annum;

3.	orders Rednap to pay to the Commission default interest on the sum of EUR 115 250,27 from 31 May 2002 at the statutory rate under Greek law until the debt is totally discharged, which rate may not, however, as from 1 August 2007, exceed 11,75 % per annum;

4.	orders Rednap to pay the costs.

(1) OJ C 269, 10.11.2007.

7.3.2009

Official Journal of the European Union

C 55/24

Judgment of the Court of First Instance of 20 January 2009 — Pioneer Hi-Bred International v OHIM (OPTIMUM)

(Case T-424/07) (1)

(Community trade mark - Application for the Community word mark OPTIMUM - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Obligation to state reasons - Examination of the facts of OHIM's own motion - Articles 73 and 74(1) of Regulation (EC) No 40/94)

(2009/C 55/44)

Language of the case: English

Parties

Applicant: Pioneer Hi-Bred International, Inc. (Johnston, Iowa, United States) (represented by: G. Würtenberger, R. Kunze and T. Wittmann, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 September 2007 (Case R 288/2007-2), concerning an application for registration of the word sign OPTIMUM as a Community trade mark

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Pioneer Hi-Bred International, Inc. to pay the costs.

(1) OJ C 8, 12.1.2008.

7.3.2009

Official Journal of the European Union

C 55/25

Order of the Court of First Instance of 19 December 2008 — Bomba Energia Getränkevertriebs v OHIM — Eckes-Granini (Bomba)

(Case T-372/06) (1)

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

(2009/C 55/45)

Language of the case: German

Parties

Applicant: Bomba Energia Getränkevertriebs GmbH (Rohrbach, Austria) (represented by: A. Kockläuner, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Eckes-Granini Group GmbH, formerly Eckes-Granini GmbH & Co. KG (Nieder-Olm, Germany) (represented by: W. Berlit, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 3 October 2006 (Case R 184/2005-2) relating to opposition proceedings between Eckes-Granini GmbH & Co. KG and Bomba Energia Getränkevertriebs GmbH

Operative part of the order

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

2.	Bomba Energia Getränkevertriebs GmbH and Eckes-Granini Group GmbH are ordered to bear their own costs and are also ordered to pay half of the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) each.

(1) OJ C 42, 24.2.2007.

7.3.2009

Official Journal of the European Union

C 55/25

Order of the Court of First Instance of 17 December 2008 — Portela v Commission

(Case T-137/07) (1)

(Non-contractual liability - Marketing of defective digital thermometers bearing the marking ‘CE’ - Failure to act on the part of the Commission - Causal connection - Action in part manifestly inadmissible and in part manifestly unfounded in law)

(2009/C 55/46)

Language of the case: Portuguese

Parties

Applicant: Portela — Comércio de artigos ortopédicos e hospitalares, Lda (Queluz, Portugal) (represented by: C. Mourato, lawyer)

Defendant: Commission of the European Communities (represented by: P. Guerra e Andrade and B. Schima, acting as Agents)

Re:

Claim requesting that the Court of First Instance should impose on the Commission the obligation to act in accordance with Article 14b of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1), as amended by Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (OJ 1998 L 331, p. 1), by ordering the certification company TÜV Rheinland Product Safety GmbH, through the Federal Republic of Germany, to activate, in favour of the applicant, the mandatory civil liability insurance provided for in point 6 of Annex XI to Directive 93/42, which that company took out, and, if the alleged damage cannot be remedied by the principal claim, in the alternative, a claim for compensation for the damage sustained by the applicant on account of the various omissions on the part of the Commission

Operative part of the order

1.	The action is dismissed.

2.	Portela — Comércio de artigos ortopédicos e hospitalares, Lda is ordered to pay the costs.

(1) OJ C 155, 7.7.2007.

7.3.2009

Official Journal of the European Union

C 55/26

Order of the Court of First Instance of 16 December 2008 — Gaedertz v OHIM — Living Byte Software (GlobalRemote)

(Case T-209/07) (1)

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

(2009/C 55/47)

Language of the case: German

Parties

Applicant: Johann-Christoph Gaedertz (Frankfurt am Main, Germany) (represented by: E.M. Gerstenberg, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Living Byte Software GmbH (Munich, Germany) (represented by: A. Freifrau von Welser, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 25 April 2007 (Case R 272/2005-4) relating to invalidity proceedings between Mr Johann-Christoph Gaedertz and Living Byte Software GmbH

Operative part of the order

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

2.	The applicant and the intervener are ordered to bear their own costs.

3.	The applicant is ordered to pay the defendant's costs.

(1) OJ C 183, 4.8.2007.

7.3.2009

Official Journal of the European Union

C 55/26

Order of the Court of First Instance of 18 December 2008 — Thierry v Commission

(Case T-223/07 P) (1)

(Appeal - Civil service - Officials - Promotion - 2004 promotion procedure - Dismissal of an application for a witness to be examined - Appeal manifestly inadmissible)

(2009/C 55/48)

Language of the case: French

Parties

Appellant: Michel Thierry (Luxembourg, Luxembourg) (represented by: F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: C. Berardis-Kayser and D. Martin, acting as Agents)

Re:

Appeal brought against the order of the European Union Civil Service Tribunal (Second Chamber) of 16 April 2007 in Case F-82/05 Thierry v Commission, not yet published in the ECR, and requesting that that order be set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Michel Thierry is ordered to pay his own costs as well as those incurred by the Commission in the context of the present appeal.

(1) OJ C 199, 25.8.2007.

7.3.2009

Official Journal of the European Union

C 55/26

Order of the Court of First Instance of 16 December 2008 — Italy v Parliament and Commission

(Case T-285/07) (1)

(Procedural step - Objection of inadmissibility - Partial inadmissibility of the action - Non-attributability of the contested measure to the Parliament)

(2009/C 55/49)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: I. Bruni, acting as Agent, assisted by P. Gentili, lawyer)

Defendants: European Parliament (represented by A. Lukošiūtė, R. Ignătescu and G. Mazzini, acting as Agents) and Commission of the European Communities (represented by: J. Currall and A. Aresu, acting as Agents)

Intervener in support of the applicant: Hellenic Republic (represented by: S. Vodina and M. Michelogiannaki, acting as Agents)

Re:

Annulment of the notice of open competition EPSO/AD/95/07 to constitute a reserve pool for 20 posts of Administrator (AD5) in the field of ‘Information Science (Library/Documentation)’, published in the Official Journal of the European Union of 8 May 2007 (OJ 2007 C 103 A, p. 7)

Operative part of the order

1.	The action is dismissed as inadmissible in so far as it is directed against the Commission.

2.	The Italian Republic shall pay the costs incurred by the Commission, in addition to bearing the costs which it has itself incurred in this action in so far as it is directed against the Commission.

(1) OJ C 116, 9.5.2008.

7.3.2009

Official Journal of the European Union

C 55/27

Order of the Court of First Instance of 16 December 2008 — Italy v EESC and Commission

(Case T-117/08) (1)

(Procedural issue - Objection of inadmissibility - Partial inadmissibility of the action - Lack of imputability of acts to the Commission)

(2009/C 55/50)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: I. Bruni, acting as Agent, and P. Gentili, Avvocato dello Stato)

Defendants: European Economic and Social Committee (represented by M. Bermejo Garde, acting as Agent, and A. Dal Ferro, lawyer) and Commission of the European Communities (represented by J. Currall, acting as Agent);

Intervener in support of the applicant: Kingdom of Spain (represented by F. Díez Moreno, Abogado del Estado)

Re:

Annulment of Vacancy Notice No 73/07 concerning the post of Secretary-General (grade A* 16) to the EESC, published in the Official Journal of the European Union on 28 December 2007 (OJ 2007 C 316 A, p. 1), and the corrigendum to that notice published in the Official Journal of the European Union on 30 January 2008 (OJ 2008 C 25 A, p. 21).

Operative part of the order

1.	The application is rejected as inadmissible in so far as it is directed against the Commission.

2.	The Italian Republic is ordered to pay, in addition to the costs it incurred in the context of the present action in so far as it is directed against the Commission, the costs incurred by the Commission.

(1) OJ C 116, 9.5.2008.

7.3.2009

Official Journal of the European Union

C 55/27

Order of the President of the Court of First Instance of 23 December 2008 — AES-Tisza v Commission

(Case T-468/08 R)

(Application for interim measures - State aid - Commission decision declaring aid awarded by the Republic of Hungary to certain electricity producers through power purchase agreements to be incompatible with the common market - Application for suspension of operation - Lack of urgency - Weighing up of interests)

(2009/C 55/51)

Language of the case: English

Parties

Applicant: AES-Tisza Erőmű kft (AES-Tisza kft) (Tiszaújváros, Hungary) (represented by: T. Ottervanger and E. Henny, lawyers)

Defendant: Commission of the European Communities (represented by: L. Flynn, N. Khan and K. Talabér-Ritz, acting as Agents)

Re:

Application for suspension of the operation of Article 1 of Commission Decision C(2008) 2223 final of 4 June 2008 on the State aid awarded by the Republic of Hungary through power purchase agreements.

Operative part of the order

1.	The application for interim relief is dismissed.

2.	The costs are reserved.

7.3.2009

Official Journal of the European Union

C 55/28

Action brought on 8 December 2008 — Tuzzi fashion v OHIM — El Corte Inglés (Emidio Tucci)

(Case T-535/08)

(2009/C 55/52)

Language in which the application was lodged: English

Parties

Applicant: Tuzzi fashion GmbH (Fulda, Germany) (represented by: R. Kunze and G. Würtenberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2008 in case R 1561/2007-2; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Emidio Tucci’, for goods in class 25

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

Mark or sign cited: German trade mark registration No 1 078 843 of the word mark ‘TUZZI’ for goods in class 25; International trade mark registration No 496 835 with effect in Austria, France, the Benelux countries and Poland of the word mark ‘TUZZI’ for goods in class 25; Company name ‘TUZZI FASHION GMBH’ used in the course of trade in Germany for clothing.

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned; Infringement of Article 73 of Council Regulation 40/94 as the Board of Appeal failed to address in a comprehensive manner the arguments put forward by the applicant and to objectively state the reasons on which its decision has been based; Infringement of Article 74 of Council Regulation 40/94 as the Board of Appeal failed to restrict itself in its examination to the facts, evidence and arguments put forward by the parties; Infringement of Article 79 of Council Regulation 40/94 since in its assessment of the defence of abuse of rights raised by the applicant the Board of Appeal failed to take into account general principles of procedural law recognized in the Member States.

7.3.2009

Official Journal of the European Union

C 55/28

Action brought on 9 December 2008 — Huvis v Council

(Case T-536/08)

(2009/C 55/53)

Language of the case: English

Parties

Applicant: Huvis Corporation (Seoul, Republic of Korea) (represented by: J.-F. Bellis, F. Di Gianni, R. Antonini, lawyers)

Defendant: Council of the European Union

Form of order sought

—

annul Council Regulation (EC) No 893/2008 of 10 September 2008, maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People's Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (1), insofar as it does not repeal the anti-dumping duty applicable to the applicant as of 29 December 2006, that is, the date on which imports of polyester staple fibres originating in Taiwan and Malaysia were subjected to provisional anti-dumping duties, which the Commission decided not to collect in its Decision No 2007/430/EC of 19 June 2007 (2);

—	order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

By means of this application the applicant, a Korean-based company, seeks partial annulment of Council Regulation No 893/2008 insofar as it does not repeal the anti-dumping duty applicable to the polyester staple fibres (PSF) manufactured by the applicant and originating in Korea as of 29 December 2006. The applicant submits that the same treatment as was applied in Commission Decision No 2007/430/EC to the PSF originating in Taiwan and Malaysia should be applied to the PSF originating in Korea. Therefore, in the applicant's view, the anti-dumping duty should be repealed as of the same date with respect to the PSF originating in Korea.

The applicant puts forward two pleas in law in support of its claims.

The applicant submits that by maintaining anti-dumping measures with respect to imports of PSF originating in Korea while the imports of PSF from Malaysia and Taiwan were not subjected to anti-dumping measures the European institutions violated the fundamental principle of non-discrimination. The applicant contests the three arguments put forward by the Council to justify different treatment. The fact that the complaint in the case of PSF originating in Malaysia and Taiwan was withdrawn and no definitive finding was made by the Council cannot, in the applicant's opinion, justify the discriminatory treatment of the case of PSF originating in Korea. The applicant contests as well that the fact that the Community interest test applied in the case of PSF originating in Malaysia and Taiwan was different from the Community test applied in the case of PSF originating in Korea could justify the discriminatory treatment of the latter. The applicant further submits that, contrary to Council's findings, the fact that different conclusions regarding Community interest were reached in the investigations concerning Malaysia and Taiwan, on the one hand, and Korea, on the other hand, could neither justify the discriminatory treatment.

The applicant further claims that the decision that termination of anti-dumping measures on imports of PSF manufactured and exported by the applicant is not justified on Community interest grounds is vitiated by fundamental contradictions and incoherencies.

(1) OJ L 247, p. 1.

(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating the anti-dumping proceeding concerning imports of synthetic staple fibres of polyesters (PSF) originating in Malaysia and Taiwan and releasing the amounts secured by way of the provisional duties imposed (OJ L 160, p. 30).

7.3.2009

Official Journal of the European Union

C 55/29

Action brought on 9 December 2008 — Cixi Jiangnan Chemical Fiber and Others v Council

(Case T-537/08)

(2009/C 55/54)

Language of the case: English

Parties

Applicant(s): Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd, Zhejiang Anshun Pettechs Fibre Co. Ltd (China) (represented by: J.-F. Bellis, lawyer, G. Vallera, Barrister)

Defendant: Council of the European Union

Form of order sought

—

annul Council Regulation (EC) No 893/2008 of 10 September 2008, maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People's Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (1), with retroactive effect as of 29 December 2006, that is, the date on which imports of polyester staple fibres originating in Taiwan and Malaysia were subjected to provisional anti-dumping duties, which the Commission decided not to collect in its Decision No 2007/430/EC of 19 June 2007 (2);

—	order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

By means of this application the applicants, China-based companies, seek annulment of Council Regulation No 893/2008 maintaining anti-dumping measures with respect to, inter alia, the imports of polyester staple fibres (PSF) manufactured by the applicants and originating in China. The applicants submit that the same treatment as was applied in Commission Decision No 2007/430/EC to the PSF originating in Taiwan and Malaysia should be applied to the PSF originating in China. Therefore, the anti-dumping duty should be repealed as of the same date, i.e. 29 December 2006, with respect to the PSF originating in China.

The pleas in law and main arguments put forward by the applicants are identical to those relied on in case T-536/08, Huvis v Council.

(1) OJ L 247, p. 1.

7.3.2009

Official Journal of the European Union

C 55/29

Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)

(Case T-538/08)

(2009/C 55/55)

Language in which the application was lodged: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by M. Kinkeldey and A. Bognár, 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: Koki Diskontläden GmbH (Oberhausen, Germany)

Form of order sought

—	annul the decision of the Fourth Board of Appeal of OHIM of 6 October 2008 in Case No R 744/2008-4 and

—	order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘inéa’ in the colours blue, pink and white for goods in Classes 3, 5 and 16 (application No 4 462 826).

Proprietor of the mark or sign cited in the opposition proceedings: Kodi Diskontläden GmbH.

Mark or sign cited in opposition: Trade mark ‘MINEA’ (No 303 61 428,5) for goods in Classes 8, 9 and 16, the opposition being directed against registration for goods in Class 16.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Decision of the Opposition Division annulled.

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

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

7.3.2009

Official Journal of the European Union

C 55/30

Action brought on 15 December 2008 — RWE and RWE Dea v Commission

(Case T-543/08)

(2009/C 55/56)

Language of the case: German

Parties

Applicants: RWE AG (Essen, Germany) and RWE Dea AG (Hamburg, Germany) (represented by: C. Stadler and M. Röhrig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	declare Article 1 of the decision to be void, in so far as it finds that there was an infringement by the applicants of Article 81(1) EC and Article 53 of the EEA Agreement;

—	declare Article 2 of the decision to be void, in so far as it imposes a fine of EUR 37 440 000 jointly and severely on the applicants;

—	in the alternative, make an appropriate reduction in the fine imposed jointly and severely on the applicants in Article 2 of the decision;

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

Pleas in law and main arguments

The applicants are challenging Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle Waxes, in which the defendant established that certain undertakings, including the applicants, had participated in a continuing agreement and/or concerted practice in the paraffin waxes sector, contrary to Article 81(1) EC and Article 53 of the Agreement on the European Economic Area.

The applicants rely on the following three pleas in law in support of their action.

In their first plea, the applicants claim that the defendant breached Article 81(1) EC and Article 23(2)(a) of Regulation (EC) No 1/2003 (1) by erroneously applying the notion of undertaking to the detriment of the applicants. The defendant held the applicants responsible for infringements by the former DEA Mineraloel AG and/or — after re-organisation of the company into an equally owned joint venture with Shell — the Shell & Dea Oil GmbH and, for that reason, imposed a fine on them without having established that they formed a single economic unit.

Alternatively, the applicants claim in their second plea that the defendant did not properly apply the Leniency Notice of 2002 and thereby infringed the principle of equal treatment, because it did not extend the leniency application for the paraffin wax business made by the former DEA Mineraloel AG and/or Shell & Dea Oil GmbH to the applicants. By so doing, the defendant contradicts its own view that the paraffin wax business was specifically part of the same economic unit as the applicants in the period from 3 September 1992 to 30 July 2002. Had the Leniency Notice been correctly applied, the defendant should have granted the applicants full immunity from any fine.

Alternatively, the applicants claim in their third plea that the defendant infringed fundamental principles governing the assessment of fines, in particular the principles of equal treatment and proportionality, and in that way infringed Article 23(2) and (3) of Regulation No 1/2003. The defendant incorrectly applied the 2006 Guidelines on fines by establishing the relevant turnover on the basis of a reference period which was not sufficiently representative, and thus determined a basic amount which was not proportionate to the severity of the infringement alleged against the applicants, and treated the applicants, by comparison with other involved parties, including Shell, in a discriminatory manner without objective grounds.

(1) 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).

7.3.2009

Official Journal of the European Union

C 55/31

Action brought on 15 December 2008 — Hansen & Rosenthal and H & R Wax Company Vertrieb v Commission

(Case T-544/08)

(2009/C 55/57)

Language of the case: German

Parties

Applicants: Hansen & Rosenthal KG (Hamburg, Germany) and H & R Wax Company Vertrieb GmbH (Hamburg, Germany) (represented by: J. Schulte and A. Lober, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle Waxes of the Commission of the European Communities in so far as it relates to the applicants;

—	in the alternative, cancel the fine imposed on the applicants or, in the further alternative, reduce that fine;

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

Pleas in law and main arguments

The applicants are challenging Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle Waxes, in which the defendant found that certain undertakings, including the applicants, had participated in a continuing agreement and/or concerted practice in the paraffin waxes sector, contrary to Article 81(1) EC and Article 53 of the Agreement on the European Economic Area.

The applicants rely on six pleas in law in support of their action.

By the first plea, the applicants assert that the decision is vitiated by a serious lack of reasoning. For that reason, it should be annulled by reason of infringement of Article 81 EC and consequential breach of the applicants' rights of defence.

By the second plea, the applicants claim that the conditions for an infringement of Article 81 EC have not been met. The applicants and the other paraffin producers did not in any way have a common goal. The applicants did not participate in anti-competitive agreements or concerted practices. The dispatch of letters detailing price increases therefore did not serve to give effect to anti-competitive agreements or consultations, but rather took place within the context of relations with suppliers. Furthermore, no restriction of competition resulted otherwise from the exchange of information.

By way of alternative submissions, the applicants take issue, in their third to sixth pleas in law, with the level of the fine imposed on them.

—

The Commission, they submit, unlawfully applied Guidelines on fines which were adopted only in 2006, even though the alleged offence was terminated in early 2005. In so doing, the Commission breached the principle that the administration is bound by its own acts, the prohibition of retroactive effect and the principle of legal certainty.

—

By their fourth plea in law, the applicants submit that the Commission erred in its calculation of the turnover relevant to the fine. In the relevant years 2002 to 2004, the applicants achieved a turnover with paraffin products of only EUR 18,97 million. The Commission, however, based its calculation of the fine on a turnover of EUR 26 million.

—

By their fifth plea, the applicants assert that the Commission also incorrectly assessed the severity of the offence. The fixing, at 17 %, of the proportion of the turnover relevant to the offence and of the entry fee is at variance with the principle of proportionality. Furthermore, insufficient account was taken of the size and importance of the undertakings.

—

By their sixth plea, the applicants contend that the Commission erred in its determination of the duration of the infringement alleged against the applicants. The Commission, they argue, has failed to prove that the applicants participated in the alleged restriction of competition for the entire period in respect of which they stand accused.

7.3.2009

Official Journal of the European Union

C 55/31

Action brought on 12 December 2008 — X-Technology Swiss v OHIM (representation of a sock)

(Case T-547/08)

(2009/C 55/58)

Language in which the application was lodged: German

Parties

Applicant: X-Technology Swiss GmbH (represented by A. Herbertz and R. Jung, lawyers)

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 6 October 2008 in Case R 846/2008-4;

—	order OHIM to bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark as ‘other mark — positional mark’ of the colour ‘orange (Pantone 16-1359 TPX)’ for goods in Class 25 (application No 5 658 117).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94, (1) since the trade mark applied for fulfils the minimum requirement as to distinctive character.

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

7.3.2009

Official Journal of the European Union

C 55/32

Action brought on 15 December 2008 — Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission

(Case T-550/08)

(2009/C 55/59)

Language of the case: German

Parties

Applicant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG (Hamburg, Germany) (represented by: U. Itzen and J. Ziebarth, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested decision in so far as it relates to the applicant;

—	in the alternative, reduce as appropriate the level of the fine imposed on the applicant in the contested decision;

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

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle Waxes, in which the defendant found that certain undertakings, including the applicant, had participated in a continuing agreement and/or concerted practice in the paraffin waxes sector, contrary to Article 81(1) EC and Article 53 of the Agreement on the European Economic Area.

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

By its first plea in law, the applicant claims that there has been an infringement of the duty to state reasons under Article 253 EC and an infringement of the rights of the defence inasmuch as the appraisal of evidence carried out by the Commission in the contested decision does not in fact specifically indicate which acts contributing to the offence are to be attributed to the applicant. The broad-brush appraisal of the evidence carried out by the Commission relates to, besides the applicant, also other companies, the actions of which cannot be attributed to the applicant. In light of the unclear appraisal of the evidence, there is an infringement of the rights of the defence, as the Commission is under an obligation to indicate, in a clear and unequivocal manner, which contributory acts it attributes to which undertakings and the consequences thereof.

The applicant further claims that it was not involved in any activity contrary to Article 81 EC. Not only did the Commission fail, in formal terms, to carry out a proper appraisal of the evidence, but even a subsidiary substantive examination of the evidence indicates that no allegation made against the applicant was substantiated. The conclusion that the applicant infringed the law on cartels cannot be drawn from the meetings detailed and the evidence thereof provided in the framework of the appraisal of the evidence. This is especially true also in light of the fact that only a limited allegation was made from the outset in relation to the applicant. That fact, however, was not taken into consideration when the evidence was being appraised; instead, and to the further detriment of the applicant, account was taken of evidence which might prove potential offences on the part of third parties but in which the applicant was not involved.

By its second plea in law, the applicant claims that the limitation period had expired. It claims that it had already, at the beginning of 2000, transferred the distribution business in question to another company, with the result that the first measures in early 2005 that stopped the limitation period running could no longer have led to action being taken against the applicant in respect of an old offence.

7.3.2009

Official Journal of the European Union

C 55/32

Action brought on 15 December 2008 — H & R ChemPharm v Commission

(Case T-551/08)

(2009/C 55/60)

Language of the case: German

Parties

Applicant: H & R ChemPharm GmbH (Salzbergen, Germany) (represented by: M. Klusmann and S. Thomas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested decision in so far as it relates to the applicant;

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

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

Pleas in law and main arguments

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

In its first plea, the applicant alleges infringement of its rights of defence inasmuch as the contested decision does not differentiate between it and other companies which were fined separately, but instead refers uniformly to ‘H & R/Tudapetrol’. The applicant asserts that it does not understand which specific acts contributing to the offence are to be attributed to it. Its rights of defence are thereby infringed in so far as the grounds of complaint and the decision must indicate unambiguously which specific acts lead to the allegation of a breach of law and the resulting imposition of a fine.

In the alternative, the applicant argues in its second plea in law that there is no evidence that it acted unlawfully. The Commission, on the basis of its broad-brush appraisal of the evidence in relation to all of the undertakings to which the decision was addressed, failed to have regard for the fact that there was no evidence of an infringement on the part of the applicant. The applicant submits that the Commission did not carry out a sufficiently discriminating and individual appraisal of the evidence which could, and would necessarily, have shown that the evidence adduced was insufficient to establish that the applicant had committed an offence.

In the further alternative, the applicant claims in its third plea in law that, in the calculation of the fine, the initial amount was erroneously set too high.

In the further alternative, the applicant claims in its fourth plea in law that the principle of proportionality and the prohibition of discrimination were breached by reason of the erroneous calculation of the fine. Specifically, the applicant asserts that an error of assessment was made when fixing at 17 % the percentage of turnover for the severity of the offence and the entry fee and that the level of the fine was disproportionate as a result of the disproportionate account taken of the size of the undertaking. Finally, the applicant points out that the 2006 Guidelines on fines were unlawfully applied retroactively in the present case, which predates those Guidelines.

7.3.2009

Official Journal of the European Union

C 55/33

Action brought on 17 December 2008 — Commission v Domótica

(Case T-552/08)

(2009/C 55/61)

Language of the case: Portuguese

Parties

Applicant: Commission (represented by A.M. Rochaud-Jöet and S. Petrova, Agents, assisted by G. Anastácio and A.R. Andrade, lawyers)

Defendant: Domótica, Estudo e Projecto de Edifícios Inteligentes, Lda (Lisbon, Portugal)

Form of order sought

—

An order that the defendant should pay the applicant the sum of EUR 124 319,22, being the repayment of an advance paid by the applicant in performance of contract No BU/466/94 PO/ES, concluded in connection with the Thermie programme and terminated on grounds of the failure of the defendant and other cocontractors to perform their contractual obligations, with an increase of EUR 48 000 by way of default interest accrued until 30 September 2008 and interest still to fall due until full and final payment;

—	An order that the defendant should pay the costs.

Pleas in law and main arguments

On 17 January 1995 the Commission of the European Communities concluded Thermie contract No BU/466/94 PO/ES with the defendant, with the teaching hospitals of Coimbra and with the company Técnicas Reunidas S.S., pursuant to Regulation (EEC) No 2008/90 (1).

The defendant was appointed to be project co-ordinator and took on responsibility for submitting to the Commission the necessary documents, and to act as link between the contractors and the Commission. The liability of the cocontractors was joint and several.

On 10 February 1995, in accordance with what had been agreed, the Commission paid the advance of 30 %, that is to say, EUR 176 693.

On 24 May 2000 the Commission rescinded the contract for just cause (having put the defendant on notice), putting forward the following failures to perform contractual obligations:

—	delays in performance not communicated timeously to the Commission;

—	Domótica's inability to begin to perform the contract (admitted by the defendant);

—	failure to send to the Commission financial and technical reports in good time and due form;

—	failure to conclude work implementing the project within the original period, or within the extension subsequently granted (31 August 2000).

As a result of the wrongful conduct of the cocontractors, the latter failed to fulfil their contractual obligations.

The contract provided that it was possible for the Commission to demand repayment, in whole or in part, of its financial assistance, together with interest in the case of non-performance by the cocontractors.

The Commission is entitled to repayment of EUR 172 499,22, equivalent to the value of the original amount advanced, together with interest accrued, as from 10 February 1995, the costs of part performance incurred by the defendant and accepted by the Commission having been deducted, to which sum must be added interest not yet fallen due.

(1) Council Regulation (EEC) No 2008/90 of 29 June 1990 concerning the promotion of energy technology in Europe (thermie programme) (OJ 1990 L 185, p. 1).

7.3.2009

Official Journal of the European Union

C 55/34

Action brought on 8 December 2008 — Evropaïki Dynamiki/Commission

(Case T-554/08)

(2009/C 55/62)

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

—

annul DG TAXUD's decision to reject the bid of the applicant, filed in response to the open Call for Tender TAXUD/2007/AO-005 (TIMEA) for the ‘Provision of services for the Community computer applications in the customs, excise and taxation areas’ (OJ 2008/S 203-268728) which was communicated to the applicant by letter dated 26 September 2008 and all further related decisions of the Commission including the one to award the contract to the successful contractor;

—	order DG TAXUD to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 7 638 125;

—	order DG TAXUD to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

By means of its application the applicant seeks the annulment pursuant to Article 230 EC of the European Commission's (DG TAXUD) decision to reject the bid filed by the applicant in response to the open Call for Tenders TAXUD/2007/AO-005(TIMEA) for the ‘Provision of services for the Community computer applications in the customs, excise and taxation areas’ (OJ 2008/S 203-268728) which was communicated to the applicant by letter dated 26 September 2008, as well as the award of damages pursuant to Article 235 EC.

The applicant claims that the Evaluation Committee committed various manifest errors of assessment with regards to the evaluation of the tender. According to the applicant, the Evaluation Committee deviated from the standard policy of the Commission and ignored the provisions included in the tender specifications of TIMEA, which suggest that the contracting authorities should contact the tenderer in the context of the selection phase of a Call for Tenders, and ask for additional information or clarifications. It is further submitted that Article 100 of the Financial Regulation and the principles of good administration and of legitimate expectations were breached by the contracting authority. In addition, the applicant claims that the contracting authority misused its powers and violated the principles of transparency and equal treatment provided for in Article 93(1) of the Financial Regulation.

The applicant claims that the defendant failed to provide the applicant with an adequate analysis of the outcome of the verifications carried out further to the applicant's comments on the evaluation report.

The applicant contends that the defendant used abusively the selection criteria in order to de-select the applicant's tender. By doing so, it infringed Articles 134(2) and 148(3) of Commission Regulation (EC, Euratom) No 2342/2002 (1), as well as Article 32(2) of Directive 92/50 (2).

(1) 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 2002 L 357, p. 1).

(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

7.3.2009

Official Journal of the European Union

C 55/35

Action brought on 16 December 2008 — iPublish Ganske Interactive Publishing v OHIM (representation of a navigational device)

(Case T-555/08)

(2009/C 55/63)

Language in which the application was lodged: German

Parties

Applicant: iPublish Ganske Interactive Publishing GmbH (Hamburg, Germany) (represented by V. Knies, 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 3 October 2008 in Case R 709/2008-4 and

—	order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark representing a navigational device in the colours black and blue, characterised inter alia by a blue lateral stripe, for goods and services in Classes 9, 39 and 42 (application No 6 092 639).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

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

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

7.3.2009

Official Journal of the European Union

C 55/35

Action brought on 17 December 2008 — Slovenská pošta v Commission

(Case T-556/08)

(2009/C 55/64)

Language of the case: English

Parties

Applicant: Slovenská pošta a.s. (Banská Bystrica, Slovak Republic) (represented by: O. Brouwer, C. Schillemans, M. Knapen, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks annulment pursuant to Article 230 EC of Commission Decision C(2008) 5912 final of 7 October 2008 (Case COMP/39.562 — Slovakian Postal Law) by which the Commission found Slovakian postal legislation relating to hybrid mail services contrary to Article 86(1) read in conjunction with Article 82 EC to the extent that it reserves to the applicant the delivery of hybrid mail items.

The applicant puts forward four pleas in law in support of its claims.

First, it submits that the Commission violated the Community law principle of sound administration by failing to duly investigate all the facts and interests involved as, in the applicant's opinion, the contested decision is based on a number of assumptions. The applicant further states that the Commission violated the duty to state adequate reasons as laid down in Article 253 EC.

Second, the applicant claims that the Commission violated the applicant's right to be effectively heard.

Third, it contends that the Commission committed manifest errors in assessment and interpretation, in fact and in law, of the lawfulness of the granting of exclusive rights in the postal sector as a result of which it gave a wrong application to Articles 86 EC and 82 EC.

Fourth, the applicant submits that by adopting a fundamentally different and unprecedented approach with regard to the definition of the relevant market, the Commission has violated the principles of legal certainty and legitimate expectations.

7.3.2009

Official Journal of the European Union

C 55/35

Action brought on 18 December 2008 — mPAY24 v OHIM — Ultra (MPAY)

(Case T-557/08)

(2009/C 55/65)

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: H. Z. Zeiner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ultra d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

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 September 2008 in case R 221/2007-1 to the extent that the opposition filed by the applicant has been rejected; and

—	Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘MPAY’, for goods and services in classes 9, 35, 36, 37, 38 and 42 — application No 3 587 896

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

Mark or sign cited: Community trade mark registration No 2 061 656 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38; Austrian trade mark registration No 200 373 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark application in its entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned.

7.3.2009

Official Journal of the European Union

C 55/36

Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 14 October 2008 in Case F-74/07 Meierhofer v Commission

(Case T-560/08 P)

(2009/C 55/66)

Language of the case: German

Parties

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

Other party to the proceedings: S. Meierhofer (Munich, Germany)

Form of order sought by the appellant

—	Set aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F-74/07 Meierhofer v Commission;

—	Each party to bear its own costs.

Pleas in law and main arguments

The appeal is brought against the judgment of the Civil Service Tribunal of the European Union of 14 October 2008 in Case F-74/07 Meierhofer v Commission, in which the Tribunal set aside the decision of the selection board in Competition EPSO/AD/26/05 of 19 June 2007 for infringement of the duty to state reasons.

By the contested decision, the candidate's request for review of the selection board's decision that the candidate had not passed the oral test of the competition was dismissed. The candidate had fallen short of the required minimum mark in the oral test by half a point. According to the competition notice, the oral test was assessed by a single overall mark.

The appeal is directed against the requirements of the duty to state reasons on a selection board and the review criteria of the Community judicature. The Commission challenges in particular the conclusion of the Civil Service Tribunal that in ‘particular circumstances’, for example in the case of a mark just under the minimum number of points, the duty to state reasons was not satisfied by communicating to the candidate excluded at the oral stage only a single mark leading to exclusion.

The Commission argues that that approach leads to legal uncertainty:

—

First, the duty to state reasons must, in accordance with consistent case-law, be reconciled with the preservation of confidentiality which applies to the work of a selection board pursuant to Article 6 of Annex III to the Staff Regulations, and which forbids the dissemination of the opinions of individual members of the selection board and the disclosure of details in relation to the assessment of the applicants personally or in comparison with others.

—	Second, the comparison drawn by the Tribunal with cases concerning access to documents is inappropriate, since Article 6 of Annex III makes no provision for exceptional cases or the balancing of interests.

—

Third, the Tribunal overlooked the case-law according to which the duty to state reasons must stand in a proportionate relationship to the measure in question, and is simply designed to enable the Tribunal to review the legality of the decision. Since subsequent review of an oral test by the Community judicature is impossible in the nature of things, the latter has hitherto essentially confined its review to compliance with the competition regulations and the advertising of the competition.

The judgment creates further legal uncertainty in relation to the distinction between various types of procedural measures, concerning requests for the production of confidential documents by an entity and the circumstances in which such requests may be refused (measures of organisation of procedure and orders for evidence to be taken). In the present case, the Tribunal also fundamentally misinterpreted the Commission's position, as the latter did not in any way refuse such production. The Commission merely explained that it could not produce the relevant documents on the basis of the measures of organisation of procedure ordered by the Tribunal, but was awaiting an order (for the production of evidence) of the Tribunal.

7.3.2009

Official Journal of the European Union

C 55/37

Action brought on 15 December 2008 — Bactria and Gutknecht v Commission

(Case T-561/08)

(2009/C 55/67)

Language of the case: English

Parties

Applicants: Bactria Industriehygiene-Service Verwaltungs GmbH (Kirchheimbolanden, Germany), Jürgen Gutknecht (Kirchheimbolanden, Germany) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	declare the application admissible and well founded;

—

order the European Community to pay the damages suffered by the applicants as a result of (i) the unlawful adoption of Article 6(2) of the First Review Regulation together with the Second Review Regulation and Commission Regulation 1451/2007; or, in the alternative (ii) the Commission's failure to take the necessary measures to ensure that the applicants' data protection rights under the Directive 98/8/EC were maintained and free-riding avoided during the review programme, estimated at a total amount of EUR 3 912 569, or other amount as further established by the applicants in the course of these proceedings or by the Court ex aequo et bono;

—

in the alternative, rule on interlocutory judgment that the European Community is obliged to make reparation for the loss suffered and order the parties to produce to the Court within a reasonable period from the date of the judgment figures as to the amount of the compensation agreed between the parties or, failing agreement, order the parties to produce to the Court within the same period their submissions with detailed figures in support;

—	order the European Community to pay the applicants' compensatory interest at the default rate from the date of the losses suffered;

—	order the European Community to pay default interest of 8 % or any other appropriate rate to be determined by the Court, calculated on the amount payable as from the date of the Court's judgment until actual payment; and

—	order the Commission to pay all costs of these proceedings.

Pleas in law and main arguments

By means of their application, the applicants claim compensation, pursuant to Article 235 EC, for the damages allegedly suffered form the adoption of Article 6(2) of Commission Regulation 1896/2000 of 7 September 2000 (1) on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market (2) together with Commission Regulation 2032/2003 (3) and Commission Regulation 1451/2007 (4).

In the alternative, the applicants claim compensation for the damages allegedly suffered from the failure of the Commission to ensure protection of the data protection rights granted to notifiers pursuant to Article 12 of Directive 98/8/EC. They further submit that the damage suffered by the applicants as a result of the Commission's unlawful conduct consists of a significant reduction in the value of the first applicant's business and the lost profit (lucrum cessans) which the first applicant would have made by selling the biocidal products at issue an the active substances contained in those biocidal products but for the conduct of the Community.

In addition to the damage allegedly suffered by the second applicant as a shareholder of and therefore owner of the business of the first applicant, it is submitted that the second applicant has also suffered the loss of his livelihood. Finally, the applicants claim compensatory interest at the default rate from the date the losses claimed occurred.

(1) Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products (OJ 2000 L 228, p. 6).

(2) Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1).

(3) Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1).

(4) Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market (OJ 2007 L 325, p. 3).

7.3.2009

Official Journal of the European Union

C 55/38

Action brought on 17 December 2008 — Corsica Ferries France v Commission

(Case T-565/08)

(2009/C 55/68)

Language of the case: French

Parties

Applicant: Corsica Ferries France SAS (Bastia, France) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

—	declare the present action admissible;

—	annul the Commission Decision of 8 July 2008 in relation to restructuring aid which France plans to grant to Société Nationale Maritime Corse-Méditerranée (SNCM);

—	order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 3182 final of 8 July 2008, in which the Commission had stated that:

—	the compensation paid by the French Republic to Société Nationale Maritime Corse-Méditerranée (‘SNCM’), amounting to EUR 53.48 million in respect of public service obligations, constitutes illegal State aid which is nevertheless compatible with the common market;

—

the negative selling price of SNCM of EUR 158 million; the implementation, by Compagnie Générale Maritime et Financière (‘CGMF’), of social measures in respect of employees in the amount of EUR 38.5 million; and the joint and concomitant re-capitalisation of SNCM by CGMF in the amount of EUR 8.75 million do not constitute State aid; and

—	restructuring aid amounting to EUR 15.81 million which the French Republic granted to SNCM constitutes illegal State aid which is nevertheless compatible with the common market;

In support of its action, the applicant puts forward two pleas in law alleging:

—	failure to state reasons and breach of the applicant's rights of defence and its right to an effective judicial remedy, insofar as too much of the data and information in the contested decision was blacked out for its content, reasoning and scope to be understood;

—

infringement of Articles 87 EC and 88 EC and their implementing rules, in particular the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, resulting from an inaccurate and/or incomplete assessment regarding the capital contribution of EUR 53.48 million under public service compensation; the sale of SNCM at a negative selling price of EUR 158 million; the capital contribution by CGMF amounting to EUR 8.75 million; social measures amounting to EUR 38.5 million; and the balance of EUR 22.5 million notified under restructuring aid.

7.3.2009

Official Journal of the European Union

C 55/38

Action brought on 17 December 2008 — Total Raffinage Marketing v Commission

(Case T-566/08)

(2009/C 55/69)

Language of the case: French

Parties

Applicant: Total Raffinage Marketing SA (Puteaux, France) (represented by: A. Vandencasteele, C. Falmagne, C. Lemaire and S. Naudin, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

—	annul, in part, Articles 1 and 2 of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes);

—	very substantially reduce the amount of the fine imposed on Total R.M. by Article 2 of that decision;

—	order the Commission to pay all of the costs.

Pleas in law and main arguments

By its present action, the applicant seeks the annulment, in part, of Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle waxes, in which the Commission found that certain undertakings, including the applicant, infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area, by price-fixing and sharing markets in paraffin waxes in the European Economic Area (EEA), and slack wax in Germany.

In support of its action, the applicant puts forward 11 pleas in law alleging infringement of: Article 81 EC; the duty to state reasons; the 2006 Guidelines on the method of setting fines (1); and the principles of proportionality, the presumption of innocence, legal certainty, equal treatment and that the penalty should fit the offence, in that the Commission:

—	held that the practices relating to waxes and paraffin, on the one hand, and to slack wax, on the other, constituted a single and continuous infringement, and held the practices in relation to slack wax to be an agreement;

—

wrongly found a single and continuous infringement consisting of an agreement for price-fixing; market and/or customer sharing, even if it was merely an exchange of information concerning the state of the paraffin market; prices and future strategies in relation to tariffs; the customers and the volumes which could be attributed to the applicant;

—

first, misinterpreted the Community case-law on undertakings publicly distancing themselves by holding the applicant responsible for the entire duration of the wax and paraffin aspect of the cartel, although the applicant had ceased to participate in ‘technical meetings’ after the meeting of 11 and 12 May 2004, that is to say, nearly one year before the end of the infringement and, second, allowed the intended withdrawal of Repsol from the cartel before the end of the infringement, and not that of the applicant, although the applicant was in an equivalent situation;

—	required the applicant to prove that it publicly distanced itself from the cartel;

—	did not take account of the applicant's failure to implement the cartel;

—	used the value of sales from the last three financial years in which the applicant had participated in the cartel, instead of the value of sales for the last year in which it had participated;

—	found a percentage of the value of sales for the slack wax aspect of the infringement which was too high;

—	applied the method for setting the fine laid down in point 24 of the Guidelines which is contrary to Article 23(3) of Regulation No 1/2003 and to the principles of proportionality, equal treatment and presumption of innocence;

—	applied an additional amount for deterrent effect without, however, providing sufficient reasons for that;

—	imposed a fine representing 410 % of the turnover obtained in one year by the applicant on the relevant market;

—	held the parent company, Total SA, responsible for the applicant's behaviour.

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

7.3.2009

Official Journal of the European Union

C 55/39

Appeal brought on 19 December 2008 by Bart Nijs against the judgment of the Civil Service Tribunal delivered on 9 October 2008 in Case F-49/06 Nijs v Court of Auditors

(Case T-567/08 P)

(2009/C 55/70)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger, lawyer)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

—	declare the appeal admissible;

—	declare the appeal founded;

—	accordingly, annul the order of 9 October 2008 in Case F-5/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

By this appeal, the applicant seeks annulment the judgment of the Civil Service Tribunal (the Tribunal) of 9 October 2008 in Case F-49/06 Nijs v Court of Auditors dismissing, as partially inadmissible and partially unfounded, the action for, first, annulment of the decision not to promote the applicant to grade A*11 for the 2005 promotion procedure and, second, damages.

In support of his appeal, the applicant puts forward four grounds of appeal:

—	distortion of the application and the reply inasmuch as the judgment under appeal replaces a plea alleging that there was no decision by the appointing authority, implying a total lack of motivation, by a completely different plea;

—	disregard and/or distortion of the evidence, the Tribunal having excluded it;

—	wrong attribution of the burden of proof inasmuch as the Tribunal should have required proof of the defendant's allegations;

—	breach of the principle of the presumption of innocence concerning the order that the appellant pay the costs at first instance.

7.3.2009

Official Journal of the European Union

C 55/40

Action brought on 17 December 2008 — M6 v Commission

(Case T-568/08)

(2009/C 55/71)

Language of the case: French

Parties

Applicant: Métropole Télévision SA (M6) (Neuilly-sur-Seine, France) (represented by: O. Freget and N. Chahid-Nouraï, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the decision of the European Commission of 16 July 2008 in Case N 279/2008-France (Capital endowment for France Télévisions);

—	require the Commission to initiate the formal investigation procedure under the first subparagraph of Article 88(2) EC in respect of State aid;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant applies for the annulment of Commission Decision C(2008) 3506 final of 16 July 2008, by which the Commission had held State aid in the form of a capital endowment of EUR 150 million in favour of France Télévisions to be compatible with the common market. The applicant requests in that context the initiation of the formal investigation procedure in accordance with Article 88(2) EC.

In support of its application, the applicant raises three pleas concerning the lawfulness of the contested decision alleging:

—

a breach of the applicant's procedural rights, in so far as the Commission's assessment, and especially that relating to the direct causal link between the announcement of the President of the French Republic of 8 January 2008 concerning the abolition of commercial advertising on the channels of the France Télévisions group and the loss of income suffered by those channels, would create difficulties such as to justify the initiation of the formal investigation procedure in accordance with Article 88(2) EC so that the competitors of the France Télévisions group could set out their position;

—

a failure of the Commission to provide adequate information concerning the cause of the loss of advertising revenue and intended use of the capital endowment granted to France Télévisions, in so far as the Commission did not verify with the required neutrality, impartiality and thoroughness the truth and reliability of the information which was communicated to it concerning the real causes of France Télévisions' advertising losses and the final use to which the sums paid by the French Republic to France Télévisions were to be put;

—

a failure to state grounds, in so far as the Commission (i) did not sufficiently justify the importance given in the contested decision to the effect of the presidential announcement of 8 January 2008 which referred to the abolition of advertising on the public channels, (ii) failed to take into consideration the influence, on advertising regulation, of the ‘refocusing’ of France Télévisions' activities towards those of a public service and (iii) did not take into consideration the responses of private operators, including the applicant.

7.3.2009

Official Journal of the European Union

C 55/40

Action brought on 22 December 2008 — Visonic v OHIM — Sedea Electronique (VISIONIC)

(Case T-569/08)

(2009/C 55/72)

Language in which the application was lodged: English

Parties

Applicant: Visonic Ltd (Tel Aviv, Israel) (represented by: A. Beschorner and C. Thomas, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sedea Electronique SA (Seclin, France)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 October 2008 in joined cases R 946/2007-2 and R 1151/2007-2;

—	Declare Community trade mark No 1 562 982 ‘VISIONIC’ invalid in respect of all the goods concerned;

—	Order OHIM to pay the costs incurred in the proceedings before the court and the other party to the proceedings before the Board of Appeal to pay the costs of the administrative proceedings before the Board of Appeal;

—	Set a date for an oral hearing in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘VISIONIC’ for goods in class 9

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Partly upheld the request for a declaration of invalidity

Decision of the Board of Appeal: Allowed the appeal in case R 946/2007-2; Annulled the contested decision rejecting the cancellation request; Dismissed the appeal in case R 1151/2007-2.

Pleas in law: Infringement of Articles 52(3), 8(1)(b) of Council Regulation 40/94, as well as of general principles of trade mark law as the Board of Appeal wrongly ruled that the applicant gave its consent to the registration of the Community trade mark subject of the application for a declaration of invalidity and, as a result, failed to examine whether a likelihood of confusion between the trade marks concerned exists.

7.3.2009

Official Journal of the European Union

C 55/41

Action brought on 22 December 2008 — Deutsche Post v Commission

(Case T-570/08)

(2009/C 55/73)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund and T. Lübbig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the decision of the Commission of the European Communities of 30 October 2008 concerning the information injunction in the proceedings ‘State aid C-36/2007 — State aid to Deutsche Post AG’;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The action is directed against the decision of the Commission of the European Communities (C (2008) 6468) of 30 October 2008 by which, in State aid procedure C 36/2007 (ex NN 25/2007), the Commission required Germany, pursuant to Article 10(3) of Regulation (EC) No 659/1999 (1), to send all the documents, information and data required in order to assess the costs and revenues of Deutsche Post in the period from 1989 to 2007.

The applicant raises four pleas in law.

In the first, second and third pleas, the applicant submits that the decision should be annulled on the grounds of an infringement of essential rules as to form and procedure, in that

—	the requirements as to the valid setting of a time-limit and as to a ‘reminder, allowing an appropriate additional period’ in accordance with Articles 5(2) and 10(3) of Regulation No 659/1999 were not satisfied;

—	the information injunction exhibits serious failings in regard to the obligation to state reasons and thus infringes Article 253 EC;

—	the Commission failed, contrary to Articles 287 EC and 10 EC, to give the Federal Government and the applicant an opportunity to submit comments on the protection of the applicant's business secrets.

By its fourth plea in law, the applicant claims that the contested decision should, moreover, be annulled on the grounds of an infringement of substantive Community law, because the use of the requested data concerning costs and revenues in respect of the period from 1 January 1995 to 31 December 2007 for the purposes of examining the ‘financial compensation’ conflicts with the 2005 Community Framework and with the division of powers between Member States and the Commission; infringes Articles 86(2) EC and 87(1) EC in conjunction with the principles of proportionality, legal certainty and the Community-law prohibition of discrimination; and, finally, is manifestly inappropriate for the assessment in terms of State-aid law of pension and liability provisions.

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

7.3.2009

Official Journal of the European Union

C 55/41

Action brought on 22 December 2008 — Germany v Commission

(Case T-571/08)

(2009/C 55/74)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the Commission's decision of 30 October 2008 in the proceedings ‘State aid C 36/2007 — State aid to Deutsche Post AG’ concerning the information injunction;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant raises two pleas in law.

By the first plea in law, the applicant claims that the information injunction infringes essential rules as to form.

—

The requirements as to the valid setting of a time-limit and as to a ‘reminder, allowing an appropriate additional period’ in accordance with Articles 5(2) and 10(3) of Regulation No 659/1999 were not satisfied. In the alternative, the applicant observes that the period allowed in the information injunction itself was disproportionate.

—

Furthermore, the information injunction does not safeguard the protection enshrined in Article 287 EC of Deutsche Post AG's business secrets, since the data would presumably be passed to an external undertaking — which might also be working for competitors of Deutsche Post AG — for analysis, and the Commission refuses to provide further details in that regard.

By its second plea in law, the applicant claims that the information injunction also infringes Articles 87(1) EC and 86(2) EC in conjunction with the principles of proportionality and legal certainty, since the data requested are not necessary for the assessment in terms of State-aid law of any of the three State measures at issue in the proceedings.

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

7.3.2009

Official Journal of the European Union

C 55/42

Action brought on 17 December 2008 — TF1 v Commission

(Case T-573/08)

(2009/C 55/75)

Language of the case: French

Parties

Applicant: Télévision française 1 SA (TF1) (represented by: J.-P. Hordies and C. Smits, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the decision of the Commission of 16 July 2008 in Case N 279/2008-France (Capital endowment for France Télévisions);

—	order the Commission to initiate the formal investigation procedure under Article 88(2) EC in respect of State aid;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of its application, the applicant asserts, on the substance of the case, two pleas:

—

based on the finding that there were serious difficulties in response to which the Commission should have been required to initiate the formal investigation procedure in accordance with Article 88(2) EC, those serious difficulties being demonstrated by (i) the fact that the decision was materially inaccurate, (ii) the inadequacy of the information at the Commission's disposal and (iii) the unusually short duration, as well as the circumstances, of the preliminary phase of investigation;

—

relating to a failure to state grounds, in so far as the Commission did not collect all the necessary information and/or did not take into consideration the information at its disposal and in so far as the Commission's reasoning in paragraph 23 of the contested decision could depart from its previously adopted position without the Commission nonetheless justifying that departure.

7.3.2009

Official Journal of the European Union

C 55/43

Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)

(Case T-575/08)

(2009/C 55/76)

Language in which the application was lodged: German

Parties

Applicant: 4care AG (Kiel, Germany) (represented by: S. Redeker, 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: Laboratorios Diafarm, SA (Barbera del Valles, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2008 in Case R 16636/2007-2 and reject the opposition entered by Laboratorios Diafarm, SA;

—	order the defendant and Laboratorios Diafarm, SA to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘Acumed’ for goods in Classes 3, 5 and 9 (application for registration No 4493136).

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Diafarm, SA.

Mark or sign cited in opposition: Spanish word mark ‘AQUAMED ACTIVE’ (trade mark No 2506452) for goods in Class 5 and Community word mark ‘AQUAMED ACTIVE’ (No 2882272) for goods in Class 5.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

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

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

7.3.2009

Official Journal of the European Union

C 55/43

Action brought on 23 December 2008 — Germany v Commission

(Case T-576/08)

(2009/C 55/77)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

—	annul Commission Regulation (EC) No 983/2008 of 3 October 2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community;

—	maintain the effects of the annulled regulation;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Regulation (EC) No 983/2008 of 3 October 2008 (1), which contains the annual plan for 2009 in respect of the distribution of food to the most deprived persons in the Community.

In the applicant's submission, the regulation has no legal basis in Community law. While it was adopted on the basis of Regulation (EC) No 1234/2007 (2), which in turn has the common agricultural policy of the Community (Articles 36 and 37 EC, in conjunction with Article 33 EC) as legal basis, it does not, however, meet the requirements laid down therein.

The plan was originally devised by way of a competence ancillary to the common agricultural policy as essentially available intervention stocks were used for a social purpose. For several years, on the other hand, the plan has been operating exclusively through the purchase of food on the market since, because of common foreign policy reforms, intervention stocks hardly remain. The applicant regards the plan today as a purely social-policy instrument of the Community for which there is no legal basis (principle of conferred powers).

The contested regulation is thus not compatible with the requirements in Article 27(2) of Regulation No 1234/2007 which allows the purchase of food for the plan only if intervention stocks have temporarily reached their capacity. In the meantime it has, however, become a permanent state of affairs that the purchase of food largely predominates.

Nor does the contested regulation pursue any of the objectives of the common agricultural policy that are laid down in Article 33(1) EC.

In order to avoid difficulties in the execution of the annual plan, the applicant calls on the court to limit the effects of the annulment to the provision on purchases in Article 2 of Regulation No 983/2008 in conjunction with Annex II thereto.

(1) Commission Regulation (EC) No 983/2008 of 3 October 2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community (OJ 2008 L 268, p. 3).

(2) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

7.3.2009

Official Journal of the European Union

C 55/44

Action brought on 23 December 2008 — DVB Project v OHIM — Eurotel (DVB)

(Case T-578/08)

(2009/C 55/78)

Language in which the application was lodged: English

Parties

Applicant: DVB Project (Le Grand Saconnex, Switzerland) (represented by: W. Pors, lawyer)

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

Other party to the proceedings before the Board of Appeal: Eurotel SpA (Milan, Italy)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 October 2008 in case R 1387/2007-2; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The mark ‘DVB’ for goods and services in classes 9 and 38

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Dismissal of the request for invalidity

Decision of the Board of Appeal: Allowed the appeal and annulled the contested decision

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation 40/94 as the Board of Appeal wrongly found that a monopoly on the registered Community trade mark subject of the application for a declaration of invalidity would seriously impair the business activities of traders in the field of telecommunication; Infringement of Articles 7(3) and 51(2) of Council Regulation 40/94 as the Board of Appeal failed to analyse the merits of the issue of acquired distinctiveness raised by the applicant.

7.3.2009

Official Journal of the European Union

C 55/44

Action brought on 30 December 2008 — Cantiere Navale De Poli v Commission

(Case T-584/08)

(2009/C 55/79)

Language of the case: Italian

Parties

Applicant: Cantiere Navale De Poli SpA (represented by: A. Abate, lawyer, R. Longanese Cattani, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the decision adopted by the European Commission on 21 October 2008 on State aid from Italy No C 20/2008 (ex N 62/2008).

—	Order the Commission to pay the costs.

Pleas in law and main arguments

Council Regulation (EC) No 1177/2002 of 27 June 2002 (OJ 2002 L 172, p. 1) is based on Article 87(3)(e) EC and introduced a temporary defensive mechanism for shipbuilding, with the aim of restoring the market conditions distorted by the anti-competitive practices of the Korean shipyards. The expiry of the regulation, initially set for 31 March 2004, was subsequently postponed for one year, thus allowing Community shipyards until 31 March 2005 (the new expiry date of the regulation) to conclude further contracts for building certain types of cargo vessel. In support of those contracts, the regulation provides for aid of up to 6 % of the contract value. The applicant is party to five contracts for the construction of chemical vessels.

In order to finance all of the contracts during the period from 2002 to 2005, Italy notified two financing packages of EUR 10 million each. The Commission authorised the first by decision of 19 May 2004 but refused, by the contested decision, to authorise the second financing package. The Commission maintains that the additional financing constitutes ‘new aid’ within the meaning of Article 4 of Commission Regulation (EC) No 794/2004 of 21 April 2004 (OJ 2004 L 140, p. 1) in that it represents more than 20 % of the original budget of the scheme. The Commission further argues that the additional financing is incompatible with the common market in that the notification was made after 31 March 2005, the date on which Regulation No 1177/2002 expired.

The applicant submits that it was not possible for the Italian Government to prepare the financing for the contracts by 31 March 2005, since it was not in a position to have knowledge of all the contracts concerned: that being the last day of application of the regulation, the undertakings had the right to conclude contracts up to and on that day.

The applicant accordingly puts forward the following pleas in law in support of its action to contest the decision, in particular:

—	infringement of Regulation No 1177/2002 in the light of the specific aims of the legislature in relation to Article 87(3)(e) EC;

—	infringement of Article 4(2)(a) of Commission Regulation No 794/2004 in so far as the additional financing of EUR 10 million has been categorised as ‘new aid’;

—	irrelevance of the recommendation of 20 June 2005 of the WTO Dispute Settlement Body in respect of the shipbuilding contracts lawfully concluded under Regulation No 1177/2002;

—	failure to state reasons to substantiate the allegation that there is no legal basis for authorising the additional financing;

—	breach of the principles of good administration, the right to a fair hearing, the rights of the defence, equal treatment, subsidiarity and proportionality.

7.3.2009

Official Journal of the European Union

C 55/45

Action brought on 24 December 2008 — Kerma v OHIM (BIOPIETRA)

(Case T-586/08)

(2009/C 55/80)

Language in which the application was lodged: Italian

Parties

Applicant: Kerma SpA (Puegnago sul Garda, Italy) (represented by A. Manzoni, lawyer)

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

Form of order sought

—	declare that the trade mark BIOPIETRO conforms with Article 4 of the Trade Mark Regulation and is not devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation;

—	order OHIM to pay the costs in the event of its being unsuccessful.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BIOPIETRA’ (application for registration No 5.658.893), for goods in Class 19.

Decision of the Examiner: Rejection of the application for registration.

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

Pleas in law: Infringement and incorrect application of Article 7(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

7.3.2009

Official Journal of the European Union

C 55/46

Action brought on 5 January 2009 — UniCredit v OHIM — Union Investment Privatfonds (UniCredit)

(Case T-4/09)

(2009/C 55/82)

Language in which the application was lodged: Italian

Parties

Applicant: UniCredit SpA (Rome, Italy) (represented by: G. Floridia, lawyer, and R. Floridia, 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: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany)

Form of order sought

—	Annul the decision of the Second Board of Appeal of OHIM delivered on 3 November 2008 in Case R 1449/2006-2, relating to opposition proceedings No B 699.746.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Multi-coloured figurative mark ‘1 UniCredit’ (the number one being 45° inclined to the right and impressed on the spherical logo) (registration application No 2.911.105), for goods and services in Classes 9, 16, 35, 36, 38, 39, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Union Investment Privatfonds GmbH.

Mark or sign cited in opposition: German word marks ‘UniSECTOR’, ‘UniDynamicFonds’ and ‘UniGarant’, for services in Classes 35 and 36.

Decision of the Opposition Division: Opposition upheld in respect of the services in Class 36.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant argues that the contested decision did not take account of the powers of perception of the public at which the services covered are directed or of the non-existent or minimal distinctiveness of the prefix ‘Uni’.

7.3.2009

Official Journal of the European Union

C 55/46

Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission

(Case T-9/09 P)

(2009/C 55/83)

Language of the case: Italian

Parties

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

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—

In every case

(A.1)

set aside in its entirety and without exception the order under appeal;

(A.2)

declare the action at first instance to be admissible in full.

—

As a primary remedy:

(B.1)

uphold in their entirety and without exception the appellant's pleas in law set out in the application at first instance;

(B.2)

order the respondent to pay the appellant's costs relating to this appeal and to the proceedings at first instance;

—

or, in the alternative:

(B.3)

refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

This appeal is directed against the order of the Civil Service Tribunal of 4 November 2008 in Case F-133/06 Marcuccio v Commission.

In support of the forms of order sought by him, the appellant raises the following pleas in law:

(a)

complete failure to carry out preliminary investigations and failure to rule on a fundamental aspect of the dispute, in so far as the order under appeal fails to adjudicate on the application for a declaration that there is no legal basis for the decision contested before the Civil Service Tribunal.

(b)

complete failure to state adequate reasons in the order under appeal as regards the inadmissibility of the requests that ‘the Commission be ordered to return his personal property to the applicant’, ‘that the contested decision be annulled’ and of ‘the application for damages’, as regards the order that the appellant should pay the costs, and distortion and misrepresentation of the facts, complete failure to carry out any preliminary investigations, confusion and irrationality, and also the erroneous and incorrect interpretation and application of the Community legislation and case-law.

(c)	a procedural error, in that no account was taken of the requirement not to have regard to the arguments contained in the defence in so far as made out of time by the respondent, in a manner which was prejudicial to the interests of the appellant.

(d)	infringement of the rules relating to a fair hearing.

7.3.2009

Official Journal of the European Union

C 55/47

Action brought on 14 January 2009 — Formula One Licensing v OHIM — Racing — Live (F1 — Live)

(Case T-10/09)

(2009/C 55/84)

Language in which the application was lodged: English

Parties

Applicant: Formula One Licensing BV (Amsterdam, The Netherlands) (represented by: B. Klingberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Racing — Live SA (Montpellier, France)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 October 2008 in case R 7/2008-1;

—	Order the defendant to pay the costs of proceedings; and

—	Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the defendant.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘F1 — Live’, for goods and services in classes 16, 38 and 41

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

Mark or sign cited: International trade mark registration No 732 134 of the word mark ‘F1’ for goods and services in classes 16, 38 and 41; German trade mark registration No 30 007 412 of the word mark ‘F1’ for services in class 41; United Kingdom trade mark registration No 2 277 746 D of the word mark ‘F1’ for goods and services in classes 16 and 38; Community trade mark registration No 631 531 of the figurative mark ‘F1 Formula 1’ for goods and services in classes 16, 38 and 41; other marks such as ‘F1 Racing Simulation’, ‘F1 Pole Position’ and ‘F1 Pit Stop Café’

Decision of the Opposition Division: Rejected the Community trade mark application

Decision of the Board of Appeal: Annulled the contested decision, rejected the opposition and allowed the Community trade mark application to proceed

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal failed to find that use of the Community trade mark concerned would without due cause take unfair advantage of, and be detrimental to, the distinctive character or the repute of the applicant's earlier trade marks.

7.3.2009

Official Journal of the European Union

C 55/47

Action brought on 14 January 2009 — Özdemir v OHIM — Aktieselskabet af 21. november 2001 (James Jones)

(Case T-11/09)

(2009/C 55/85)

Language in which the application was lodged: English

Parties

Applicant: Rahmi Özdemir (Dreieich, Germany) (represented by: M. Heinrich, I. Hoes, C. Schröder, K. von Werder and J. Wittenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Aktieselskabet af 21. november 2001 (Brande, Denmark)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 November 2008 in case R 858/2007-2;

—	Dismiss the opposition of the other party to the proceedings before the Board of Appeal of 25 January 2005 against the application for registration of the Community trade mark — application No 3 493 137; and

—	Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including the costs incurred in the course of the opposition proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘James Jones’, for goods in class 25

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

Mark or sign cited: Community trade mark registration No 1 107 747 of the word mark ‘Jack & Jones’ for goods in classes 3, 18 and 25; United Kingdom trade mark registration No 2 063 437 of the word mark ‘Jack Jones’ for goods in class 25; Benelux trade mark registration No 474 622 of the word mark ‘Jack Jones’ for goods in class 25; Denmark trade mark registration No VR 1990 06569 of the word mark ‘Jack & Jones’ for goods in class 25

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned; infringement of Article 43(2) of Council Regulation 40/94 as there has been no proof of use submitted before the Board of Appeal for United Kingdom trade mark registration No 2 063 437.

7.3.2009

Official Journal of the European Union

C 55/48

Appeal brought on 19 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 4 November 2008 in Case F-87/07 Marcuccio v Commission

(Case T-16/09 P)

(2009/C 55/86)

Language of the case: Italian

Parties

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

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—

In any event:

A.1	A decision setting aside the order under appeal, in its entirety and without exception.

A.2	A declaration that the action at first instance was perfectly admissible.

—

The principal claim:

B.1	The granting in toto and without exception of the appellant's claims at first instance;

B.2	an order that the respondent should pay in favour of the appellant all costs, fees and expenses incurred by him both at first instance and on appeal;

—

B.3	refer the case back to the Civil Service Tribunal, sitting in a different formation, so that it may give a fresh decision on the merits of the case.

Pleas in law and main arguments

The decision under appeal in this case is the order made by the Civil Service Tribunal on 4 November 2008 in Case T-87/07 Marcuccio v Commission.

The pleas in law and main arguments are similar to those put forward in Case T-9/09 Marcuccio v Commission.

The appellant claims, in particular, that the Civil Service Tribunal did not rule on a fundamental aspect of the dispute, that is to say, authorisation to produce a note signed by a doctor. He also alleges that the order lacks any reasoning and is illogical in respect of the alleged inadmissibility of the claim for damages, of the claim that the Tribunal should make a declaration establishing the reality of the actions and conduct complained of and, at least incidentally, declare them unlawful, and of the action at first instance as a whole.

7.3.2009

Official Journal of the European Union

C 55/49

Appeal brought on 16 January 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-41/06 Marcuccio v Commission

(Case T-20/09 P)

(2009/C 55/87)

Language of the case: Italian

Parties

Appellant: Commission of the European Communities (represented by A. Dal Ferro, lawyer, and by C. Berardis-Kayser and J. Currall, acting as Agents)

Other party to the proceedings: Luigi Marcuccio (Triase, Italy)

Form of order sought by the appellant

—	set aside the judgment under appeal;

—	refer the case back to the Civil Service Tribunal in order that it may adjudicate on the other pleas put forward by the appellant.

Pleas in law and main arguments

This appeal is directed against the judgment of the Civil Service Tribunal (CST) of 4 November 2008, by which it annulled the appellant's decision of 30 May 2005, ordering that the applicant at first instance should take compulsory retirement on grounds of his incapacity, which had been established by the Invalidity Committee. In addition, the CST fixed the compensation for non-material damage suffered at the sum of EUR 3 000.

The annulment was granted in reliance exclusively on the first plea in law, based on a failure to state adequate reasons.

In this regard, the appellant states that in reaching this result the tribunal hearing the case at first instance erred in law in holding, in essence, that doctors involved in incapacity proceedings based on Articles 53, 59 and 78 of the Staff Regulations are required to provide, in support of their findings, a statement of reasons similar to that required in the case of occupational disease or for the purposes of Article 73. In so doing, according to the Commission, the CST confused the two procedures, with the result that the incapacity procedure was made unduly cumbersome.

7.3.2009

Official Journal of the European Union

C 55/49

Action brought on 21 January 2009 — CNOP and CCG v Commission

(Case T-23/09)

(2009/C 55/88)

Language of the case: French

Parties

Applicants: Conseil National de l'Ordre des Pharmaciens (CNOP) (Paris, France), Conseil Central de la Section G de l'Ordre National des Pharmaciens (CCG) (Paris, France) (represented by: Y.-R. Guillou, H. Speyart and T. Verstraeten, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

—	annul the contested decision; and

—	order the Commission to bear its own costs and to pay those of the applicants.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2008) 6494 of 29 October 2008 in which the Commission, pursuant to Article 20(4) of Regulation No 1/2003 (1), ordered the applicants to submit to an inspection concerning their possible participation in and/or implementation of agreements or concerted practices contrary to the provisions of Articles 81 EC and/or 82 EC.

That conduct took the form of decisions aimed at preventing pharmacists and/or legal persons from gaining access to the market in bio-medical analysis services, to restrict their activities on that market, or to exclude them from that market, inter alia, by not registering pharmacists and/or legal persons wishing to offer bio-medical analysis services in the Section G List, and by not updating their registration on that list.

In support of their actions, the applicants put forward three pleas in law alleging:

—	breach of the principle that the decisions of the Community institutions must be addressed to entities having legal personality, as the Ordre National des Pharmaciens is also an addressee of the contested decisions although it has no legal personality;

—	breach of the duty to state reasons, as the Commission did not identify the entity which may constitute an undertaking or an association of undertakings, within the meaning of Article 20(4) of Regulation No 1/2003, and as it did not state the reasons justifying such a categorisation;

—

infringement of Article 20(4) of Regulation No 1/2003, inasmuch as neither the applicants, nor the Ordre National des Pharmaciens (i) are undertakings, since they do not carry out any economic activity, or (ii) could be categorised as associations of undertakings since they group together a body of members who do not all carry out an economic activity, and they do not satisfy the circumstantial requirements for identifying an association of undertakings, set out by the Court, in the case of professional associations responsible for public tasks.

(1) 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).

7.3.2009

Official Journal of the European Union

C 55/50

Action brought on 21 January 2009 — Biocaps v Commission

(Case T-24/09)

(2009/C 55/89)

Language of the case: French

Parties

Applicant: Biocaps (Orsay, France) (represented by: Y.-R. Guillou, H. Speyart and T. Verstraeten, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

—	annul the constested decision; and

—	order the Commission to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

The applicant, a legal entity responsible for running the Laboratoire Champagnat Desmoulins Philippakis, seeks the annulment of Commission Decision C(2008) 6524 of 29 October 2008 in which the Commission, pursuant to Article 20(4) of Regulation No 1/2003 (1), ordered that laboratory, and all of the entities controlled directly or indirectly by it, to submit to an inspection concerning their possible participation in and/or implementation of agreements or concerted practices contrary to the provisions of Articles 81 EC and/or 82 EC.

That conduct took the form in particular of decisions aimed at preventing pharmacists and/or legal persons from gaining access to the market in bio-medical analysis services, to restrict their activities on that market, or to exclude them from that market.

In support of its action, the applicant puts forward a single plea in law alleging breach of the principle that the decisions of the Community institutions must be addressed to entities having legal personality, as the addressee of the contested decision no longer existed on the date when the decision was adopted.

(1) 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).

7.3.2009

Official Journal of the European Union

C 55/51

Judgment of the Civil Service Tribunal (Second Chamber) of 27 November 2008 — Klug v EMEA

(Case F-35/07) (1)

(Staff case - Temporary staff - Non-renewal of a fixed-term contract - Unfavourable appraisal report - Psychological harassment)

(2009/C 55/92)

Language of the case: German

Parties

Applicant: Bettina Klug (London, United Kingdom) (represented by: W. Grupp, lawyer, initially, then by S. Zickgraf, lawyer)

Defendant: European Medicines Agency (EMEA) (represented by: V. Salvatore, S. Vanlievendael, Agents, assisted by H.-G. Kamman and N. Rössler, lawyers)

Re:

Annulment of the decision of the European Medicines Agency rejecting the applicant's claim for an extension of her employment contract — Application for a new staff report — Application for damages

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the parties to bear their own costs.

(1) OJ C 140, 23.6.2007, p. 45.

7.3.2009

Official Journal of the European Union

C 55/51

Judgment of the Civil Service Tribunal (First Chamber) of 20 January 2009 — Klein v Commission

(Case F-32/08) (1)

(Staff case - Officials - Pensions - Invalidity pension - Death - Definition of dependent child - Article 2 of Annex VII to the Staff Regulations - Death allowance - Death grant - Orphans' pension)

(2009/C 55/93)

Language of the case: French

Parties

Applicant: Marie-Claude Klein (Grasse, France) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities (represented by: D. Martin and K. Herrmann, Agents)

Re:

Annulment of the Appointing Authority's decision of 4 May 2007 refusing to grant the applicant entitlement to a death grant, a death allowance and an orphans' pension.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Ms Klein to pay all the costs.

(1) OJ C 116, 9.5.2008, p. 36.

7.3.2009

Official Journal of the European Union

C 55/52

Action brought on 17 December 2008 — Petrilli v Commission

(Case F-100/08)

(2009/C 55/94)

Language of the case: French

Parties

Applicant: Alessandro Petrilli (Grottammare, Italy) (represented by: J.-L. Lodomez, J. Lodomez, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the Appointing Authority's decision on the fixing of the applicant's main residence.

Form of order sought

The applicant claims the Tribunal should:

—	Annul the decision of 16 September 2008 by which the Appointing Authority rejected the fixing of the applicant's main residence in Italy;

—	So far as is necessary, annul any decision which the Commission might make relating to the procedure following the complaint, brought by the applicant after the communication of new evidence;

—

order the Commission to pay, on the sums due in respect of the retroactive application of the correction coefficient for Italy on the applicant's pension from 1 July 2007, interest on the basis of the rate set by the ECB for its principal refinancing operations, applicable during the relevant period, increased by two points;

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

7.3.2009

Official Journal of the European Union

C 55/52

Action brought on 15 December 2008 — Marcuccio v Commission

(Case F-102/08)

(2009/C 55/95)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the Commission's decision to reject the applicant's request for, first, compensation for the damage suffered when the personal effects were dispatched from his official lodgings in Luanda and, second, the destruction of all the documents relating to the dispatched property in the defendant's possession and the restitution of that property to the applicant.

Form of order sought

—	declare that there is no legal basis for or, in the alternative, annul the decision rejecting the request of 1 September 2007 and, in so far as is necessary, the decision rejecting the complaint of 20 March 2008;

—	in so far as is necessary, declare that there is no legal basis for or, in the alternative, annul the note of 18 July 2008;

—

confirm that, on 30 April 2003 and 2 May 2003, members of the defendant's staff or its representatives entered the applicant's lodgings against his will, took photographs, drew up a list of the applicant's presumed personal effects, carried out an evaluation of each item on the list of personal effects, entered the applicant's motor vehicle, took possession of the applicant's personal effects and motor vehicle and evicted him from the lodgings and their appurtenances;

—	confirm and declare that such acts are unlawful;

—	order the defendant to draw up a list accurately identifying each individual item of the documentation that is relevant to the abovementioned facts and to notify the applicant in writing of that list;

—	order the defendant to arrange for the physical destruction of each individual item of the documentation and to notify the applicant of that destruction;

—	order the defendant to arrange for the applicant's personal effects to be restored to him;

—	order the defendant to pay to the applicant the sum of EUR 722 000, or such greater or lesser sum as the Tribunal may consider fair and just, by way of compensation for the damage arising from facts referred to above;

—	order the defendant to pay to the applicant, with effect from the date of the request of 1 September 2007 until the date of actual payment of the sum of EUR 722 000, interest on that sum;

—

order the defendant to pay to the applicant, by way of compensation for the damage arising from the failure to draw up the list of documentation and to notify the applicant of that list, with effect from tomorrow until the day on which the list is notified to the applicant, the sum of EUR 100 per day, or such greater or lesser sum as the Tribunal may consider fair and just;

—

order the defendant to pay to the applicant, by way of compensation for the damage arising from the failure physically to destroy the documentation, with effect from tomorrow until the day on which the documentation is physically destroyed, the sum of EUR 100 per day, or such greater or lesser sum as the Tribunal may consider fair and just;

—

order the defendant to pay to the applicant, by way of compensation for the damage arising from the failure to restore the applicant's personal effects to him, with effect from tomorrow until the day on which the effects are restored, the sum of EUR 100 per day, or such greater or lesser sum as the Tribunal may consider fair and just;

—	order the defendant to pay the costs.

7.3.2009

Official Journal of the European Union

C 55/53

Action brought on 9 January 2009 — Putterie-de-Beukelaer v Commission

(Case F-1/09)

(2009/C 55/96)

Language of the case: French

Parties

Applicant: Françoise Putterie-de-Beukelaer (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision not to admit the applicant to the 2007 attestation procedure.

Form of order sought

The applicant claims that the Tribunal should:

—	Annul the Appointing Authority's decision of 30 September 2008 to reject the applicant's complaint relating to the decision that her application for the 2007 attestation procedure was inadmissible;

—	Annul the Appointing Authority's decision that her application for the 2007 attestation procedure was inadmissible;

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

7.3.2009

Official Journal of the European Union

C 55/53

Action brought on 19 January 2009 — Menghi v ENISA

(Case F-2/09)

(2009/C 55/97)

Language of the case: French

Parties

Applicant: Achille Menghi (Cagliari, Italy) (represented by: L. Defalque, lawyer)

Defendant: European Network and Information Security Agency

Subject-matter and description of the proceedings

The annulment of the decision not to confirm the applicant's contract after the probationary period and an application for compensation for the material and non-material harm suffered.

Form of order sought

The applicant claims that the Tribunal should:

—	Annul the decision of 3 October 2008 rejecting the applicant's complaint relating to the decision of the authority authorised to conclude contracts of employment of 14 March 2008 not to confirm the applicant's contract;

—	Consequently, annul the decision of the authority authorised to conclude contracts of employment of 14 March 2008 not to confirm the applicant's contract;

—

Order the authority authorised to conclude contracts of employment to pay compensation to the applicant for the financial harm caused by the failure to confirm his three year contract of employment, the financial harm caused as a result of the medical expenses which he had to incur and the non-material harm suffered on account of psychological harassment;

—	Order the European Network and Information Security Agency to pay the costs.

7.3.2009

Official Journal of the European Union

C 55/53

Action brought on 16 January 2009 — Ridolfi v Commission

(Case F-3/09)

(2009/C 55/98)

Language of the case: French

Parties

Applicant: Roberto Ridolfi (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the Appointing Authority's decision to refuse the applicant entitlement to reuse and retain the education allowance together with interest in respect of his two eldest children.

Form of order sought

The applicant claims that the Tribunal should:

—	annul the decision of the Appointing Authority of 5 March 2008 refusing the applicant entitlement to reuse and retain the education allowances together with interest in respect of his two eldest children;

—

annul all of the Commission's decisions taken to implement the aforementioned decision of the Appointing Authority of 5 March 2008, in particular the note of the Head of Unit of the External Service Directorate of DG RELEX, of 12 December 2008‘Rights and Obligations of Officials and Members of the Contract Staff’, recovering the sum of EUR 1 295,38;

—	so far as necessary, annul the Commission's express decision of 6 October 2008 rejecting the complaint brought by the applicant under Article 90(2) on 5 June 2008;

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

		ISSN 1725-2423
Official Journal of the European Union		C 55

English edition	Information and Notices	Volume 52 7 March 2009

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2009/C 055/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 44, 21.2.2009	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2009/C 055/02	Case C-140/07: Judgment of the Court (First Chamber) of 15 January 2009 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Hecht-Pharma GmbH v Staatliches Gewerbeaufsichtsamt Lüneburg (Directive 2001/83/EC — Articles 1(2) and 2(2) — Concept of medicinal product by function — Product in respect of which it has not been established that it is a medicinal product by function — Account taken of the content in active substances)	2

2009/C 055/03	Case C-383/07: Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — M-K Europa GmbH & Co. KG v Stadt Regensburg (Reference for a preliminary ruling — Regulation (EC) No 258/97 — Article 1(1) to (3) — Novel foods and novel food ingredients)	3

2009/C 055/04	Case C-495/07: Judgment of the Court (First Chamber) of 15 January 2009 (reference for a preliminary ruling from the Oberster Patent- und Markensenat — Austria) — Silberquelle GmbH v Maselli Strickmode GmbH (Trade marks — Directive 89/104/EEC — Articles 10 and 12 — Revocation — Concept of genuine use of a mark — Affixing the mark to promotional items — Distribution of such items free of charge to the purchasers of goods sold by the mark's proprietor)	3

2009/C 055/05	Case C-502/07: Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Republic of Poland) — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy (VAT — Irregularities in the tax declaration submitted by a taxable person — Additional tax)	4

2009/C 055/06	Case C-539/07: Judgment of the Court (Seventh Chamber) of 15 January 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 26(3) — Single European emergency call number — Caller location information — Availability to the authorities handling emergencies — Failure to transpose within the prescribed period)	4

2009/C 055/07	Case C-259/08: Judgment of the Court (Sixth Chamber) of 15 January 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Preservation and maintenance of habitats — Classification of special protection areas — Prohibition of hunting and capture — Incorrect transposition)	5

2009/C 055/08	Case C-421/08 P: Appeal brought on 24 September 2008 by Calebus SA against the judgment delivered on 14 July 2008 in Case T-366/06 Calebus SA v Commission of the European Communities, supported by the Kingdom of Spain	5

2009/C 055/09	Case C-506/08 P: Appeal brought on 14 November 2008 by the Kingdom of Sweden against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 9 September 2008 in Case T-403/05 MyTravel Group plc v Commission of the European Communities	6

2009/C 055/10	Case C-520/08 P: Appeal brought on 27 November 2008 by HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 September 2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Manpower, Inc.	7

2009/C 055/11	Case C-525/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 December 2008 — Sylvia Bienek v Condor Flugdienst GmbH	8

2009/C 055/12	Case C-538/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (The Netherlands) lodged on 4 December 2008 — X Holding BV v Minister van Financiën	8

2009/C 055/13	Case C-541/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Fokus Invest AG v FIAG Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)	8

2009/C 055/14	Case C-549/08: Action brought on 10 December 2008 — Commission of the European Communities v Ireland	9

2009/C 055/15	Case C-551/08: Action brought on 11 December 2008 — Commission of the European Communities v Republic of Poland	9

2009/C 055/16	Case C-552/08 P: Appeal brought on 12 December 2008 by Agrar-Invest-Tatschl GmbH against the judgment delivered by the Court of First Instance (Eighth Chamber) on 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of the European Communities	10

2009/C 055/17	Case C-558/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 17 December 2008 — Portakabin Limited and Portakabin BV v Primakabin BV	10

2009/C 055/18	Case C-560/08: Action brought on 17 December 2008 — Commission of the European Communities v Kingdom of Spain	11

2009/C 055/19	Case C-565/08: Action brought on 19 December 2008 — Commission of the European Communities v Italian Republic	12

2009/C 055/20	Case C-570/08: Reference for a preliminary ruling from the Anotato Dikastirio Kiprou (Cyprus) lodged on 22 December 2008 — Simvoulio Apokhetevseon Levkosias v Anatheoretiki Arkhi Prosforon	13

2009/C 055/21	Case C-571/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic	13

2009/C 055/22	Case C-572/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic	14

2009/C 055/23	Case C-573/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic	14

2009/C 055/24	Case C-576/08 P: Appeal brought on 23 December 2008 by People's Mojahedin Organization of Iran against the judgment of the Court of First Instance (Seventh Chamber) delivered on 23 October 2008 in Case T-256/07 People's Mojahedin Organization of Iran v Council of the European Union	15

2009/C 055/25	Case C-577/08: Reference for a preliminary ruling from the Arbeidshof te Antwerpen, Afdeling Hasselt (Belgium) lodged on 29 December 2008 — Rijksdienst voor pensioenen v E. Brouwer	16

2009/C 055/26	Case C-578/08: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 29 December 2008 — Rhimou Chakroun v Minister van Buitenlandse Zaken	16

2009/C 055/27	Case C-579/08 P: Appeal brought on 24 December 2008 by Messer Group GmbH against the judgment of the Court of First Instance (First Chamber) delivered on 15 October 2008 in Case T-305/06 Air Products and Chemicals Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	17

2009/C 055/28	Case C-581/08: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs	17

2009/C 055/29	Case C-584/08: Reference for a preliminary ruling from the Cour d'appel de Liège (Belgium) lodged on 29 December 2008 — Real Madrid Football Club, Zinedine Zidane, David Beckham, Raul Gonzalez Blanco, Ronaldo Luiz Nazario de Lima, Luis Filipe Madeira Caeiro, Futebol Club Do Porto S.A.D., Victor Baia, Ricardo Costa, Diego Ribas da Cunha, P.S.V. N.V., Imari BV, Juventus Football Club SPA v Sporting Exchange Ltd, William Hill Credit Limited, Victor Chandler (International) Ltd, BWIN International Ltd (Betandwin), Ladbrokes Betting and Gaming Ltd, Ladbroke Belgium S.A., Internet Opportunity Entertainment Ltd, Global Entertainment Ltd (Unibet)	18

2009/C 055/30	Case C-586/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 29 December 2008 — Angelo Rubino v Ministero dell'Università e della Ricerca	19

2009/C 055/31	Case C-2/09: Reference for a preliminary ruling from the Varhoven administrativen Sad (Bulgaria) lodged on 6 January 2009 — Peter Dimitrov Kalinchev v Regionalna Mitnicheska Direktsia — Plovdiv	19

2009/C 055/32	Case C-5/09: Action brought on 8 January 2009 — Commission of the European Communities v Hellenic Republic	19

2009/C 055/33	Case C-10/09: Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic	20

2009/C 055/34	Case C-11/09: Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic	20

2009/C 055/35	Case C-12/09: Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic	21

2009/C 055/36	Case C-13/09: Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic	21

2009/C 055/37	Case C-240/08: Order of the President of the Court of 4 December 2008 — Commission of the European Communities v Grand Duchy of Luxembourg	21

	Court of First Instance
2009/C 055/38	Case T-162/06: Judgment of the Court of First Instance of 14 January 2009 — Kronoply v Commission (State aid — Regional aid for large investment projects — Decision declaring the aid incompatible with the common market — Statement of reasons — Incentive effect of the aid — Necessity of the aid)	22

2009/C 055/39	Case T-399/06: Judgment of the Court of First Instance of 21 January 2009 — giropay v OHIM (GIROPAY) (Community trade mark — Application for the Community word mark GIROPAY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)	22

2009/C 055/40	Case T-296/07: Judgment of the Court of First Instance of 21 January 2009 — Korsch v OHIM (PharmaCheck) (Community trade mark — Application for the Community word mark PharmaCheck — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 — Restriction of the list of goods)	23

2009/C 055/41	Case T-307/07: Judgment of the Court of First Instance of 21 January 2009 — Hansgrohe v OHIM (AIRSHOWER) (Community trade mark — Application for the Community word mark AIRSHOWER — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)	23

2009/C 055/42	Case T-316/07: Judgment of the Court of First Instance of 22 January 2009 — Commercy v OHIM — easyGroup IP Licensing (easyHotel) (Community trade mark — Invalidity proceedings — Community word mark easyHotel — Earlier national word mark EASYHOTEL — Relative ground for refusal — Lack of similarity of the goods and services — Articles 8(1)(b) and 52(1)(a) of Regulation (EC) No 40/94 — Legal aid — Application lodged by the receiver for a commercial company — Article 94(2) of the Rules of Procedure)	23

2009/C 055/43	Case T-352/07: Judgment of the Court of First Instance of 14 January 2009 — Commission v Rednap (Arbitration clause — Contracts concluded in the context of the fourth framework programme of activities in the fields of research and technological development and demonstration — Rise and Healthline projects — Non-compliance of part of the declared expenditure with the contractual provisions — Repayment of part of the advances paid — Default proceedings)	24

2009/C 055/44	Case T-424/07: Judgment of the Court of First Instance of 20 January 2009 — Pioneer Hi-Bred International v OHIM (OPTIMUM) (Community trade mark — Application for the Community word mark OPTIMUM — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Obligation to state reasons — Examination of the facts of OHIM's own motion — Articles 73 and 74(1) of Regulation (EC) No 40/94)	24

2009/C 055/45	Case T-372/06: Order of the Court of First Instance of 19 December 2008 — Bomba Energia Getränkevertriebs v OHIM — Eckes-Granini (Bomba) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)	25

2009/C 055/46	Case T-137/07: Order of the Court of First Instance of 17 December 2008 — Portela v Commission (Non-contractual liability — Marketing of defective digital thermometers bearing the marking CE — Failure to act on the part of the Commission — Causal connection — Action in part manifestly inadmissible and in part manifestly unfounded in law)	25

2009/C 055/47	Case T-209/07: Order of the Court of First Instance of 16 December 2008 — Gaedertz v OHIM — Living Byte Software (GlobalRemote) (Community trade mark — Application for a declaration of invalidity — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)	26

2009/C 055/48	Case T-223/07 P: Order of the Court of First Instance of 18 December 2008 — Thierry v Commission (Appeal — Civil service — Officials — Promotion — 2004 promotion procedure — Dismissal of an application for a witness to be examined — Appeal manifestly inadmissible)	26

2009/C 055/49	Case T-285/07: Order of the Court of First Instance of 16 December 2008 — Italy v Parliament and Commission (Procedural step — Objection of inadmissibility — Partial inadmissibility of the action — Non-attributability of the contested measure to the Parliament)	26

2009/C 055/50	Case T-117/08: Order of the Court of First Instance of 16 December 2008 — Italy v EESC and Commission (Procedural issue — Objection of inadmissibility — Partial inadmissibility of the action — Lack of imputability of acts to the Commission)	27

2009/C 055/51	Case T-468/08 R: Order of the President of the Court of First Instance of 23 December 2008 — AES-Tisza v Commission (Application for interim measures — State aid — Commission decision declaring aid awarded by the Republic of Hungary to certain electricity producers through power purchase agreements to be incompatible with the common market — Application for suspension of operation — Lack of urgency — Weighing up of interests)	27

2009/C 055/52	Case T-535/08: Action brought on 8 December 2008 — Tuzzi fashion v OHIM — El Corte Inglés (Emidio Tucci)	28

2009/C 055/53	Case T-536/08: Action brought on 9 December 2008 — Huvis v Council	28

2009/C 055/54	Case T-537/08: Action brought on 9 December 2008 — Cixi Jiangnan Chemical Fiber and Others v Council	29

2009/C 055/55	Case T-538/08: Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)	29

2009/C 055/56	Case T-543/08: Action brought on 15 December 2008 — RWE and RWE Dea v Commission	30

2009/C 055/57	Case T-544/08: Action brought on 15 December 2008 — Hansen & Rosenthal and H & R Wax Company Vertrieb v Commission	31

2009/C 055/58	Case T-547/08: Action brought on 12 December 2008 — X-Technology Swiss v OHIM (representation of a sock)	31

2009/C 055/59	Case T-550/08: Action brought on 15 December 2008 — Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission	32

2009/C 055/60	Case T-551/08: Action brought on 15 December 2008 — H & R ChemPharm v Commission	32

2009/C 055/61	Case T-552/08: Action brought on 17 December 2008 — Commission v Domótica	33

2009/C 055/62	Case T-554/08: Action brought on 8 December 2008 — Evropaïki Dynamiki/Commission	34

2009/C 055/63	Case T-555/08: Action brought on 16 December 2008 — iPublish Ganske Interactive Publishing v OHIM (representation of a navigational device)	35

2009/C 055/64	Case T-556/08: Action brought on 17 December 2008 — Slovenská pošta v Commission	35

2009/C 055/65	Case T-557/08: Action brought on 18 December 2008 — mPAY24 v OHIM — Ultra (MPAY)	35

2009/C 055/66	Case T-560/08 P: Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 14 October 2008 in Case F-74/07 Meierhofer v Commission	36

2009/C 055/67	Case T-561/08: Action brought on 15 December 2008 — Bactria and Gutknecht v Commission	37

2009/C 055/68	Case T-565/08: Action brought on 17 December 2008 — Corsica Ferries France v Commission	38

2009/C 055/69	Case T-566/08: Action brought on 17 December 2008 — Total Raffinage Marketing v Commission	38

2009/C 055/70	Case T-567/08 P: Appeal brought on 19 December 2008 by Bart Nijs against the judgment of the Civil Service Tribunal delivered on 9 October 2008 in Case F-49/06 Nijs v Court of Auditors	39

2009/C 055/71	Case T-568/08: Action brought on 17 December 2008 — M6 v Commission	40

2009/C 055/72	Case T-569/08: Action brought on 22 December 2008 — Visonic v OHIM — Sedea Electronique (VISIONIC)	40

2009/C 055/73	Case T-570/08: Action brought on 22 December 2008 — Deutsche Post v Commission	41

2009/C 055/74	Case T-571/08: Action brought on 22 December 2008 — Germany v Commission	41

2009/C 055/75	Case T-573/08: Action brought on 17 December 2008 — TF1 v Commission	42

2009/C 055/76	Case T-575/08: Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)	43

2009/C 055/77	Case T-576/08: Action brought on 23 December 2008 — Germany v Commission	43

2009/C 055/78	Case T-578/08: Action brought on 23 December 2008 — DVB Project v OHIM — Eurotel (DVB)	44

2009/C 055/79	Case T-584/08: Action brought on 30 December 2008 — Cantiere Navale De Poli v Commission	44

2009/C 055/80	Case T-586/08: Action brought on 24 December 2008 — Kerma v OHIM (BIOPIETRA)	45

2009/C 055/81	Case T-3/09: Action brought on 2 January 2009 — Italy v Commission	45

2009/C 055/82	Case T-4/09: Action brought on 5 January 2009 — UniCredit v OHIM — Union Investment Privatfonds (UniCredit)	46

2009/C 055/83	Case T-9/09 P: Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission	46

2009/C 055/84	Case T-10/09: Action brought on 14 January 2009 — Formula One Licensing v OHIM — Racing — Live (F1 — Live)	47

2009/C 055/85	Case T-11/09: Action brought on 14 January 2009 — Özdemir v OHIM — Aktieselskabet af 21. november 2001 (James Jones)	47

2009/C 055/86	Case T-16/09 P: Appeal brought on 19 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 4 November 2008 in Case F-87/07 Marcuccio v Commission	48

2009/C 055/87	Case T-20/09 P: Appeal brought on 16 January 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-41/06 Marcuccio v Commission	49

2009/C 055/88	Case T-23/09: Action brought on 21 January 2009 — CNOP and CCG v Commission	49

2009/C 055/89	Case T-24/09: Action brought on 21 January 2009 — Biocaps v Commission	50

2009/C 055/90	Case T-132/98: Order of the Court of First Instance of 17 December 2008 — Groupe Perry et Isibiris v Commission	50

2009/C 055/91	Case T-98/06: Order of the Court of First Instance of 18 December 2008 — Fédération nationale du Crédit agricole v Commission	50

	European Union Civil Service Tribunal
2009/C 055/92	Case F-35/07: Judgment of the Civil Service Tribunal (Second Chamber) of 27 November 2008 — Klug v EMEA (Staff case — Temporary staff — Non-renewal of a fixed-term contract — Unfavourable appraisal report — Psychological harassment)	51

2009/C 055/93	Case F-32/08: Judgment of the Civil Service Tribunal (First Chamber) of 20 January 2009 — Klein v Commission (Staff case — Officials — Pensions — Invalidity pension — Death — Definition of dependent child — Article 2 of Annex VII to the Staff Regulations — Death allowance — Death grant — Orphans' pension)	51

2009/C 055/94	Case F-100/08: Action brought on 17 December 2008 — Petrilli v Commission	52

2009/C 055/95	Case F-102/08: Action brought on 15 December 2008 — Marcuccio v Commission	52

2009/C 055/96	Case F-1/09: Action brought on 9 January 2009 — Putterie-de-Beukelaer v Commission	53

2009/C 055/97	Case F-2/09: Action brought on 19 January 2009 — Menghi v ENISA	53

2009/C 055/98	Case F-3/09: Action brought on 16 January 2009 — Ridolfi v Commission	53

2009/C 055/99	Case F-21/08: Order of the Civil Service Tribunal of 18 December 2008 — Gippini Fournier v Commission	54