18.4.2009

Official Journal of the European Union

C 90/2

Judgment of the Court (First Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany)) — Mehmet Soysal, Ibrahim Savatli v Bundesrepublik Deutschland

(Case C-228/06) (1)

(EEC-Turkey Association Agreement - Freedom to provide services - Visa requirement for admission to the territory of a Member State)

2009/C 90/02

Language of the case: German

Referring court

Oberverwaltungsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicants: Mehmet Soysal, Ibrahim Savatli

Defendant: Bundesrepublik Deutschland

Joined Party: Bundesagentur für Arbeit

Re:

Reference for a preliminary ruling — Oberverwaltungsgericht Berlin-Brandenburg — Interpretation of Article 41(1) of the Additional Protocol of 23 November 1970 annexed to the Agreement establishing an Association between the European Economic Community and Turkey (JO 1972 L 293, p. 4) — Validity of Article 1 of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1) — New restrictions on the freedom to provide services — Obligation imposed on a Turkish national employed as the driver of a lorry by a Turkish transport undertaking to be in possession of a visa in order to be able to enter the territory of a Member State, even though no such obligation existed on the date on which the Additional Protocol entered into force

Operative part of the judgment

Article 41(1) of the Additional Protocol, which was signed on 23 November 1970 at Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, is to be interpreted as meaning that it precludes the introduction, as from the entry into force of that protocol, of a requirement that Turkish nationals such as the appellants in the main proceedings must have a visa to enter the territory of a Member State in order to provide services there on behalf of an undertaking established in Turkey, since, on that date, such a visa was not required.

(1) OJ C 190, 12.8.2006.

18.4.2009

Official Journal of the European Union

C 90/2

Judgment of the Court (First Chamber) of 19 February 2009 — Koldo Gorostiaga Atxalandabaso v European Parliament

(Case C-308/07 P) (1)

(Appeal - Rules concerning the expenses and allowances to Members of the European Parliament - Recovery of improperly paid sums by means of offsetting - Enforcement of a judgment of the Court of First Instance - Right to an impartial tribunal - Res judicata - Principle of sound administration)

2009/C 90/03

Language of the case: French

Parties

Appellant: Koldo Gorostiaga Atxalandabaso (represented by: D. Rouget, avocat)

Other party to the proceedings: European Parliament (represented by: C. Karamarcos, H. Krück and D. Moore, then by the latter two and A. Padowska, acting as Agents)

Re:

Appeal brought against the order of the Court of First Instance (Second Chamber) delivered on 24 April 2007 in Case T-132/06 Gorostiaga Atxalandabaso v European Parliament, by which the Court of First Instance dismissed as in part inadmissible and in part manifestly unfounded the appellant’s action for annulment of the decision of the Secretary General of the European Parliament of 22 March 2006, adopted to implement the judgment of the Court of First Instance of 22 December 2005 in Case T-146/04 Gorostiaga Atxalandabaso v European Parliament — Interpretation of Article 111 of the Rules of Procedure of the Court of First Instance and of the principle of impartiality — Interpretation of Article 27 of the Rules governing the payment of expenses and allowances to Members of the European Parliament

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Mr Gorostiaga Atxalandabaso to pay the costs.

(1) OJ C 211, 8.9.2007.

18.4.2009

Official Journal of the European Union

C 90/3

Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Landgericht Mannheim (Germany)) — Criminal proceedings against Karl Schwarz

(Case C-321/07) (1)

(Directive 91/439/EEC - Holding of driving licences from different Member States - Validity of a driving licence issued before the accession of a State - Withdrawal of a second driving licence issued by the Member State of residence - Recognition of a driving licence issued before the issue of a second licence later withdrawn on the ground that the holder was unfit - Expiry of the period accompanying a measure withdrawing a driving licence during which no application may be made for the issue of a new driving licence)

2009/C 90/04

Language of the case: German

Referring court

Landgericht Mannheim

Party in the main proceedings

Karl Schwarz

Re:

Reference for a preliminary ruling — Landgericht Mannheim — Interpretation of Articles 7(5) and 8(2) and 8(4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p.1) — Holder of several driving licences — Validity of a licence issued before accession by the Member State of which the defendant is a national — Following the period of the temporary ban on obtaining a new licence, non-recognition, on its territory, by the Member State of residence of a driving licence obtained, before accession, in another Member State before the expiry of a temporary ban on obtaining a new licence

Operative part of the judgment

Article 7(5) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as not precluding a national of a Member State from holding simultaneously two valid driving licences, one of which is a Community licence and the other a driving licence issued by another Member State where both licences were obtained before the accession of the latter State to the European Union.

Article 1 and Article 8(2) and (4) of Directive 91/439, as amended by Regulation No 1882/2003, do not preclude a Member State from refusing to recognise the right to drive stemming from a driving licence issued by another Member State before that State’s accession to the European Union if that licence was issued prior to a driving licence issued by the first Member State, in which the second driving licence has been withdrawn on the ground of its holder’s unfitness to drive. The fact that such refusal occurs after the period accompanying that withdrawal during which no application could be made for the issue of a new driving licence is irrelevant in that regard.

(1) OJ C 283, 24.11.2007.

18.4.2009

Official Journal of the European Union

C 90/3

Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v Kamino International Logistics BV

(Case C-376/07) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Monitors of the liquid crystal display (LCD) type with SUB-D, DVI-D, USB, S-video and composite-video sockets - Heading 8471 - Heading 8528 - Regulation (EC) No 754/2004)

2009/C 90/05

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Kamino International Logistics BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Annex I to Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2003 L 281, p. 1) — Colour monitor capable of displaying signals from an automatic data-processing machine and from another source — Classification under heading 8471 of the CN — Applicability and validity of Commission Regulation (EC) No 754/2004 of 21 April 2004 on the classification of certain goods in the CN (OJ 2004 L 118, p. 32)

Operative part of the judgment

Monitors such as those at issue in the main proceedings are not excluded from classification in subheading 8471 60 90, as units of the kind used ‘principally’ in an automatic data-processing system within the meaning of Note 5(B)(a) to Chapter 84 of the combined nomenclature constituting Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, solely because they are capable of displaying signals coming both from an automatic data-processing machine and from other sources.

In order to determine whether monitors such as those at issue in the main proceedings are units of the kind used principally in an automatic data-processing system, the national authorities, including the courts, must refer to the indications given in the Explanatory Notes relating to heading 8471 of the Harmonised System introduced by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983, and the Protocol of Amendment thereto of 24 June 1986, in particular to points 1 to 5 of Part One, Chapter I(D), relating to display units of automatic data-processing machines.

3.	Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the classification of certain goods in the Combined Nomenclature is not applicable for the purposes of tariff classification of the monitors at issue in the main proceedings.

(1) OJ C 269, 10.11.2007.

18.4.2009

Official Journal of the European Union

C 90/4

Judgment of the Court (Grand Chamber) of 17 February 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M. Elgafaji, N. Elgafaji v Staatssecretaris van Justitie

(Case C-465/07) (1)

(Directive 2004/83/EC - Minimum standards for determining who qualifies for refugee status or for subsidiary protection status - Person eligible for subsidiary protection - Article 2(e) - Real risk of suffering serious harm - Article 15(c) - Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict - Proof)

2009/C 90/06

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: M. Elgafaji, N. Elgafaji

Defendant: Staatssecretaris van Justitie

Re:

Reference for a preliminary ruling — Nederlandse Raad van State — Interpretation of Articles 2(e) and 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted — Minimum standards in relation to the conditions governing the granting of refugee status — Level of protection equivalent to that of Article 3 of the European Convention on Human Rights or, in the event of non-equivalence, the criteria to be applied for the purpose of determining whether there are serious and individual threats by reason of indiscriminate violence

Operative part of the judgment

Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:

—	the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

—

the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place — assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred — reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

(1) OJ C 8, 12.1.2008.

18.4.2009

Official Journal of the European Union

C 90/5

Judgment of the Court (Fourth Chamber) of 17 February 2009 (reference for a preliminary ruling from the Conseil d’État (France)) — Commune de Sausheim v Pierre Azelvandre

(Case C-552/07) (1)

(Directive 2001/18/EC - Deliberate release of genetically modified organisms - Location of release - Confidentiality)

2009/C 90/07

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Commune de Sausheim

Defendant: Pierre Azelvandre

Re:

Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of Article 19 of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (OJ 1990 L 117, p. 15) and of Article 4 of Directive 2003/4/EC of 28 January 2003 of the European Parliament and of the Council on public access to environmental information (OJ 2003 L 41, p. 26) — Meaning of ‘location of release’ of genetically modified organisms (GMOs) — Is release confined to a particular registered parcel of land or to a larger geographical area (Commune, Canton, Department)? — If the former, may disclosure of the registered reference number of the parcel in question be refused on grounds of the protection of public order or of the safety of individuals or property?

Operative part of the judgment

The ‘location of release’, within the meaning of the first indent of Article 25(4) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, is determined by all the information relating to the location of the release submitted by the notifier to the competent authorities of the Member State on whose territory that release is to take place in the context of the procedures referred to in Articles 6, 7, 8, 13, 17, 20 or 23 of that directive.

2.	An exception relating to the protection of public order or other interests protected by law cannot be relied on against the disclosure of the information set out in Article 25(4) of Directive 2001/18.

(1) OJ C 37, 9.2.2008.

18.4.2009

Official Journal of the European Union

C 90/5

Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Athesia Druck Srl v Ministero delle Finanze, Agenzia delle Entrate

(Case C-1/08) (1)

(Sixth VAT Directive - Article 9(2)(e) - Article 9(3)(b) - Thirteenth VAT Directive - Article 2 - Place where a supply of services is effected - Advertising services - Reimbursement of VAT - Tax representative)

2009/C 90/08

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Athesia Druck Srl

Defendants: Ministero delle Finanze, Agenzia delle Entrate

Re:

Reference for a preliminary ruling — Corte suprema di cassazione (Italy) — Interpretation of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Advertising services — Determination of the place of supply — Supply of services carried out by an undertaking with its head office in the territory of the Community for an undertaking which is established in a third country but which has a tax representative in the territory of a Member State

Operative part of the judgment

With regard to advertising services, where the recipient of the services is established outside the European Community, the place of supply is, as a rule, according to Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Tenth Council Directive 84/386/EEC of 31 July 1984, defined as the place where that recipient has his principal place of business. However, Member States may exercise the option provided in Article 9(3)(b) of Sixth Directive 77/388, as amended, and define the place where the services in question are supplied, by way of derogation from that rule, as within the Member State concerned.

If the option available under Article 9(3)(b) of Sixth Directive 77/388, as amended, is exercised, advertising services provided by a supplier established in the European Community to a customer situated in a non-Member state, whether that customer is the final customer or an intermediate customer, are deemed to be supplied within the European Community, provided that the effective use and enjoyment of the services, within the meaning of Article 9(3)(b) of Sixth Directive 77/388, as amended, take place within the Member State concerned. That is the case, with regard to advertising services, where the advertising material being supplied is disseminated from the Member State concerned.

Advertising services provided by a supplier established outside the European Community for his own clients cannot be liable to VAT under Article 9(3)(b) of Sixth Directive 77/388, as amended, even where that supplier acted in the capacity of intermediate customer in respect of an earlier supply of services, since such a supply of services does not fall within the scope of Article 9(2)(e) of that directive or, in more general terms, Article 9 of the directive as a whole, those being provisions which are expressly referred to in Article 9(3)(b) of that directive.

The fact that the supply of services for the purpose of Article 9(3)(b) of Sixth Directive 77/388, as amended, is subject to value added tax does not preclude the taxable person’s right to the refund of VAT where he satisfies the conditions laid down in Article 2 of Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory.

Whether a tax representative is appointed does not, of itself, have any effect on whether the services received or provided by the represented person are liable to VAT.

(1) OJ C 64, 8.3.2008.

18.4.2009

Official Journal of the European Union

C 90/6

Order of the Court (Third Chamber) of 27 November 2008 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — N.N. Renta SA v Tribunal Económico-Administrativo Regional de Cataluña (TEARC), Generalidad de Cataluña

(Case C-151/08) (1)

(Article 104(3) of the Rules of Procedure - Sixth VAT Directive - Article 33(1) - Definition of ‘turnover taxes’ - Duty on transfers of assets and documented legal transactions)

2009/C 90/09

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties

Applicant: N.N. Renta SA

Defendant: Tribunal Económico-Administrativo Regional de Cataluña (TEARC), Generalidad de Cataluña

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Cataluña — Interpretation of Art. 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) — Definition of ‘turnover taxes’ — National duty on capital transfers and documented legal transactions

Operative part of the order

Article 33(1) 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 91/680/EEC of 16 December 1991, must be interpreted as meaning that it does not preclude the charging of the variable or proportional amount of the duty on transfers of assets and documented legal transactions when it is chargeable on the conclusion of a purchase by an undertaking whose business activity consists of buying and selling immovable property or purchasing immovable property for development or letting.

(1) OJ C 158, 21.6.2008.

18.4.2009

Official Journal of the European Union

C 90/7

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 4 December 2008 — Friedrich G. Barth v Bundesministerium für Wissenschaft und Forschung

(Case C-542/08)

2009/C 90/10

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Friedrich G. Barth

Defendant: Bundesministerium für Wissenschaft und Forschung

Questions referred

Does the application of a limitation rule providing for a time-limit of three years in which to bring proceedings in cases such as those which are the subject of the main proceedings in which on grounds of a domestic law situation incompatible with Community law, prior to the judgment of the Court of Justice of the European Communities in Köbler (Case C-224/01), migrant workers were refused special length-of-service increments constitute for the purposes of Article 39 EC and Article 7(1) of Regulation (EEC) No 1612/68 (1) indirect discrimination against migrant workers or a restriction on the right to freedom of movement for workers guaranteed by those provisions?

If the first question is answered in the affirmative: Do Article 39 EC and Article 7(1) of Regulation (EEC) No 1612/68 — in cases such as those which are the subject of the main proceedings — preclude the application of such a limitation rule on special length-of-service increments refused to migrant workers prior to the judgment of the Court of Justice of the European Communities in Köbler (Case C-224/01) on grounds of a domestic law situation which was incompatible with Community law?

In circumstances such as those at issue in the main proceedings, in relation to claims seeking to enforce an entitlement to length-of-service increment previously denied — contrary to Community law — on the basis of unambiguously worded national legislation, does the principle of effectiveness preclude the application of limitation rules providing for a time-limit of three years in which to bring proceedings?

(1) OJ English Special Edition 1968 (II), p. 475

18.4.2009

Official Journal of the European Union

C 90/7

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 January 2009 — Gudrun Schwemmer v Agentur für Arbeit Villingen-Schwenningen — Familienkasse

(Case C-16/09)

2009/C 90/11

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Gudrun Schwemmer

Respondent: Agentur für Arbeit Villingen-Schwenningen — Familienkasse

Questions referred

Is the rule in Article 76(2) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) to be applied mutatis mutandis to Article 10(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (2) in cases where the parent with a right to claim does not apply for the family benefits to which he is entitled in the country of employment?

In the event that Article 76(2) of Regulation No 1408/71 is to be applied mutatis mutandis: on the basis of which discretionary considerations may the institution competent for family benefits in the country of residence apply Article 10(a) of Regulation No 574/72 as if benefits had been granted in the country of employment? May the discretion to assume that family benefits have been received in the country of employment be restricted where the person entitled intentionally does not apply for the family benefits to which he is entitled in the country of employment in order to cause detriment to the person entitled to child benefit in the country of residence?

(1) OJ English Special Edition 1971(II), p. 416.

(2) OJ English Special Edition 1972(I), p. 159.

18.4.2009

Official Journal of the European Union

C 90/8

Appeal brought on 19 January 2009 by ecoblue AG against the judgment of the Court of First Instance (First Chamber) delivered on 12 November 2008 in Case T-281/07: ecoblue AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-23/09 P)

2009/C 90/12

Language of the case: English

Parties

Appellant: ecoblue AG (represented by: C. Osterrieth, T. Schmitz, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Banco Bilbao Vizcaya Argentaria, SA

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the Court of First Instance of the European Communities of 12 November 2008 in the Case T-281/07;

—	to annul the decision of the First Chamber of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 April 2007 (Case R 0844/2006-1) regarding the community trade mark application with the application No. 002871598 ‘Ecoblue’

—	order OHIM to pay the costs

Pleas in law and main arguments

The appellant maintains that the Court of First Instance misapplied art. 8(1)(b) of the Community Trade Mark Regulation since the conflicting trademarks do not display the minimum degree of similarity required in order to establish a likelihood of confusion.

It is submitted that the Court of First Instance erred in finding that the distinctiveness of the earlier trademark, which formed the basis of the opposition, constitutes an essential requirement of the likelihood of confusion. The CFI failed to consider that aspect of the dispute and merely compared the two opposing trademarks from a visual, phonetic and conceptual perspective, as if the earlier trademark was a mark which enjoyed an average degree of distinctiveness.

It is also submitted that the CFI did not correctly apply the rule that consumers normally attach more importance to the first part of words. Since both word elements, ‘Eco’ and ‘blue’, are equally descriptive, the consumer automatically puts more emphasis on the first word, ‘Eco’, thereby recognising the distinctiveness of both trademarks.

It is further submitted that the CFI erred in law in failing to treat the conceptual difference between the opposing marks as being of primary importance.

18.4.2009

Official Journal of the European Union

C 90/8

Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 19 January 2009 — The Motor Insurers’ Bureau v Helphire (UK) Limited, Angel Assistance Limited

(Case C-26/09)

2009/C 90/13

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: The Motor Insurers’ Bureau

Defendants: Helphire (UK) Limited, Angel Assistance Limited

Questions referred

Question 1

(a)

Where the national law of the member state provides that the charges incurred by the victim of a motor accident in subsequently hiring a replacement vehicle are recoverable from the person responsible, does Article 1.4 of the Directive (1) permit MIB to exclude any liability for such charges where compensation will ultimately be paid over to the insurer who issued a post-accident policy covering the hire charges in the event of non-recovery from the person responsible?

(b)	If the answer to Question 1(a) is in the negative, is it permissible for the compensation by MIB to be limited to the premium, if any, payable to the insurers who have paid the hire charges?

Question 2

If the answer to Question 1(a) is in the negative:

Is the national court required to interpret the Uninsured Drivers Agreement so as to give effect to the Directive in accordance with the principles stated by the Court of Justice in Case C-106/89 Marleasing v La Comercial Internacional de Alimentacion [1990] ECR I-4135? In other words, does ‘the whole body of rules of national law’ to which the third indent of paragraph 120 of the judgment of the Court of Justice in Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kruz [2004] ECR I-8835 refers, include an agreement such as the Uninsured Drivers Agreement?

Question 3

If the answer to Question 1(a) is the negative:

Does Article 1.4 of the Directive have direct effect?

Question 4

If the answer to Question 3 is in the affirmative:

(a)

For the purposes of determining whether a body such as MIB is one against which the provisions of a directive which are capable of having direct effect may be relied upon:

(i)	Are the criteria identified by the Court of Justice in Case C-188/89 Foster v British Gas [1990] ECR 1-3313 the criteria by reference to which such a determination should be made?

(ii)	If the determination should be made by reference to some (but not all) of such criteria and/or to additional criteria, by reference to which criteria should the determination be made?

(b)	Is it solely for the domestic court to determine whether a body fulfils the relevant criteria?

(c)	Does a body with the characteristics of MIB fulfil the criteria such that the provisions of a directive which have direct effect may be relied upon against it?

(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

18.4.2009

Official Journal of the European Union

C 90/9

Reference for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands), lodged on 26 January 2009 — Oracle Nederland BV v Inspecteur der Belastingdienst Utrecht-Gooi/kantoor Utrecht

(Case C-33/09)

2009/C 90/14

Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Appellant: Oracle Nederland BV

Respondent: Inspecteur der Belastingdienst Utrecht-Gooi/kantoor Utrecht

Questions referred

Are Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) to be interpreted as meaning that a Member State wishing to make use of the possibility offered by those articles of (retaining) the exclusion of deduction in respect of categories of expenditure described as:

—	‘the provision of food and drink to the staff of the trader’;

—	‘giving business gifts or other gifts to persons in relation to whom, if they had been charged or were to be charged the relevant turnover tax, such tax would be entirely or mainly non-deductible’;

—	‘providing the staff of the trader with accommodation’;

—	‘providing the staff of the trader with opportunities for recreation’

has satisfied the condition requiring the designation of a category of adequately defined goods and services?

If the answer to the first question is in the affirmative for one of the categories listed, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for a national statutory provision, such as that which is the subject of the dispute, which was enacted before the Sixth Directive entered into force and on the basis of which a taxable person may not deduct in full the turnover tax paid on the acquisition of certain goods or services because a fee was charged in respect thereof which incurred turnover tax, but may only deduct an amount equivalent to the amount of tax owed in respect of the transaction concerned?

If, in respect of ‘the provision of food and drink’, the condition is satisfied which requires the designation of a category of adequately defined goods and services, does Article 17(6) of the Sixth Directive preclude an amendment to an existing exclusion of the deduction, from which amendment it seems likely that in principle the scope of the exclusion will be restricted but where it cannot be ruled out that in an individual case in a particular year the scope of the restriction of the deduction might be extended, in particular through the fixed-rate nature of the amended provision?

(1) Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 16).

(2) 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).

18.4.2009

Official Journal of the European Union

C 90/10

Reference for a preliminary ruling from the Tribunal du travail, Brussels (Belgium) made on 26 January 2009 — Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)

(Case C-34/09)

2009/C 90/15

Language of the case: French

Referring court

Tribunal du travail, Brussels

Parties to the main proceedings

Applicant: Gerardo Ruiz Zambrano

Defendant: Office national de l’Emploi (ONEM)

Questions referred

Do Articles 12, 17 and 18 of the Treaty establishing the European Community, or one or more of them when read separately or in conjunction, confer a right of residence upon a citizen of the Union in the territory of the Member State of which that citizen is a national, irrespective of whether he has previously exercised his right to move within the territory of the Member States?

Must Articles 12, 17 and 18 of the Treaty establishing the European Community, in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights (adopted by the European Council of Nice on 7 December 2000, published in its current version in OJ 2007 C 303), be interpreted as meaning that the right which they recognise, without discrimination on the grounds of nationality, in favour of any citizen of the Union to move and reside freely in the territory of the Member States means that, where that citizen is an infant dependent on a relative in the ascending line who is a national of a non-member State, the infant’s enjoyment of the right of residence in the Member State in which he resides and of which he is a national must be safeguarded, irrespective of whether the right to move freely has been previously exercised by the child or through his legal representative, by coupling that right of residence with the useful effect whose necessity is recognised by Community case-law (Case C-200/02 Zhu and Chen), by granting the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who has sufficient resources and sickness insurance, the secondary right of residence which that same national of a non-member State would have if the child who is dependent upon him were a Union citizen who is not a national of the Member State in which he resides?

Must Articles 12, 17 and 18 of the Treaty establishing the European Community, in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights, be interpreted as meaning that the right of a minor child who is a national of a Member State to reside in the territory of the State in which he resides must entail the grant of an exemption from holding a work permit to the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who, were it not for the requirement to hold a work permit under the national law of the Member State in which he resides, fulfils the condition of sufficient resources and the possession of sickness insurance by virtue of paid employment making him subject to the social security system of that State, so that the child’s right of residence is coupled with the useful effect recognised by Community case-law (Case C-200/02 Zhu and Chen) in favour of a minor child who is a European citizen with a nationality other than that of the Member State in which he resides and is dependent upon a relative in the ascending line who is a national of a non-member State?

18.4.2009

Official Journal of the European Union

C 90/11

Appeal brought on 30 January 2009 by Société des plantations de Mbanga SA (SPM) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 13 November 2008 in Case T-128/05 SPM v Council and Commission

(Case C-39/09 P)

2009/C 90/16

Language of the case: French

Parties

Appellant: Société des plantations de Mbanga SA (SPM) (represented by: A. Farache, avocat)

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

Form of order sought

The appellant claims the Court should:

—

primarily:

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

—	order the Commission to pay damages and the costs of the case at first instance and on appeal, including those of the appellant;

—

in the alternative:

—	refer the case back to the Court of First Instance for it to rule again and make a decision as to the amount of damages to be paid.

Pleas in law and main arguments

The appellant essentially puts forward two pleas in law in support of its appeal.

First, it submits that the Court of First Instance erred in law in holding that the Community system for the import of bananas does not manifestly and seriously infringe the principle of maintaining effective competition, a principle which, according to the appellant, is a rule of law intended to confer rights on individuals.

In this connection the appellant alleges, first, the failure by the Court of First Instance to take into account the objectives of competition in so far as it based its judgment solely on the general objectives pursued specifically in the context of the organisation of the common market in the banana sector. Secondly, the appellant claims that the Court of First Instance incorrectly interpreted the connection between the Community legislation and the anti-competitive practices existing on the banana market in so far as it refused to concede that the Community provisions enable, by means of import licences, the grant of economic advantages to certain privileged operators, whose position on the market is strengthened by the existing rules.

By its second plea, the appellant pleads the infringement, by the Court of First Instance, of general principles of law and, inter alia, of the principle of sound administration in so far as it held that that principle, in itself, is not a rule of law intended to confer rights on individuals. That principle has been affirmed many times in case-law and has the effect, in the present case, of putting the Commission under an obligation to take into consideration the particular circumstances of the market and of the producers who are not able to obtain the status of operators at the time of the adoption of the Community legislation.

18.4.2009

Official Journal of the European Union

C 90/11

Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 29 January 2009 — Astra Zeneca UK Limited v Commissioners for Her Majesty's Revenue and Customs

(Case C-40/09)

2009/C 90/17

Language of the case: English

Referring court

VAT and Duties Tribunal, Manchester

Parties to the main proceedings

Applicant: Astra Zeneca UK Limited

Defendant: Commissioners for Her Majesty's Revenue and Customs

Questions referred

In the circumstances of this case, where an employee is entitled under the terms of his or her contract of employment to opt to take part of his or her remuneration as a face value voucher, is Article 2(1) of the Sixth Council Directive 77/388/EEC (1) [now Article 2(1)(c) of the Principal VAT Directive] to be interpreted such that the provision of that voucher by the employer to the employee constitutes a supply of services for consideration?

If the answer to question 1 is no, is Article 6(2)(b) [now Article 26(1)(b)] to be interpreted as requiring the provision of the voucher by the employer to the employee in accordance with the contract of employment to be treated as a supply of services, in circumstances where the voucher is to be used by the employee for his or her private purposes?

If the provision of the voucher is neither a supply of services for consideration within the meaning of Article 2(1) nor is to be treated as a supply of services under Article 6(2)(b), is Article 17(2) [now Article 168] to be interpreted so as to permit the employer to recover the value added tax it has incurred in purchasing and providing the voucher to the employee in accordance with the contract of employment in circumstances where the voucher is to be used by the employee for his or her private purposes?

(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

18.4.2009

Official Journal of the European Union

C 90/12

Action brought on 30 January 2009 — Commission of the European Communities v Republic of Estonia

(Case C-46/09)

2009/C 90/18

Language of the case: Estonian

Parties

Applicant: Commission of the European Communities (represented by: E. Randvere and K. Simonsson)

Defendant: Republic of Estonia

Form of order sought

The applicant claims that the Court should:

—

declare that, since it has not correctly transposed into national law the provisions of Directive 2000/59/EC (1) of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues, the Republic of Estonia has failed to fulfil its obligations under Article 11 of Directive 2000/59/EC;

—	order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

It follows from Article 11(2)(a) of Directive 2000/59 that the Republic of Estonia is under an obligation to establish criteria in order to select ships, other than fishing vessels and recreational craft authorised to carry no more than 12 passengers, for inspection.

Article 11(2)(c) of Directive 2000/59 provides that, if the relevant authority is not satisfied with the results of this inspection, it must ensure that the ship does not leave the port until it has delivered its ship-generated waste and cargo residues to a port reception facility in accordance with Articles 7 and 10.

The Republic of Estonia has stated its intention to supplement the Estonian legislation in order to correctly transpose those provisions of the directive. The Commission does not have any information on the adoption of such amendments.

(1) OJ 2000 L 332, p. 81

18.4.2009

Official Journal of the European Union

C 90/12

Reference for a preliminary ruling from the Tingsrätt Stockholm (Sweden) lodged on 6 February 2009 — Konkurrensverket v TeliaSonera Sverige AB

(Case C-52/09)

2009/C 90/19

Language of the case: Swedish

Referring court

Tingsrätt Stockholm

Parties to the main proceedings

Applicant: Konkurrensverket

Intervener: Tele2 Sverige Aktiebolag

Defendant: TeliaSonera Sverige AB

Questions referred

Under what conditions does an infringement of Article 82 EC arise on the basis of a difference between the price charged by a vertically integrated dominant undertaking for the sale of input ADSL products to competitors on the wholesale market and the price which the same undertaking charges on the end-user market?

2.	Is it only the prices of the dominant undertaking to end-users which are relevant or should the prices of competitors on the end-user market also be taken into account in the consideration of question 1?

3.	Is the answer to question 1 affected by the fact that the dominant undertaking does not have any regulatory obligation to supply on the wholesale market but has, rather, chosen to do so on its own initiative?

4.	Is an anti-competitive effect required in order for a practice of the kind described in question 1 to constitute abuse and, if so, how is that effect be to be determined?

5.	Is the answer to question 1 affected by the degree of market strength enjoyed by the dominant undertaking?

6.	Is the dominant position on both the wholesale market and the end-user market of the undertaking engaging in the practice required in order for a practice of the kind described in question 1 to constitute abuse?

7.	For a practice such as that described in question 1 to constitute abuse, must the good or service supplied by the dominant undertaking on the wholesale market be indispensable to competitors?

8.	Is the answer to question 1 affected by the question whether the supply is to a new customer?

9.	Is an expectation that the dominant undertaking will be able to recoup the losses it has incurred required in order for a practice of the kind described in question 1 to constitute abuse?

10.	Is the answer to question 1 affected by the question whether a change of technology is involved on a market with a high investment requirement, for example with regard to reasonable establishment costs and the possible need to sell at a loss during an establishment phase?

18.4.2009

Official Journal of the European Union

C 90/13

Reference for a preliminary ruling from House of Lords (United Kingdom) made on 6 February 2009 — Commissioners for Her Majesty's Revenue and Customs v Loyalty Management UK Limited

(Case C-53/09)

2009/C 90/20

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: Loyalty Management UK Limited

Questions referred

‘In circumstances where a taxable person (the “Promoter”) is engaged in the business of running a multi-participant customer loyalty rewards programme (the “Scheme”), pursuant to which the Promoter enters into various agreements as follows:

(i)	Agreements with various companies referred to as “Sponsors” under which the Sponsors issue “Points” to customers of the Sponsors (“Collectors”) who purchase goods or services from the Sponsors and the Sponsors make payments to the Promoter;

(ii)	Agreements with the Collectors which include provisions such that, when they purchase goods and/or services from the Sponsors, they will receive Points which they can redeem for goods and/or services; and

(iii)

Agreements with various companies (known as “Redeemers”) under which the Redeemers agree, among other things, to provide goods and/or services to Collectors at a price which is less than would otherwise be payable or for no cash payment when the Collector redeems the Points and in return the Promoter pays a “Service Charge” which is calculated according to the number of Points redeemed with that Redeemer during the relevant period.

1.	How are Articles 14, 24 and 73 of Council Directive 2006/112/EC of 28 November 2006 (1) (formerly Articles 5, 6 and 11(A)(1)(a) of Council Directive 77/388/EEC of 17 May 1977 (2)) to be interpreted where payments are made by the Promoter to the Redeemers?

In particular, are those provisions to be interpreted such that the payments of the kind made by the Promoter to Redeemers are to be characterised as:

(a)	consideration solely for the supply of services by the Redeemers to the Promoter; or

(b)	consideration solely for the supply of goods and/or services by the-Redeemers to the Collectors; or

(c)	consideration in part for the supply of services by the Redeemers to the Promoter and in part for the supply of goods and/or services by the Redeemers to the Collectors?

If the answer to question 2 is (c), so that the Service Charge is consideration for two supplies by the Redeemers, one to the Promoter and the other to the Collectors, what are the criteria laid down by Community law to determine how a charge such as the Service Charge is to be apportioned between those two supplies?

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

(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’

18.4.2009

Official Journal of the European Union

C 90/14

Reference for a preliminary ruling from House of Lords (United Kingdom) made on 9 February 2009 — Commissioners for Her Majesty's Revenue and Customs v Baxi Group Limited

(Case C-55/09)

2009/C 90/21

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: Baxi Group Limited

Questions referred

‘In circumstances where

A.	a taxable person runs a business promotion scheme operated by an advertising and marketing company under which ‘points’ are issued to the taxable person's customers in connection with the purchase of goods by the customers from the taxable person;

B.	customers redeem the points by obtaining reward goods from the advertising and marketing company without payment;

the taxable person has agreed with that other company to pay it the recommended retail price of the reward goods

1.	How are Articles 14, 24 and 73 and 168 of the VAT Directive (1) (formerly Articles 5, 6 and 11(A)(1)(a) and 17(2) of the Sixth Directive (2)) to be interpreted as regards the payments by the taxable person to the other company?

In particular, are those provisions to be interpreted such that the payments by the taxable person to the other company are to be characterised:

(a)	solely as consideration for a supply of services by the other company to the taxable person;

(b)	solely as third party consideration for the supply of goods by the other company to the customers;

(c)	as consideration in part for the supply of services by the other company to the taxable person and in part for the supply of goods by the other company to the customers; or

(d)	as consideration for supplies both of advertising and marketing services and of reward goods by the other company to the taxable person?

If the answer to question 2 is that such payments are to be characterised in part as consideration for a supply of services by the other company to the taxable person and in part as third party consideration from the taxable person to the other company in respect of the other company's supply of goods to the customers, what are the criteria laid down by Community law to determine how the payment is to be apportioned between those two supplies?

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

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

18.4.2009

Official Journal of the European Union

C 90/15

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Campania (Italy) lodged on 11 February 2009 — Lucio Rubano v Regione Campania, Comune di Cusano Mutri

(Case C-60/09)

2009/C 90/23

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale della Campania

Parties to the main proceedings

Applicant: Lucio Rubano

Defendants: Regione Campania, Comune di Cusano Mutri

Questions referred

1.	Is it compatible with Articles 152 and 153 of the Treaty on European Union that there is a single pharmacy in municipalities with a population of fewer than 4 000 inhabitants?

Is it compatible with Articles 152 and 153 of the Treaty on European Union to make the establishment of a second pharmacy in municipalities with a population of over 4 000 inhabitants subject to conditions such as (i) in order to be taken into account, the population in excess of that number must represent at least 50 per cent of the number triggering the pharmacy requirement, (ii) the new pharmacy must be at least 3 000 metres away from the existing pharmacy and (iii) there must be special needs on the part of the pharmacy service, related to the local terrain and road conditions, to be assessed both by the health units (local health offices) and by the local association of pharmacists or, in any event, by the authorities competent for matters concerning the organisation and supervision of the pharmacy service?

18.4.2009

Official Journal of the European Union

C 90/15

Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2009 — Association of the British Pharmaceutical Industry v Medicines and Healthcare Products Regulatory Agency

(Case C-62/09)

2009/C 90/24

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Association of the British Pharmaceutical Industry

Defendant: Medicines and Healthcare Products Regulatory Agency

Questions referred

Does Article 94(1) of Directive 2001/83/EC (1) preclude a public body forming part of a national public health service, in order to seek to reduce its overall expenditure on medicines, from implementing a scheme which offers financial incentives to medical practices (which may in turn provide a financial benefit to the prescribing doctor) to prescribe a specific named medicine supported by the incentive scheme that is either:

(a)	a different prescription medicine to the medicine previously prescribed by thedoctor to the patient; or

(b)	a different prescription medicine to that which otherwise might have beenprescribed to the patient but for the incentive scheme,

where such a different prescription medicine is from the same therapeutic class of medicines used for treatment of the patient's particular condition.

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

18.4.2009

Official Journal of the European Union

C 90/16

Action brought on 13 February 2009 — Commission of the European Communities v French Republic

(Case C-64/09)

2009/C 90/25

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

The applicant claims the Court should:

—

declare that, by failing to adopt all the laws and regulations necessary to ensure the complete and correct implementation of Article 2(13), Article 4(2)(a), Article 5(3) and (4), Article 6(3), Article 7(1) and Article 8(3) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles, (1) the French Republic has failed to fulfil its obligations under that directive;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

In support of its action, the Commission puts forward seven pleas in law alleging the incorrect implementation into French law of some provisions of Directive 2000/53/EC.

The applicant submits, first of all, that the implementation of the definition in Article 2(13) relating to ‘dismantling information’ for end-of life vehicles has not been carried out in a sufficiently clear and precise manner in so far as the corresponding national provision is substantially more restrictive in scope than the directive and above all does not mention any connection with the objective of correct and environmentally sound treatment referred to by the Community legislature.

Secondly, according to the applicant, the implementation out of time of Article 4(2)(a) has resulted in vehicles, materials and components, not covered by the exemptions and containing lead, mercury, cadmium or hexavalent chromium, being present on the market for 18 months, since the relevant national provisions were applicable only to vehicles received and classified by type from 31 December 2004, whereas Article 4(2)(a) of the Directive refers, for its part, to 1 July 2003.

The applicant also submits that the procedure laid down in Article 5(3) relating to the issue of a certificate of destruction of an end-of life vehicle has not been correctly reproduced in French law, which might create confusion, in particular for the owners of vehicles from other Member States. The Commission criticises specifically, in that connection, the fact that the certificate of destruction is delivered not at the time of the transfer of the vehicle but only after its physical destruction and that that certificate is delivered not to the holder of the end-of use vehicle but to the prefect of the département where the vehicle was registered.

Fourthly, the Commission criticises the implementation of Article 5(4), which prevents that provision from being effective in so far as it allows some of the authorised facilities — the ‘démolisseurs agréés’ (the authorised demolishers) — to refuse to accept end-of use vehicles and fails to provide for a system to recompense those demolishers.

Likewise, the implementation of Article 6(3) fails to have regard to the concept of ‘stripping’, referring to the first stage of the treatment operations of end-of use vehicles, namely that of the removal of those parts which are easily dismantled, prior to the depollution operation.

The applicant also criticises the implementation of Article 7(1) in so far as the French authorities encourage the recycling of vehicle components ‘whenever the technical and economic circumstances allow so’, whereas the Directive sets out a more binding obligation to recycle ‘when environmentally viable’.

Lastly, it stresses that Article 8(3) obliges the Member States to take express measures to ensure vehicle manufacturers and component producers provide dismantling information, in the form of manuals or by means of electronic media, for each type of new vehicle put on the market.

(1) OJ 2000 L 269, p. 34

18.4.2009

Official Journal of the European Union

C 90/17

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 February 2009 — Gebr. Weber GmbH v Jürgen Wittmer

(Case C-65/09)

2009/C 90/26

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Gebr. Weber GmbH

Defendant: Jürgen Wittmer

Questions referred

Are the provisions of the first and second subparagraphs of Article 3(3) of Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees to be interpreted as precluding a national statutory provision under which, in the event of a lack of conformity of the consumer goods delivered, the seller may refuse the form of remedy required by the consumer when the remedy would result in the seller incurring costs which, compared with the value the consumer goods would have if there were no lack of conformity, and with the significance of the lack of conformity, would be unreasonable (absolutely disproportionate)?

If the answer to the first question is in the affirmative: are the provisions of Article 3(2) and the third subparagraph of Article 3(3) of that directive to be interpreted as meaning that, where the goods are brought into conformity by replacement, the seller must bear the costs of removing the non-conforming consumer goods from a thing into which, in a manner consistent with their nature and purpose, the consumer has incorporated them?

(1) OJ 1999 L 171, p. 12.

18.4.2009

Official Journal of the European Union

C 90/17

Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Republic of Lithuania) lodged on 16 February 2009 — Kirin Amgen, Inc. v Lietuvos Respublikos valstybinis patentų biuras

(Case C-66/09)

2009/C 90/27

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Claimant: Kirin Amgen, Inc.

Defendant: Lietuvos Respublikos valstybinis patentų biuras

Questions referred

1.	Is the date, referred to in Article 19(2) of Regulation No 1768/92, (1) upon which that regulation enters into force to be understood for Lithuania as the date of its accession to the European Union?

2.	Should the answer to the first question be in the affirmative, what is the relationship between Article 19 and Article 7 of Regulation No 1768/92 when calculating the six-month period and which of those articles is it necessary to apply in a case?

3.	Did an authorisation to place a product on the market in the European Community enter into force unconditionally in the Republic of Lithuania from the date of its accession to the European Union?

4.	Should the answer to the third question be in the affirmative, can the entry into force of the authorisation to place the product on the market be equated to its grant for the purposes of Article 3(b) of Regulation No 1768/92?

(1) Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1).

18.4.2009

Official Journal of the European Union

C 90/17

Appeal brought on 17 February 2009 by Nuova Agricast Srl and Cofra Srl against the judgment delivered by the Court of First Instance (First Chamber) on 2 December 2008 in Joined Cases T-362/05 and T-363/05 Nuova Agricast Srl and Cofra Srl v Commission

(Case C-67/09 P)

2009/C 90/28

Language of the case: Italian

Parties

Appellants: Nuova Agricast Srl, Cofra Srl (represented by: M. A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

Principal Form of order sought

—	Set aside the judgment under appeal in so far as it finds that the Commission’s letter of 29 May 2000 does not contain an untruth and therefore reject the Commission’s counterclaim on its merits;

—

by giving a decision on the questions included in the measures of organisation of procedure of 2 March 2006, declare that, as a result of its conduct as described in the applications at first instance, the Commission flagrantly and gravely infringed Community law, resulting in financial loss to the appellants;

—	refer the case back to the Court of First Instance to adjudicate on the questions which were not included in the measures of organisation of procedure of 2 March 2006; and

—

with regard to costs:

(i)	order the Commission to pay the costs in relation to the proceedings before both Courts, or

(ii)	reserve the costs;

or, in the event that the case cannot be decided on the merits:

In the alternative

—	Set aside the judgment under appeal in so far as it finds that the Commission’s letter of 29 May 2000 does not contain an untruth and therefore reject the Commission’s counterclaim on its merits;

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

—	reserve the costs.

Pleas in law and main arguments

FIRST PLEA OF ILLEGALITY: the Court of First Instance erred in law in so far as it considered that the Commission was entitled to authorise a scheme which is contrary to the principles of legal certainty, the protection of legitimate expectations and non-discrimination as between undertakings participating in the same aid scheme. As a consequence, the Court of First Instance infringed Article 87 EC and the Community case-law which establishes that the procedure laid down in Article 88 EC can never constitute a mechanism for circumventing or infringing the rules and principles of Community law and that the Commission cannot authorise schemes which infringe other rules and principles of Community law.

The appellants submit that, by interpreting the 1997 decision as it did at paragraph 81 of the judgment under appeal, the Court of First Instance interpreted the entire aid scheme authorised by that decision in such a manner as to render its interpretation incompatible with the principles of legal certainty, the protection of legitimate expectations and non-discrimination because the scheme, thus interpreted, while it provided specific assurances to the undertakings which had submitted an application for the first time in the second tender procedure in 1999 that they too would be able, if necessary, to reformulate those applications, made it logically impossible for them to do so because, after 31 December 1999, it was never possible for that tender procedure to be proceeded with, even on the basis that it was restricted to reformulated applications. The appellants therefore conclude that, thus interpreted, the scheme infringed not only the principles of legal certainty and the protection of legitimate expectations but also the principle of non-discrimination on the ground that only the undertakings which participated for the first time in the second tender procedure in 1999 were not permitted to do what was permitted to all the undertakings which participated in the earlier calls.

SECOND PLEA OF ILLEGALITY: The Court of First Instance erred in law in so far as it omitted to ascertain whether the interpretation which it gave of the approval decision of 1997 could be substituted by another interpretation which complied with the abovementioned principles of law. The Court of First Instance therefore infringed the case-law which imposes upon that court a duty to carry out such an assessment.

The appellants maintain that, by interpreting in an abstract and general manner the scheme thus authorised by the 1997 decision, the Court of First Instance omitted to ascertain whether the interpretation which it gave of the approval decision of 1997 could be substituted by another interpretation which complied with the abovementioned principles of law and therefore erred in law, since it infringed the case-law which establishes that if the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the EC Treaty rather than to the interpretation which leads to its being incompatible with the Treaty.

THIRD PLEA OF ILLEGALITY: The appellants submit that, in so far as it found that the letter of 29 May 2000 does not contain an untruth, the judgment under appeal (at paragraphs 50 and 51) is vitiated by an error in the interpretation of that letter and by distortion of the facts and should be set aside. The appellants also seek the rejection on its merits of the Commission’s counterclaim, which seeks the removal from the text of the applications the appellants’ allegation that the Commission told an ideologically motivated untruth in drafting the letter of 29 May 2000 in such a way as to give the impression that it was the Italian authorities which had failed even to mention at the meeting held on 16 May 2000 the existence of undertakings within the category of the third tender procedure

18.4.2009

Official Journal of the European Union

C 90/19

Appeal brought on 23 February 2009 by Volker Mergel, Klaus Kampfenkel, Burkart Bill and Andreas Herden against the judgment of the Court of First Instance (Second Chamber) delivered on 16 December 2008 in Case T-335/07 Volker Merkel and Others v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-80/09 P)

2009/C 90/29

Language of the case: German

Parties

Appellants: Volker Mergel, Klaus Kampfenkel, Burkart Bill and Andreas Herden (represented by: G.P. Friderichs, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

—	set aside the judgment of the Court of First Instance (Second Chamber) of 16 December 2008 in Case T-335/07, which was served upon the appellants by fax on 18 December 2008;

—	annul the decision of the Fourth Board of Appeal of OHIM of 25 June 2007 (Case R0299/2007-4);

—	order the respondent to pay the costs.

Pleas in law and main arguments

The subject-matter of the proceedings is the question whether the term ‘Patentconsult’ for services in Classes 35, 41 and 42 can benefit from protection as a trade mark. The Court of First Instance considered that the term ‘Patentconsult’ was an indication serving to designate the service at issue in a direct and concrete manner.

The appeal is based on the wrong interpretation and application of Article 7(1)(b) and (c) of Regulation No 40/94.

By its first plea, the appellants claim that the Court committed an error of law in classifying the trade mark at issue as a neologism that was not noticeably different from the sum of its descriptive elements. According to the appellant, the Court found that the mark at issue was not noticeably different on the ground that the mark ‘Patentconsult’ followed the structure commonly used for similar designations such as ‘patent consulting’ or ‘patent consultancy’. However, that classification was wrong, precisely because ‘Patentconsult’ did not follow the common — namely grammatically correct — structure, but diverged from it and accordingly represented a striking neologism that was noticeably different from the mere sum of the elements ‘patent’ and ‘consult’.

By its second plea, the appellant claims that the Court wrongly assessed the exclusively descriptive character of the mark ‘Patentconsult’. The Court considered that, in respect of that descriptive character, it was immaterial whether other terms could be used for the protected services. However, the appellants take the view that it is precisely in order to be able to claim that there is a ‘need to leave free’ (‘Freihaltebedürfnis’), that a term other than ‘Patentconsult’ must be used. It is precisely the grammatically incorrect term ‘Patentconsult’ which is not suitable.

Finally, by its third plea, the appellant claims that the Court was wrong to consider that the respondent’s earlier decision concerning the mark ‘Netmeeting’ and the judgment of the Court of Justice in Case C-383/99 P concerning the mark ‘Baby-dry’ were not relevant. According to the judgment in Case C-383/99 P, a perceptible difference to the terms used in the common parlance of the relevant class of consumers is apt to confer distinctive character. That case-law has to be followed, in order to guarantee consistency and the reliability of decisions of the Community courts.

18.4.2009

Official Journal of the European Union

C 90/19

Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 26 February 2009 — X v Skatteverket

(Case C-84/09)

2009/C 90/30

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: X

Defendant: Skatteverket

Questions referred

Are Articles 138 and 20 of Council Directive [2006/112/EC] on the common system of value added tax (1) to be interpreted as meaning that the transport out of the territory of the State of origin must begin within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

2.	Similarly, are those Articles to be interpreted as meaning that the transport must end in the country of destination within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

3.	Would the answers to questions 1 and 2 be affected if that which is acquired is a new means of transport and the person acquiring the goods is an individual who intends ultimately to use the means of transport in a particular Member State?

4.	In connection with an intra-Community acquisition, at which time must the assessment be made as to whether a means of transport is new in accordance with Article 2(2)(b) of Council Directive [2006/112/EC] on the common system of value added tax?

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

18.4.2009

Official Journal of the European Union

C 90/20

Reference for a preliminary ruling from the Amtsgericht Schorndorf (Germany) lodged on 2 March 2009 — Ingrid Putz v Medianess Electronics GmbH

(Case C-87/09)

2009/C 90/31

Language of the case: German

Referring court

Amtsgericht Schorndorf

Parties to the main proceedings

Applicant: Ingrid Putz

Defendant: Medianess Electronics GmbH

Questions referred

Are the provisions of Article 3(2), and the third subparagraph of Article 3(3), of Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees to be interpreted as precluding a national statutory provision under which a seller, in the event that it has restored a consumer product to conformity with a contract of sale by way of replacement, does not have to pay the costs of the installation, in a particular unit, of the subsequently delivered product, in the case where the consumer has properly installed the contractually defective consumer product, if installation was not originally a contractual requirement?

Are the provisions of Article 3(2), and the third subparagraph of Article 3(3), of Directive 1999/44/EC to be interpreted as meaning that a seller, in the event that it has restored a consumer product to conformity with a contract of sale by way of replacement, has to pay the costs of disconnection, from a particular unit, of the contractually defective consumer product, in the case where the consumer has properly installed the consumer product?

(1) Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).

18.4.2009

Official Journal of the European Union

C 90/20

Appeal brought on 3 March 2009 by General Química, SA, Repsol Química, SA and Repsol YPF, SA against the judgment delivered on 18 December 2008 in Case T-85/06 General Química and Others v Commission of the European Communities

(Case C-90/09 P)

2009/C 90/32

Language of the case: Spanish

Parties

Appellants: General Química SA, Repsol Química SA and Repsol YPF, SA (represented by: J.M. Jiménez-Laiglesia Oñate and J. Jiménez-Laiglesia Oñate, abogados)

Other party to the proceedings: Commission of the European Communities

Forms of order sought

The appellants claim that the Court should:

—	set aside the judgment of 18 December 2008 in Case T-85/06 in so far as it rejects the plea in law alleging manifest error of assessment and failure to state sufficient reasons for the finding that the applicants are jointly and severally liable;

—

annul Article 1(g) and (h) and Article 2(d) of the Decision in so far as they declare that Repsol YPF and Repsol Química, together with General Chímica, are jointly and severally liable for an infringement of Article 81(1) of the EC Treaty and, in the lesser alternative, in so far as the Decision finds against Repsol YPF, in both cases ordering an appropriate reduction of the penalty.

Pleas in law and main arguments

The appeal criticises the rejection, in the judgment under appeal, of the plea in law whereby annulment of the Decision was sought on grounds relating to the attribution of liability to Repsol Química and Repsol YPF in respect of conduct on the part of General Química, SA. In the judgment under appeal, the Court of First Instance errs in using a criterion for the attribution of liability which is unrelated to the facts and circumstances of the case or to the infringement committed by General Química. The Court of First Instance wrongly attributes to the parent company liability which lies with a subsidiary, by concluding that only one economic entity exists, merely because the parent company may, or is able to, wield a decisive influence over the subsidiary. Nor does the Court of First Instance make it clear how the evidence which it selects reveals the existence of decisive influence; at the same time, evidence in the case-file is either ignored or distorted. Moreover, the Court of First Instance misapplies the presumption established by case-law in respect of cases where the parent company holds all of the share capital, and reverses the burden of proof without explaining, moreover, the kind of evidence that must be produced in order to rebut the presumption. The judgment places no limits on the discretion enjoyed by the Commission in relation to the assessment and appraisal of the evidence produced in an attempt to rebut the presumption. This means that, in reality, the presumption is not open to rebuttal. Similarly, and apart from the fact that the liability of Repsol YPF is neither precisely identified nor free of ambiguity, the Court of First Instance wrongly extends automatically to the parent company at the head of the group the presumption based on the mere capacity to exercise a decisive influence. Liability is attributed to the group of companies and not to the undertaking as an economic unit, such liability being moreover irrefutable.

18.4.2009

Official Journal of the European Union

C 90/22

Judgment of the Court of First Instance of 4 March 2009 — Tirrenia di Navigazione and Others v Commission

(Joined Cases T-265/04, T-292/04 and T-504/04) (1)

(State aid - Maritime transport - Subsidies paid by the Italian authorities to regional undertakings - Decision declaring the aid in part compatible and in part incompatible with the common market - Action for annulment - Admissibility - Legal interest in bringing proceedings - New or existing aid - Duty to state reasons - Article 4(3) of Regulation (EEC) No 3577/92)

2009/C 90/33

Language of the case: Italian

Parties

Applicants in Case T-265/04: Tirrenia di Navigazione SpA, formerly Tirrenia di Navigazione SpA and Adriatica di Navigazione SpA, (Naples, Italy) (represented by: G. Roberti, A. Franchi and G. Belletti, initially, and G. Roberti and G. Belletti, subsequently, lawyers)

Applicants in Case T-292/04: Caremar SpA; Toremar SpA (Leghorn (Livorno), Italy); Siremar SpA (Palermo, Italy); and Saremar SpA (Cagliari, Italy) (represented by: G. Roberti, A. Franchi and G. Belletti, initially, and G. Roberti and G. Belletti, subsequently, lawyers)

Applicant in Case T-504/04: Navigazione Libera del Golfo SpA (Naples, Italy) (represented by: S. Ravenna and A. Abate, lawyers)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, Agents)

Interveners in support of the defendant: Caremar SpA (represented by: G. Roberti, A. Franchi and G.Belletti, initially, and G. Roberti and G. Belletti, subsquently, lawyers) and the Italian Republic (represented by: M. Fiorilli, Agent)

Re:

Annulment in part of the Commission Decision No 2005/163/EC of 16 March 2004 concerning State aid granted by Italy to the shipping companies Adriatica, Caremar, Siremar, Saremar and Toremar (Gruppo Tirrenia) (OJ 2005 L 53, p. 29).

Operative part of the judgment

The Court:

1.	In Cases T-265/04 and T-292/04, annuls Commission Decision No 2005/163/EC of 16 March 2004 concerning State aid granted by Italy to the shipping companies Adriatica, Caremar, Siremar, Saremar and Toremar (Gruppo Tirrenia);

2.	In Case T-504/04, declares that the action has become devoid of purpose;

3.	In Case T-265/04, orders the Commission to bear its own costs and to pay those of Caremar SpA, Siremar SpA, Saremar SpA and Toremar SpA;

4.	In Case T-504/04, orders the Commission to bear its own costs and to pay those of Navigazione Libera del Golfo SpA;

5.	In Case T-504/04, orders the Italian Republic and Caremar to bear their own costs.

(1) OJ C 239, 25.9.2004.

18.4.2009

Official Journal of the European Union

C 90/22

Judgment of the Court of First Instance of 10 March 2009 — Aker Warnow Werft and Kvaerner v Commission

(Case T-68/05) (1)

(State aid - Shipbuilding - Former German Democratic Republic - Aid paid to cover losses from shipbuilding contracts - Competition aid - No excess payment)

2009/C 90/34

Language of the case: English

Parties

Applicants: Aker Warnow Werft GmbH (Rostock, Germany); and Kvaerner ASA (Oslo, Norway) (represented by: M. Schütte, lawyer, and B. Immenkamp, Solicitor, and then by M. Schütte)

Defendant: Commission of the European Communities (represented by: V. Kreuschitz and L. Flynn, acting as Agents)

Re:

Application for annulment of Commission Decision 2005/374/EC of 20 October 2004 on a State aid measure implemented by Germany for Kvaerner Warnow Werft (OJ 2005 L 120, p. 21).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision 2005/374/EC of 20 October 2004 on a State aid measure implemented by Germany for Kvaerner Warnow Werft;

2.	Orders the Commission to bear its own costs and pay those incurred by Aker Warnow Werft GmbH and Kvaerner ASA.

(1) OJ C 106, 30.4.2005.

18.4.2009

Official Journal of the European Union

C 90/23

Judgment of the Court of First Instance of 11 March 2009 — Borax Europe v Commission

(Case T-121/05) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents and sound recordings - Refusal of access - Exception relating to the protection of the privacy and integrity of the individual - Exception relating to the protection of the decision-making process)

2009/C 90/35

Language of the case: English

Parties

Applicant: Borax Europe Ltd (Guildford, United Kingdom) (represented by: D. Vandermeersch and K. Nordlander, lawyers)

Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and I. Chatzigiannis, acting as Agents)

Re:

Application for annulment of the decision of 17 January 2005 of the Secretary-General of the Commission refusing access to certain documents and sound recordings in connection with the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967(I), p. 234)

Operative part of the judgment

The Court:

Annuls the decision of 17 January 2005 of the Secretary-General of the Commission refusing access to certain documents and sound recordings in connection with the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances;

2.	Orders the Commission to pay the costs.

(1) OJ C 143, 11.6.2005.

18.4.2009

Official Journal of the European Union

C 90/23

Judgment of the Court of First Instance of 11 March 2009 — Borax Europe v Commission

(Case T-166/05) (1)

2009/C 90/36

Language of the case: English

Parties

Applicant: Borax Europe Ltd (Guildford, United Kingdom) (represented by: D. Vandermeersch and K. Nordlander, lawyers)

Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and I. Chatzigiannis, acting as Agents)

Re:

Application for annulment of the decision of 21 February 2005 of the Secretary-General of the Commission refusing access to certain documents and sound recordings in connection with the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967(I), p. 234)

Operative part of the judgment

The Court:

Annuls the decision of 21 February 2005 of the Secretary-General of the Commission refusing Borax Europe Ltd access to the recordings of the meeting of 5 and 6 October 2004, to two drafts of the summary record of that meeting, to thirteen comments from experts, to two comments from industry representatives and to the document submitted by the Danish Rapporteur;

2.	Orders the Commission to pay the costs.

(1) OJ C 155, 25.6.2005.

18.4.2009

Official Journal of the European Union

C 90/24

Judgment of the Court of First Instance of 4 March 2009 — Italy v Commission

(Case T-424/05) (1)

(State aid - Aid scheme established by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies - Decision declaring the aid to be incompatible with the common market - Obligation to state reasons - Selective nature of the measure - Effect on trade between the Member States and distortion of competition - Article 87(3)(c) EC)

2009/C 90/37

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, lawyer)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, acting as Agents)

Re:

Action for annulment of Commission Decision 2006/638/EC of 6 September 2005 on the aid scheme implemented by Italy for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies listed on regulated markets (OJ 2006 L 268, p. 1)

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders the Italian Republic to pay the costs.

(1) OJ C 22, 28.1.2006.

18.4.2009

Official Journal of the European Union

C 90/24

Judgment of the Court of First Instance of 4 March 2009 — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission

(Case T-445/05) (1)

(State aid - Aid scheme implemented by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies - Decision declaring the aid incompatible with the common market - Actions for annulment - Direct and individual concern - Admissibility - Obligation to state the reasons on which the decision is based - Selective nature of the measure - Obligation of recovery)

2009/C 90/38

Language of the case: Italian

Parties

Applicants: Associazione italiana del risparmio gestito (Rome, Italy); and Fineco Asset Management SpA (Rome) (represented by: G. Escalar, G. Cipolla and V. Giordano, lawyers)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, Agents)

Re:

Annulment of Commission Decision 2006/638/EC of 6 September 2005 on the aid scheme implemented by Italy for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies listed on regulated markets (OJ 2006 L 268, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders the applicants to pay the costs.

(1) OJ C 48, 25.2.2006.

18.4.2009

Official Journal of the European Union

C 90/25

Judgment of the Court of First Instance of 10 March 2009 — Interpipe Niko Tube and Interpipe NTRP v Council

(Case T-249/06) (1)

(Dumping - Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine - Calculation of the normal value - Cooperation of the Community industry - Adjustment - Functions comparable to those of an agent working on a commission basis - Single economic entity - Manifest error of assessment - Offer of an undertaking - Rights of the defence - Duty to state reasons)

2009/C 90/39

Language of the case: English

Parties

Applicants: Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT), formerly Nikopolsky Seamless Tubes Plant ‘Niko Tube’ ZAT (Nikopol, Ukraine); and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT), formerly Nizhnedneprovsky Tube-Rolling Plant VAT (Dnipropetrovsk, Ukraine) (represented initially by: H.-G. Kamann and P. Vander Schueren, and subsequently by P. Vander Schueren, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix, acting as Agent, assisted by G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented initially by: H. van Vliet and T. Scharf, and subsequently by H. van Vliet and K. Talabér-Ricz, acting as Agents)

Re:

Application for annulment of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4).

Operative part of the judgment

The Court:

Annuls Article 1 of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine, in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT) exceeds that which would have been applicable had the export price not been adjusted for a commission when sales took place through the intermediary of the affiliated trader, Sepco SA;

2.	Dismisses the action as to the remainder;

3.	Orders the Council to bear its own costs and one quarter of the costs incurred by the applicants. The Commission is ordered to bear its own costs.

(1) OJ C 261, 28.10.2006.

18.4.2009

Official Journal of the European Union

C 90/25

Judgment of the Court of First Instance of 4 March 2009 — Professional Tennis Registry v OHIM — Registro Profesional de Tenis (PTR PROFESSIONAL TENNIS REGISTRY)

(Case T-168/07) (1)

(Community trade mark - Opposition proceedings - Application for registration of the figurative mark PTR PROFESSIONAL TENNIS REGISTRY as a Community trade mark - Earlier national and Community figurative mark RPT Registro Profesional de Tenis, S.L. and earlier national figurative mark RPT European Registry of Professional Tennis - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

2009/C 90/40

Language of the case: English

Parties

Applicant: Professional Tennis Registry, Inc. (Hilton Head Island, South Carolina, United States) (represented by: M. Vanhegan and B. Brandreth, Barristers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Registro Profesional de Tenis, SL (Madrid, Spain) (represented by: M. Zarobe, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 February 2007, as corrected (Case R 1050/2005-1), concerning opposition proceedings between Registro Profesional de Tenis, SL and Professional Tennis Registry, Inc.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 February 2007, as corrected (Case R 1050/2005-1);

2.	Orders OHIM to bear its own costs and to pay the costs incurred by Professional Tennis Registry, Inc.;

3.	Orders Registro Profesional de Tenis, SL, to bear its own costs.

(1) OJ C 170, 21.7.2007.

18.4.2009

Official Journal of the European Union

C 90/26

Judgment of the Court of First Instance of 10 March 2009 — Piccoli v OHIM (Shape of a sea shell)

(Case T-8/08) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Shape of a seashell - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character acquired through use - Article 7(3) of Regulation No 40/94)

2009/C 90/41

Language of the case: Italian

Parties

Applicant: G. M. Piccoli Srl (Alzano Lombardo, Italy) (represented by: S. Giudici and S. Caselli, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 September 2007 (Case R 530/2007-1) concerning an application to register as a Community trade mark a three-dimensional sign consisting of the shape of a sea shell.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders G. M. Piccoli Srl to pay the costs.

(1) OJ C 64, 8.3.2008.

18.4.2009

Official Journal of the European Union

C 90/26

Order of the Court of First Instance of 18 February 2009 — IMS v Commission

(Case T-346/06) (1)

(Action for annulment and for damages - Directive 98/37/EC - Machinery bearing the ‘CE’ marking - Hazards to the safety of persons - National prohibition measure - Opinion of the Commission declaring the measure to be justified - Action for annulment - Withdrawal of the contested measure - No need to adjudicate - Action for damages - Article 44(1)(c) of the Rules of Procedure of the Court of First Instance - Inadmissibility)

2009/C 90/42

Language of the case: Italian

Parties

Applicant: Industria Masetto Schio Srl (IMS) (Schio, Italy) (represented by: F. Colonna and T. Romolotti, lawyers)

Defendant: Commission of the European Communities (represented by: C. Zadra and D. Lawunmi, acting as Agents)

Intervener in support of the defendant: French Republic (represented by: G. de Bergues, acting as Agent)

Re:

First, application for annulment of the Commission’s opinion C(2006) 3914 of 6 December 2006 concerning a prohibition measure adopted by the French authorities relating to certain IMS brand mechanical presses and, second, application for damages for the loss allegedly suffered by the applicant as a result of the adoption of that opinion

Operative part of the order

1.	There is no longer any need to adjudicate on the application for annulment.

2.	The remainder of the action is dismissed as inadmissible.

3.	The Commission is ordered to pay the costs of the interim proceedings. As to the remainder, the Commission and Industria Masetto Schio Srl (IMS) are ordered to bear half of the costs each.

4.	The French Republic is ordered to bear its own costs.

(1) OJ C 20, 27.1.2007.

18.4.2009

Official Journal of the European Union

C 90/27

Order of the Court of First Instance of 15 January 2009 — Braun-Neumann v Parliament

(Case T-306/08 P) (1)

(Appeal - Staff case - Pensions - Survivor's pension - Payment of 50% owing to the existence of another surviving spouse - Act adversely affecting an official - Complaint out of time)

2009/C 90/43

Language of the case: German

Parties

Appellant: Kurt-Wolfgang Braun-Neumann (Lohr a. Main, Germany) (represented by: P. Ames, lawyer)

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

Re:

Appeal against the order of the European Union Civil Service Tribunal (First Chamber) of 23 May 2008 in Case F-79/07 Braun-Neumann v Parliament [2008] ECR-SC I-A-000, seeking annulment of that order.

Operative part of the order

1.	The Appeal is dismissed.

2.	Each party is ordered to bear its own costs incurred at first instance.

(1) OJ C 247, 27.9.2008.

18.4.2009

Official Journal of the European Union

C 90/27

Action brought on 6 February 2009 — Hellenic Republic v Commission

(Case T-46/09)

2009/C 90/44

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Kontolaimos, I. Khalkias and S. Kharitaki, State Legal Advisers, and S. Papaioannou, Legal Representative in the State Legal Service)

Defendant: Commission of the European Communities

Form of order sought

—	annul or alter the contested decision as more specifically set out in the application and order the Commission to pay the costs.

Pleas in law and main arguments

This action challenges Commission Decision C(2008) 7820 final of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF), notified to the applicant under reference number SG-Greffe (2008) D 207864/09-12-2008.

The applicant puts forward 12 pleas in support of its claim for annulment.

More specifically, in the citrus sector, the applicant submits under the first plea for annulment that the Commission misinterpreted and misapplied, with regard to the amount of the proposed correction, Commission documents AGRI VI 5330/97, AGRI 61495/2002/REV I and AGRI/60637/2006 (Calculation of financial consequences when clearing EAGGF accounts — Guidelines — Repeated shortcomings — Recurrence), since there was not a lack of basic controls, nor repeated shortcomings in the citrus aid regime, while the applicant submits in the second plea for annulment that the Commission appraised the factual circumstances incorrectly and imposed a disproportionate financial correction since the administrative and financial controls were effected and payment in cash related to just one instance.

In the field of cotton aid, under the third plea for annulment the applicant puts forward five more specific submissions: (a) the correction was, in its view, arbitrary and disproportionate because account was not taken of the improvement in the system and the belated change to the cotton aid regime in 2001; (b) the correction had to be different each year, given that the state of the control system was not the same in both periods; (c) the compatibility of the cotton aid regime with the integrated administration and control system (IACS) was ensured; (d) the environmental measures were checked at an appropriate time; and (e) the on-the-spot checks of the areas (5%) were carried out in a timely and effective manner.

So far as concerns bovine premiums, the applicant asserts under the fourth plea for annulment that the contested decision is vitiated because it was adopted beyond the reasonable period within which the clearance procedure should be completed, and it should be annulled on the basis that it was adopted by an organ which lacked competence ratione temporis and/or that it was adopted in abuse of the Commission’s right in that regard and/or that it infringes the legal certainty enjoyed by the Member States.

In the fifth plea for annulment, it is submitted in the alternative that the Commission’s decision should be annulled because, in imposing the corrections, it goes back to a time preceding the common conciliation letter or, in the alternative, the last letter of observations.

In the sixth plea for annulment, regarding, more specifically, the reasons for imposition of corrections, the applicant pleads misinterpretation and misapplication of Article 7 of Regulation (EC) No 1258/99 (1) and the guidelines, misappraisal of the factual circumstances and evidence or, in the alternative, error as to the facts, and a lack of reasoning.

In the field of olive-oil aid, the applicant submits under the seventh plea for annulment that the contested decision is vitiated because it was adopted beyond the reasonable period within which the clearance procedure should be completed, and it should be annulled on the basis that it was adopted by an organ which lacked competence ratione temporis and/or that it was adopted in abuse of the Commission’s right in that regard and/or that it infringes the legal certainty enjoyed by the Member States.

In the eighth plea for annulment, it is submitted in the alternative that, in imposing the corrections, the contested decision unlawfully goes back to a time preceding the common conciliation letter or, in the alternative, the last letter of observations.

In the ninth plea for annulment, regarding, more specifically, the reasons for imposition of a correction, the applicant submits that the contested decision should be annulled for misinterpretation of Regulations (EC) Nos 1258/99 and 1663/95, (2) of the guidelines VI 5330/97 and AGRI 61495/2002, and of the provisions that concern more specifically the regime at issue (Article 16 of Regulation (EEC) No 2261/84, (3) Articles 27 and 28 of Regulation (EEC) No 2366/98 (4) and Articles 2 and 2a of Regulation (EC) No 1638/98), (5) for error as to the facts, for misappraisal of the factual circumstances, for lack of reasoning and for breach of the principle of proportionality.

Finally, with regard to the exceeding of the financial limits for corrections/late payments, it is submitted in the tenth plea for annulment that, in so far as the contested decision concerns investigation FA/2005/70, it should be annulled for breach of rules governing the procedure for clearance of accounts and of Regulation (EC) No 817/2004, (6) for lack of reasoning and for breach of the principle of proportionality.

In the eleventh plea for annulment, the applicant submits that the contested decision should also be annulled in respect of the section concerning accounting investigation FA/2006/108 for breach of the rules governing the clearance procedure, misapplication of Regulation (EC) No 296/96, (7) misappraisal of the facts, lack of reasoning and breach of the principle of proportionality, while, finally, the twelfth plea for annulment contests on the basis of insufficient reasoning the section of the contested decision concerning investigation FA/2006/137.

(1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

(2) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).

(3) Council Regulation (EEC) No 2261/84 of 17 July 1984 laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organisations (OJ 1984 L 208, p. 3).

(4) Commission Regulation (EC) No 2366/98 of 30 October 1998 laying down detailed rules for the application of the system of production aid for olive oil for the 1998/99, 1999/2000 and 2000/01 marketing years (OJ 1998 L 293, p. 50).

(5) Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32).

(6) Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 153, p. 31).

(7) Commission Regulation (EC) No 296/96 of 16 February 1996 on data to be forwarded by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF) and repealing Regulation (EEC) No 2776/88 (OJ 1996 L 39, p. 5).

18.4.2009

Official Journal of the European Union

C 90/29

Action brought on 30 January 2009 — Evropaïki Dynamiki v Commission

(Case T-49/09)

2009/C 90/45

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

—

annul the Commission’s decision to reject the bid of the applicant, filed in response to the open call for tender REGIO-A4-2008-01 for the “Maintenance and development of the Directorate-General for Regional Policy’s Information System” (1) communicated to the applicant by letter dated 21 November 2008 and all further related decisions including the one to award the contract to the successful contractor;

—	order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 4 520 845,05;

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

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant’s decision to reject its bid submitted in response to a call for an open tender REGIO-A4-2008-01 for the “Maintenance and Development of the Directorate-General for Regional Policy’s Information System” and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.

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

First, it argues that the Commission infringed the principle of equal treatment by introducing a posteriori the criteria which were unknown to the tenderers and by using a discriminatory evaluation formula.

Second, the applicant contends that the evaluation committee did not provide sufficient motivation of its decision.

Third, the applicant submits that the Commission failed to observe essential procedural requirements by introducing a complementary evaluation committee.

Fourth, the applicant claims that the defendant based its evaluation of the applicant’s tender on unfounded considerations and assumptions thus committing serious and manifest errors of assessment and misusing its power.

(1) OJ 2008/S 117-155067

18.4.2009

Official Journal of the European Union

C 90/29

Action brought on 3 February 2009 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids)

(Case T-50/09)

2009/C 90/46

Language in which the application was lodged: English

Parties

Applicant: Ifemy’s Holding GmbH (Munich, Germany) (represented by: H.G. Augustinowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dada & Co Kids Srl (Prato, Italy)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 November 2008 in case R 911/2008-4; and

—	Order OHIM 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 ‘Dada & Co. kids’, 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 30 114 449 of the word mark “DADA” for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of the principles of equal treatment, faithful competition and rule of law as enshrined in Article 2 and 3 EC, as well as Articles 43 and 80(1) of Council Regulation 40/04 and Rules 50(2) and 80(2) of Commission Regulation No 2868/95 (1), as the Board of Appeal failed to annul the decision of the Opposition Division which named the wrong applicant and, furthermore, as the Board of Appeal wrongly found that before the Opposition Division the applicant was given every opportunity to submit the relevant evidence.

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

18.4.2009

Official Journal of the European Union

C 90/30

Action brought on 11 February 2009 — Cafea v OHIM — Christian (BEST FARM)

(Case T-53/09)

2009/C 90/47

Language in which the application was lodged: German

Parties

Applicant: Cafea GmbH (Hamburg, Germany) (represented by: C. Schumann and M. Hartmann, 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: Dieter Christian (Frankfurt, Germany)

Form of order sought

—	annul the decision of the First Board of Appeal of 27 November 2008 in Case R 420/2008-1;

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

—	order the applicant for a Community trade mark to pay the costs of the opposition proceedings and the appeal proceedings before the Office for Harmonisation in the Internal Market

Pleas in law and main arguments

Applicant for a Community trade mark: Dieter Christian

Community trade mark concerned: Word mark ‘BEST FARM’ for goods in Classes 29, 30, 31 and 32 (Registration No 3 089 281)

Proprietor of the mark or sign cited in the opposition proceedings: the applicant acting under its previous corporate name KORD Beiteiligungsgesellschaft mbH & Co. KG

Mark or sign cited in opposition: German word mark ‘BESTFORM’ for goods and services in Classes 1, 29, 30, 32, 33 and 42 (No 300 563 34)

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), because there exists a likelihood of confusion, or at least a likelihood of association, between the conflicting marks

(1) Council Regulation (EC) No 40/941 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

18.4.2009

Official Journal of the European Union

C 90/30

Action brought on 11 Februar 2009 — XXXLutzMarken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil)

(Case T-54/09)

2009/C 90/48

Language in which the application was lodged: German

Parties

Applicant: XXXLutzMarken (Wels, Austria) (represented by: H. Pannen, 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: Natura Selection SL (Barcelona, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of OHIM of 28 November 2008 in Case R 1787/2007-2;

—	order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: XXXLutzMarken

Community trade mark concerned: figurative mark ‘LineaNatura Natur hat immer Stil’ for goods in Classes 8, 14, 16, 20, 21, 24, 25 and 27 (Registration No 4 626 693)

Proprietor of the mark or sign cited in the opposition proceedings: Natura Selection S.L.

Mark or sign cited in opposition: Figurative mark ‘natura selection’ (Community trade mark No 2 016 384) for goods and services in Classes 3, 14, 16, 20, 25, 35, 38, 39 and 42, and further Community trade marks and Spanish mark comprising the word ‘natura’, for goods and services in Classes 3, 14, 16, 20, 21, 24, 25, 27, 28, 35, 39 and 42

Decision of the Opposition Division: Upholding the opposition

Decision of the Board of Appeal: Rejection of the appeal

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 conflicting marks

(1) Council Regulation (EC) No 40/941 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

18.4.2009

Official Journal of the European Union

C 90/31

Action brought on 13 February 2009 — Saint-Gobain Glass France and Others v Commission

(Case T-56/09)

2009/C 90/49

Language of the case: French

Parties

Applicants: Saint-Gobain Glass France SA (Courbevoie, France), Saint-Gobain Sekurit Deutschland GmbH & Co. KG (Aachen, Germany), Saint-Gobain Sekurit France SAS (Thourotte, France) (represented by: B. van de Walle de Ghelcke, B. Meyring, M. Guillaumond and E. Venot, lawyers)

Defendant: Commission of the European Communities

Form of order sought (1)

—

annul the amended version of the decision of the Commission of the European Communities C(2008) 6815 final of 12 November 2008 relating to a proceeding under Article 81 EC in Case COMP/39.125 — Car glass as adopted by Decision C(2009) 863 final of 11 February 2009, which was notified to the applicants on 13 and 16 February 2009, together with the grounds on which the operative part of the decision was reached, in so far as the amended version of that decision is addressed to the applicants; alternatively, annul Article 2 thereof;

—	in the alternative, to reduce the fine imposed on the applicants in Article 2 of the amended version of the decision as adopted by Decision C(2009) 863 final of 11 February 2009, which was notified to the applicants on 13 and 16 February 2009, to an appropriate amount;

—	order the defendant to pay the costs.

Pleas in law and main arguments

With the present action, the applicants seek the partial annulment of Commission Decision C(2008) 6815 final of 12 November 2008 in Case COMP/39.125 — Car glass, in which the Commission found that certain undertakings, including the applicants, had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by sharing contracts for the supply of car glass and by coordinating their pricing policies and supply strategies on the European market for car glass.

In support of their action, the applicants rely on eight pleas in law alleging:

—

infringement of the right to an independent and impartial tribunal and of the right to respect for the presumption of innocence in so far as the fine was imposed by an administrative authority which holds simultaneously powers of investigation and sanction, and that Regulation No 1/2003 (2) is unlawful in so far as it does not provide for that right to an independent and impartial tribunal;

—	infringement of the right of the applicants to a fair hearing since the applicants were not given an opportunity by the Commission to comment on the method for calculating the fine pursuant to the 2006 guidelines on fines (3);

—	infringement of Article 253 EC since the contested decision is not reasoned to the requisite legal standard in so far as the Commission did not specifically explain on the basis of which sales the turnover in relation to the infringement had been calculated;

—	infringement of Article 23(2) of Regulation No 1/2003 and of the principle that penalties are personal and a misuse of powers as the 10% ceiling should have been applied solely to the applicants’ turnover and not to the turnover of the Compagnie de Saint-Gobain;

—

infringement of the principle of non-retroactivity of penalties in so far as the Commission applied the 2006 guidelines on fines retroactively, which resulted in a significant and unforeseeable increase in the level of the fines, by basing the contested decision on those guidelines despite the fact that they were adopted after the infringement had ended;

—	infringement of the principle of proportionality in that the fine imposed was excessive, disproportionate and cannot be justified by the objective of deterrence;

—

infringement of Article 23 of Regulation No 1/2003 and failure to state reasons in so far as the Commission is not entitled to base its decision on the two cases of previous infringement which were regarded as relevant in the contested decision, on the ground that neither of those two decisions was addressed to the applicants;

—	an error of law and of assessment in the application of Article 23(2)(a) and (3) of Regulation No 1/2003 in that the Commission did not take into account, in calculating the fine, that the applicants had not substantially contested the accuracy of the facts.

(1) As amended after the action was brought because of a corrigendum to the contested decision adopted by the Commission.

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

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

18.4.2009

Official Journal of the European Union

C 90/32

Action brought on 18 February 2009 — Soliver NV v Commission of the European Communities

(Case T-68/09)

2009/C 90/50

Language of the case: Dutch

Parties

Applicant: Soliver NV (Roeselare, Belgium) (represented by H. Gilliams and J. Bocken, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Article 1 of the Commission Decision of 12 November 2008 in Case COMP/39.125 — Car glass, in so far as it finds that the applicant participated from 19 November 2001 to 11 March 2003 in the infringement established in that decision;

—	annul Article 2 of the Commission Decision of 12 November 2008 in Case COMP/39.125 — Car glass, in so far as it imposes a fine of EUR 4 396 000 on the applicant;

—	in the alternative, substantially reduce the fine imposed on the applicant;

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

Pleas in law and main arguments

In support of its application the applicant pleads infringement of Article 81 EC and Article 53 EEA and of the obligation to state reasons, and a manifestly incorrect assessment of the facts. The applicant submits that the contested decision incorrectly states that between 19 November 2001 and 11 March 2003 the applicant was a party to the infringement found in Article 1 of the contested decision.

Second, the applicant submits that the value of sales figure taken by the Commission is not supported by reasons, is not in accordance with the Guidelines on the setting of fines, does not allow the applicant to defend itself, is contrary to the presumption of innocence, and infringes the principle of equal treatment.

Third, the applicant pleads infringement of the principles of equal treatment and of proportionality, the Guidelines on the setting of fines and the duty to state reasons. When calculating the basic amount of the applicant’s fine, the Commission applied an excessively high percentage of the value of its sales.

Fourth, the applicant pleads infringement of the principles of equal treatment and of proportionality and a manifestly incorrect assessment of the facts, by virtue of the fact that the Commission multiplied the applicant’s value of sales by the number of years during which the applicant was alleged to be a party to the infringement found in Article 1 of the contested decision.

Fifth, the applicant alleges infringement of the prohibition of retroactive effect. According to the applicant, the Commission is applying the 2006 Guidelines (1) to an alleged infringement that took place before the enactment of those guidelines.

Sixth, the applicant pleads infringement of the principles of equal treatment and of proportionality and a manifestly incorrect assessment of the facts by virtue of the fact that the Commission increased the basic amount of the applicant’s fine by an additional amount of 16% of the applicant’s value of sales.

Seventh, the applicant alleges infringement of Article 81 EC and the Guidelines on the setting of fines because, when calculating the applicant’s fine, the Commission refused to take into account various mitigating circumstances for the applicant.

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

18.4.2009

Official Journal of the European Union

C 90/33

Action brought on 20 February 2009 — Provincie Groningen and Provincie Drenthe v Commission

(Case T-69/09)

2009/C 90/51

Language of the case: Dutch

Parties

Applicants: Provincie Groningen (Groningen, Netherlands) and Provincie Drenthe (Assen, Netherlands) (represented by: C. Dekker and E. Belhadj, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—

annul in part Article 2 of Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund within the framework of the single programming document for the Groningen-Drenthe region coming under objective 2 — no 97.07.13.003 — granted in accordance with Commission Decision C(1997) 1362 of 26 May 1997, in so far as the former decision relates to the 2% flat-rate adjustment to the budget in the amount of EUR 1 139 346,24 which was applied and the expenditure amounting in total to NLG 8 441 804 which it was declared could not be subsidised, and in so far as it relates to the extrapolation adjustment of 5,76% and also in so far as it concerns the adjustment of NLG 1 160 456 in connection with the failure to put out to tender contracts with a value below the threshold referred to in the procurement directives;

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

Pleas in law and main arguments

In support of their application, the applicants first submit that there has been a breach of Article 24 of Regulation No 4253/88 (1) by reason of the fact that the Commission applied an extrapolated adjustment of 5,76% in respect of established errors and a flat-rate adjustment of 2% in respect of the failure to meet specific conditions of the project and programme, even though those adjustments cannot be based on that article.

Second, the applicants allege that there has been a breach of Articles 28 EC and 49 EC by reason of the fact that the Commission failed to realise that contracts with a value below the threshold values referred to in Directive 93/37/EEC, (2) Directive 93/38/EEC (3) and Directive 92/50/EEC (4) in respect of public contracts may be awarded in accordance with the provisions governing the free movement of goods and services only if there is a cross-border element.

Third, the applicants allege an infringement of the principles of legal certainty and legitimate expectation inasmuch as the Commission established that contracts with a value below the threshold values referred to in the public procurement directives may be awarded only in accordance with the provisions on free movement of goods and services, even though this was not clear at the time when the single programming document for the Groningen-Drenthe region coming under objective 2 was being implemented.

Fourth, the applicants argue that there has been a breach of the EC Treaty, in particular Article 211 EC, by virtue of the fact that the Commission applied a flat-rate reduction of 2% in respect of the alleged failure to comply with the national conditions governing the project, event though it had no power to do so.

Fifth, the applicants allege a breach of Regulations No 4253/88 and No 2064/97 (5) by reason of the fact that the Commission failed to realise that the applicants had complied with their obligations concerning the monitoring and control system.

Sixth, the applicants allege infringement of the principle of legitimate expectation in that the Commission provided the applicants with grounds for a well-founded expectation that the existing monitoring and control system and other forms of supervision were sufficient for them to meet their obligations.

Seventh, the applicants allege a breach of Regulation No 4253/88 on the ground that the Commission wrongly concluded that the project for the ‘Noord-Zuidroute’ had not been completed in time and that there were shortcomings in the monitoring and control systems, in respect of which a fixed adjustment of 2% was applied.

Eighth, the applicants contend that there was a breach of Directive 93/36/EEC (6) by virtue of the fact that the Commission wrongly found that, in the context of the ‘Waterfabriek Noorder Dierenpark Emmen’ project, contracts had been concluded for the supply of membranes and a process monitoring system which, contrary to Directive 93/36/EEC, were allegedly awarded without any form of competition, even though Directive 93/36/EEC does indeed allow such in that situation.

Ninth, the applicants allege a breach of Directives 92/50/EEC and 93/37/EEC on the ground that the Commission wrongly held that, in the context of the ‘Waterfabriek Noorder Dierenpark Emmen’ project, a contract had been concluded in respect of project and framework management which, contrary to Directive 92/50/EEC, was allegedly awarded without any form of competition, even though that contract formed part of the realisation of the work within the terms of Directive 93/37/EEC and therefore did not have to be the subject of a separate tender.

Tenth, the applicants allege a breach of Directive 93/38/EEC on the ground that the Commission wrongly held that, within the framework of the ‘Centraal Station Groningen’ project, a contract for the renting of temporary accommodation units was awarded contrary to Directive 93/38/EEC, even though the arranging of that temporary accommodation was to be classified as ‘work’ within the terms of Directive 93/38/EEC.

Eleventh, the applicants allege a breach of Regulation No 4253/88 by virtue of the fact that the Commission wrongly held that the subsidisation of the ‘Noord-Nederland’ technology centre was not in accordance with the single programming document.

The applicants conclude by alleging a breach of the EC Treaty and of Regulation No 4253/88 by reason of the fact that, for the purpose of establishing the total error percentage, the Commission wrongly took into account the findings relating to the renovation plan for the Martini Hall in Groningen.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

(2) Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).

(3) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

(4) 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).

(5) Commission Regulation (EC) No 2064/97 of 15 October 1997 establishing detailed arrangements for the implementation of Council Regulation (EEC) No 4253/88 as regards the financial control by Member States of operations co-financed by the Structural Funds (OJ 1997 L 290, p. 1).

(6) Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).

18.4.2009

Official Journal of the European Union

C 90/34

Action brought on 19 February 2009 — Netherlands v Commission

(Case T-70/09)

2009/C 90/52

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels and M. Noort, Agents)

Defendant: Commission of the European Communities

Form of order sought

—

annul in part Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund within the framework of the single programming document for the Groningen-Drenthe region coming under objective 2 — no 97.07.13.003 — granted in accordance with Commission Decision C(1997) 1362 of 26 May 1997, in so far as the former decision relates to the 2% flat-rate adjustment to the budget in the amount of EUR 1 139 346,24 which was applied and the expenditure amounting in total to NLG 1 160 456 which it was declared could not be subsidised; and

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of its application the Netherlands first alleges infringement of the principle of legal certainty in that obligations are imposed on a Member State on the basis of case-law of the Court of Justice which post-dates the imposition of those obligations and which at that moment were not clear, precise and foreseeable for the Member State concerned.

In the alternative, the Netherlands alleges infringement of the principle that reasons must be given by virtue of the fact that no more detailed grounds were provided as to the nature of the cross-border interest of the project in question, that project having in the interim been approved and the value of which fell below the thresholds laid down in the public procurement directives.

In conclusion, the Netherlands alleges a breach of Article 211 EC by reason of the fact that the Commission applied a flat-rate reduction of 2% on the ground of the alleged failure to comply with the national conditions governing the project, even though the Commission has power only in respect of compliance with the Community conditions.

18.4.2009

Official Journal of the European Union

C 90/34

Action brought on 17 February 2009 — hofherr communikation v OHIM (NATURE WATCH)

(Case T-77/09)

2009/C 90/53

Language of the case: English

Parties

Applicant: hofherr communikation GmbH (Innsbruck, Austria) (represented by S. Warbek, lawyer)

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

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 December 2008 in case R 1410/2008-1 and allow registration of the trade mark applied for; and

—	Order OHIM to pay the legal costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark “NATURE WATCH” for goods and services in classes 9, 39, 41 and 43 — international registration No WOO 957 541

Decision of the examiner: Refusal to register the mark applied for as a Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal wrongly concluded that the trade mark applied for is a descriptive one and, furthermore, that the trade mark applied for lacks distinctive character.

18.4.2009

Official Journal of the European Union

C 90/35

Action brought on 20 February 2009 — Chalk v OHIM — Reformed Spirits Company Holdings (CRAIC)

(Case T-83/09)

2009/C 90/54

Language in which the application was lodged: English

Parties

Applicant: David Chalk (Canterbury, United Kingdom) (represented by: C. Balme, W. James and M. Gilbert Solicitors and S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Reformed Spirits Company Holdings Ltd (St Helier, Jersey)

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 13 November 2008 in case R 1888/2007-2;

—

Remove the other party to the proceedings before the Board of Appeal from OHIM’s register and allow the registration of the applicant as the proprietor of Community trade mark No 2 245 306 pursuant to the assignment from Arthur Crack Limited to the applicant dated 21 January 2006;

In the alternative, remit the case to the Board of Appeal of OHIM for consideration in the light of the Court’s findings;

—	Order OHIM, and to the extent it intervenes in these proceedings the other party to the proceedings before the Board of Appeal, to pay the costs, including those of these proceedings and the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revocation of the recordal of the transfer: The word mark ‘CRAIC’ for goods in classes 25, 32 and 33

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

Party requesting the revocation of the recordal of the transfer: The applicant

Decision of the examiner: Refusal to revoke the decision concerning the recordal of transfer

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

Firstly, infringement of Article 16(1) of Council Regulation 40/94 as the Board of Appeal failed to consider and apply the national laws of Member States (in this case, the United Kingdom) when making any decision based on a transfer of a Community trade mark;

Secondly, infringement of Rule 31 of Commission Regulation No 2868/95 (1) as the Board of Appeal failed to consider the validity and effect of documents that are provided to it if the legal effect of those documents is challenged subsequently;

Thirdly, infringement of Article 77(a) of Council Regulation 40/94 as the Board of Appeal failed to consider previous decisions taken by OHIM in the light of further facts and evidence supplied to it;

Fourthly, infringement of Article 23 of Council Regulation 40/94 as the Board of Appeal wrongly rejected the applicant’s request to record the assignment of Community trade mark No 2 245 306;

Finally, the Board of Appeal wrongly refused to revoke the decision by which OHIM has recorded the other party to the proceedings before the Board of Appeal as proprietor of Community trade mark No 2 245 306, as well as when it held that Council Regulation 40/94 and Commission Regulation 2868/95 do not permit the OHIM to record the applicant as the registered proprietor of Community trade mark No 2 245 306.

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

18.4.2009

Official Journal of the European Union

C 90/36

Action brought on 19 February 2009 — Italy v Commission

(Case T-84/09)

2009/C 90/55

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—

annul the Decision of 8 December 2008, notified under document number C (2008) 7820 on 9 December 2008, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in so far as it makes certain corrections at Italy’s expense.

Pleas in law and main arguments

The Italian Government contests before the Court of First Instance of the European Communities Commission Decision C (2008) 7820 of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF).

In particular, the Commission has excluded from Community financing under the Guarantee Section of the EAGGF a number of categories of expenditure incurred by the Italian State in the financial years from 2003 to 2007.

The action brought by Italy focuses in particular on three aspects of the contested decision:

(i)

its application of a number of one-off financial corrections in respect of campaigns to inform the public and promote agricultural products in the internal market (EC 94/2002) and in non-member countries (EC 2879/2000), for the financial years from 2004 to 2007, amounting in total to EUR 4 678 229,78;

(ii)	its application of one-off financial corrections in respect of production aid for olive oil and table olive production, for the financial years from 2003 to 2006, amounting in total to EUR 105 536 076,42;

(iii)

its application of financial corrections because of late payments and the overshooting of financial ceilings, amounting to EUR 12 020 178 for the financial year 2005 and EUR 44 567 569,37 for the financial year 2006.

With regard to point (i), it is submitted in the application that the Commission’s position is vitiated by breach of essential procedural requirements (Article 253 EC), such breach consisting in the lack of an inter partes stage in the procedure, the absence of a preliminary investigation and failure to state sufficient reasons, as well as breach of the principle of proportionality and distortion of the facts.

Among other things, in the present case, since it was not alleged that there was a total lack of controls or that the controls were wholly inefficient, the Commission’s application of a one-off 10% correction is wholly disproportionate and unjustified, thereby rendering the contested decision manifestly unlawful also from this point of view.

With regard to point (ii), the Commission applied one-off financial corrections (10% and 5%) in respect of the financial years 2001-2002 and 2002-2003, amounting in total to EUR 105 536 076,42.

It is submitted in the application on this point that the decision is vitiated by breach of essential procedural requirements (article 253 EC) in the form of failure to state sufficient reasons, breach of the principle of proportionality and infringement of Articles 26 and 28 of Regulation No 2366/98 (original version and the version as amended by Regulation No 1780/03). In particular, the Italian Government considers, inter alia, that the Commission did not give due consideration — and fails to give adequate reasons for this — to the explanations furnished from time to time by the Italian authorities, especially regarding the general approach of the penalty system in Italy and the full accomplishment of the geographical information system (GIS) for olive cultivation. In any case, the one-off amount of the penalty imposed by the Commission is unjustified and manifestly disproportionate in that, according to the Italian Government, even if it were to be shown that there had been a total failure to comply with the Community rules, the risk would not in any event exceed EUR 22 504 075,39.

As regards point (iii), the Commission — on grounds which are inappropriate, insufficient and the product of circular reasoning — adopted the view that it could not accept the justifications offered by the Italian State in the course of the procedure and before the Dispute Settlement Body, ‘because the 4% reserve made available under Article 4(2) of Commission Regulation (EC) No 296/96 (Article 9 of Commission Regulation (EC) No 883/2006) should have been sufficient for bringing legal actions, for dealing with controversial cases and for introducing additional controls’. In that connection, the Italian Government states that the 4% limit is not to be understood as absolute: in view of the fact that its purpose is to protect the Community’s finances from fraud, it can be exceeded whenever — as in the present case — there are sound reasons for fearing that there is a risk of fraud involving more than 4%. That is the only interpretation of that rule that is consistent with the rationale underlying it.

18.4.2009

Official Journal of the European Union

C 90/37

Action brought on 26 February 2009 — Kadi v Commission

(Case T-85/09)

2009/C 90/56

Language of the case: English

Parties

Applicant: Yassin Abdullah Kadi (represented by: D. Anderson, QC, M. Lester, Barrister, G. Martin, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

—	annul Regulation No 1190/2008, in so far as it concerns the applicant;

—	order the Commission to pay the applicant’s costs of this action.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Commission Regulation No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (1) in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. Regulation no 881/2002 was annulled by the Court of Justice in joined cases C-402/05 and C-415/05, Kadi and al Barakaat v Council and Commission (2)

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

First, the applicant submits that the contested regulation lacks a sufficient legal basis because it appears to amend Regulation 881/2002 without relevant determination by United Nations which, in the applicant’s opinion, is precondition for the amendment of that regulation.

Second, the applicant claims that the contested regulation violates his rights of defence, both the right to an effective hearing and the right to effective judicial protection, and fails to remedy the infringements of those rights as found by the Court in joined cases C-402/05 and C-415/05. He further contends that the contested regulation provides no procedure for communicating to the applicant the evidence on which the decision to freeze his assets was based, or for enabling him to comment meaningfully on that evidence.

Third, the applicant submits that the Commission failed to provide compelling reasons for maintaining the asset freeze against the applicant, in violation of its obligation under Article 253 EC.

Fourth, it claims that the Commission failed to undertake an assessment of all relevant facts and circumstances in deciding whether to enact the contested regulation and therefore manifestly erred in its assessments.

Fifth, the applicant contends that the contested regulation constitutes an unjustified and disproportionate restriction on his right to property which is not justified by compelling evidence.

(1) OJ 2008 L 322, p. 25

(2) Not yet reported in ECR

18.4.2009

Official Journal of the European Union

C 90/37

Action brought on 10 March 2009 — UCAPT v Council

(Case T-96/09)

2009/C 90/57

Language of the case: French

Parties

Applicant: Union des Coopératives Agricoles des Producteurs de Tabac de France (UCAPT) (Paris, France) (represented by: B. Peignot and D. Garreau, lawyers)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003;

—	Order the Council to pay costs in the amount of EUR 10 000.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Council Regulation No 73/2009 (1) relating to direct support schemes for farmers under the common agricultural policy, Article 135 of which provides for a reduction, as from the financial year 2011, in the level of direct support for the production of tobacco to 50% of the average level of support granted in 2000, 2001 and 2002. Such a reduction was already provided for by Article 143e of Regulation No 1782/2003. (2)

In support of its action the applicant submits four pleas in law alleging:

—	a procedural irregularity in that no study of the impact of the reform of the aid scheme on the tobacco sector was carried out prior to the adoption of the contested regulation;

—	accordingly, a misuse of powers;

—

infringement of the principle of proportionality as the reduction in direct support to 50% is inappropriate to attain the two objectives of the reform of the tobacco support scheme, namely the alignment of prices to those of the world market and the promotion of conversion measures for tobacco-producing regions in rural development programmes;

—	infringement of Article 33 EC in so far as the contested regulation fails to have regard for some of the objectives of the common agricultural policy, namely that of ensuring a fair standard of living for the agricultural community and of stabilising markets.

(1) Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

(2) Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

18.4.2009

Official Journal of the European Union

C 90/40

Action brought on 8 February 2009 — Marcuccio v Commission

(Case F-11/09)

2009/C 90/64

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

Action for annulment of the decision by which the Commission refused a request for 100% reimbursement of a number of medical expenses incurred by the applicant

Form of order sought

—	Annul the decision refusing the two requests of 27 December 2007 for reimbursement of medical expenses incurred by the applicant;

—	Annul, so far as is necessary, the memorandum dated 16 October 2008;

—

Order the European Commission to pay the applicant, by way of 100% reimbursement of medical costs, the sum of EUR 356,18 or such lesser sum as the Civil Service Tribunal may consider just and appropriate, together with interest on that amount, to be applied with effect from the first day of the fifth month following the day on which both requests were received by the addressee, at the rate of 10% per annum, with annual capitalisation, or at such rate and capitalisation and from such commencement date as the Civil Service Tribunal may consider just;

—	Order the Commission to pay the costs.

18.4.2009

Official Journal of the European Union

C 90/40

Action brought on 19 February 2009 — Peláez Jimeno v Parliament

(Case F-13/09)

2009/C 90/65

Language of the case: French

Parties

Applicant: Josefina Peláez Jimeno (Relegem — Asse, Belgium) (represented by: M. Casado García-Hirschfeld, lawyer)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the appointing authority’s decision to classify the applicant, as a probationary official, at a grade and step lower than that which she occupied as a member of the temporary staff.

Form of order sought

The applicant claims that the Tribunal should:

—	Annul the appointing authority’s decision of 8 February 2008 by which the applicant was classified in the new ‘AST’ category, grade 1, step 5, as a probationary official, confirmed by the decision rejecting the complaint of the Secretary General of the European Parliament of 12 November 2008;

—	Order the European Parliament to pay the costs.

18.4.2009

Official Journal of the European Union

C 90/40

Action brought on 20 February 2009 — Almeida Campos and Others v Council of the European Union

(Case F-14/09)

2009/C 90/66

Language of the case: French

Parties

Applicants: Ana Maria Almeida Campos (Brussels, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the appointing authority’s decisions not to promote the applicants to grade AD 12 under the 2008 promotion procedure and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008.

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decisions of the appointing authority not to promote the applicants to grade AD 12 under the 2008 promotion procedure (2008 session) and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008;

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

		ISSN 1725-2423 doi:10.3000/17252423.C_2009.090.eng
Official Journal of the European Union		C 90

English edition	Information and Notices	Volume 52 18 April 2009

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2009/C 090/01	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 82, 4.4.2009	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2009/C 090/02	Case C-228/06: Judgment of the Court (First Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany)) — Mehmet Soysal, Ibrahim Savatli v Bundesrepublik Deutschland (EEC-Turkey Association Agreement — Freedom to provide services — Visa requirement for admission to the territory of a Member State)	2

2009/C 090/03	Case C-308/07 P: Judgment of the Court (First Chamber) of 19 February 2009 — Koldo Gorostiaga Atxalandabaso v European Parliament (Appeal — Rules concerning the expenses and allowances to Members of the European Parliament — Recovery of improperly paid sums by means of offsetting — Enforcement of a judgment of the Court of First Instance — Right to an impartial tribunal — Res judicata — Principle of sound administration)	2

2009/C 090/04	Case C-321/07: Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Landgericht Mannheim (Germany)) — Criminal proceedings against Karl Schwarz (Directive 91/439/EEC — Holding of driving licences from different Member States — Validity of a driving licence issued before the accession of a State — Withdrawal of a second driving licence issued by the Member State of residence — Recognition of a driving licence issued before the issue of a second licence later withdrawn on the ground that the holder was unfit — Expiry of the period accompanying a measure withdrawing a driving licence during which no application may be made for the issue of a new driving licence)	3

2009/C 090/05	Case C-376/07: Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v Kamino International Logistics BV (Common Customs Tariff — Combined Nomenclature — Tariff classification — Monitors of the liquid crystal display (LCD) type with SUB-D, DVI-D, USB, S-video and composite-video sockets — Heading 8471 — Heading 8528 — Regulation (EC) No 754/2004)	3

2009/C 090/06	Case C-465/07: Judgment of the Court (Grand Chamber) of 17 February 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M. Elgafaji, N. Elgafaji v Staatssecretaris van Justitie (Directive 2004/83/EC — Minimum standards for determining who qualifies for refugee status or for subsidiary protection status — Person eligible for subsidiary protection — Article 2(e) — Real risk of suffering serious harm — Article 15(c) — Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict — Proof)	4

2009/C 090/07	Case C-552/07: Judgment of the Court (Fourth Chamber) of 17 February 2009 (reference for a preliminary ruling from the Conseil d’État (France)) — Commune de Sausheim v Pierre Azelvandre (Directive 2001/18/EC — Deliberate release of genetically modified organisms — Location of release — Confidentiality)	5

2009/C 090/08	Case C-1/08: Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Athesia Druck Srl v Ministero delle Finanze, Agenzia delle Entrate (Sixth VAT Directive — Article 9(2)(e) — Article 9(3)(b) — Thirteenth VAT Directive — Article 2 — Place where a supply of services is effected — Advertising services — Reimbursement of VAT — Tax representative)	5

2009/C 090/09	Case C-151/08: Order of the Court (Third Chamber) of 27 November 2008 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — N.N. Renta SA v Tribunal Económico-Administrativo Regional de Cataluña (TEARC), Generalidad de Cataluña (Article 104(3) of the Rules of Procedure — Sixth VAT Directive — Article 33(1) — Definition of turnover taxes — Duty on transfers of assets and documented legal transactions)	6

2009/C 090/10	Case C-542/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 4 December 2008 — Friedrich G. Barth v Bundesministerium für Wissenschaft und Forschung	7

2009/C 090/11	Case C-16/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 January 2009 — Gudrun Schwemmer v Agentur für Arbeit Villingen-Schwenningen — Familienkasse	7

2009/C 090/12	Case C-23/09 P: Appeal brought on 19 January 2009 by ecoblue AG against the judgment of the Court of First Instance (First Chamber) delivered on 12 November 2008 in Case T-281/07: ecoblue AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	8

2009/C 090/13	Case C-26/09: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 19 January 2009 — The Motor Insurers’ Bureau v Helphire (UK) Limited, Angel Assistance Limited	8

2009/C 090/14	Case C-33/09: Reference for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands), lodged on 26 January 2009 — Oracle Nederland BV v Inspecteur der Belastingdienst Utrecht-Gooi/kantoor Utrecht	9

2009/C 090/15	Case C-34/09: Reference for a preliminary ruling from the Tribunal du travail, Brussels (Belgium) made on 26 January 2009 — Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)	10

2009/C 090/16	Case C-39/09 P: Appeal brought on 30 January 2009 by Société des plantations de Mbanga SA (SPM) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 13 November 2008 in Case T-128/05 SPM v Council and Commission	11

2009/C 090/17	Case C-40/09: Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 29 January 2009 — Astra Zeneca UK Limited v Commissioners for Her Majesty's Revenue and Customs	11

2009/C 090/18	Case C-46/09: Action brought on 30 January 2009 — Commission of the European Communities v Republic of Estonia	12

2009/C 090/19	Case C-52/09: Reference for a preliminary ruling from the Tingsrätt Stockholm (Sweden) lodged on 6 February 2009 — Konkurrensverket v TeliaSonera Sverige AB	12

2009/C 090/20	Case C-53/09: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 6 February 2009 — Commissioners for Her Majesty's Revenue and Customs v Loyalty Management UK Limited	13

2009/C 090/21	Case C-55/09: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 9 February 2009 — Commissioners for Her Majesty's Revenue and Customs v Baxi Group Limited	14

2009/C 090/22	Case C-56/09: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Roma (Italy) lodged on 9 February 2009 — Emiliano Zanotti v Agenzia delle Entrate	15

2009/C 090/23	Case C-60/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Campania (Italy) lodged on 11 February 2009 — Lucio Rubano v Regione Campania, Comune di Cusano Mutri	15

2009/C 090/24	Case C-62/09: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2009 — Association of the British Pharmaceutical Industry v Medicines and Healthcare Products Regulatory Agency	15

2009/C 090/25	Case C-64/09: Action brought on 13 February 2009 — Commission of the European Communities v French Republic	16

2009/C 090/26	Case C-65/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 February 2009 — Gebr. Weber GmbH v Jürgen Wittmer	17

2009/C 090/27	Case C-66/09: Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Republic of Lithuania) lodged on 16 February 2009 — Kirin Amgen, Inc. v Lietuvos Respublikos valstybinis patentų biuras	17

2009/C 090/28	Case C-67/09 P: Appeal brought on 17 February 2009 by Nuova Agricast Srl and Cofra Srl against the judgment delivered by the Court of First Instance (First Chamber) on 2 December 2008 in Joined Cases T-362/05 and T-363/05 Nuova Agricast Srl and Cofra Srl v Commission	17

2009/C 090/29	Case C-80/09 P: Appeal brought on 23 February 2009 by Volker Mergel, Klaus Kampfenkel, Burkart Bill and Andreas Herden against the judgment of the Court of First Instance (Second Chamber) delivered on 16 December 2008 in Case T-335/07 Volker Merkel and Others v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	19

2009/C 090/30	Case C-84/09: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 26 February 2009 — X v Skatteverket	19

2009/C 090/31	Case C-87/09: Reference for a preliminary ruling from the Amtsgericht Schorndorf (Germany) lodged on 2 March 2009 — Ingrid Putz v Medianess Electronics GmbH	20

2009/C 090/32	Case C-90/09 P: Appeal brought on 3 March 2009 by General Química, SA, Repsol Química, SA and Repsol YPF, SA against the judgment delivered on 18 December 2008 in Case T-85/06 General Química and Others v Commission of the European Communities	20

	Court of First Instance
2009/C 090/33	Joined Cases T-265/04, T-292/04 and T-504/04: Judgment of the Court of First Instance of 4 March 2009 — Tirrenia di Navigazione and Others v Commission (State aid — Maritime transport — Subsidies paid by the Italian authorities to regional undertakings — Decision declaring the aid in part compatible and in part incompatible with the common market — Action for annulment — Admissibility — Legal interest in bringing proceedings — New or existing aid — Duty to state reasons — Article 4(3) of Regulation (EEC) No 3577/92)	22

2009/C 090/34	Case T-68/05: Judgment of the Court of First Instance of 10 March 2009 — Aker Warnow Werft and Kvaerner v Commission (State aid — Shipbuilding — Former German Democratic Republic — Aid paid to cover losses from shipbuilding contracts — Competition aid — No excess payment)	22

2009/C 090/35	Case T-121/05: Judgment of the Court of First Instance of 11 March 2009 — Borax Europe v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents and sound recordings — Refusal of access — Exception relating to the protection of the privacy and integrity of the individual — Exception relating to the protection of the decision-making process)	23

2009/C 090/36	Case T-166/05: Judgment of the Court of First Instance of 11 March 2009 — Borax Europe v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents and sound recordings — Refusal of access — Exception relating to the protection of the privacy and integrity of the individual — Exception relating to the protection of the decision-making process)	23

2009/C 090/37	Case T-424/05: Judgment of the Court of First Instance of 4 March 2009 — Italy v Commission (State aid — Aid scheme established by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies — Decision declaring the aid to be incompatible with the common market — Obligation to state reasons — Selective nature of the measure — Effect on trade between the Member States and distortion of competition — Article 87(3)(c) EC)	24

2009/C 090/38	Case T-445/05: Judgment of the Court of First Instance of 4 March 2009 — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission (State aid — Aid scheme implemented by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies — Decision declaring the aid incompatible with the common market — Actions for annulment — Direct and individual concern — Admissibility — Obligation to state the reasons on which the decision is based — Selective nature of the measure — Obligation of recovery)	24

2009/C 090/39	Case T-249/06: Judgment of the Court of First Instance of 10 March 2009 — Interpipe Niko Tube and Interpipe NTRP v Council (Dumping — Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine — Calculation of the normal value — Cooperation of the Community industry — Adjustment — Functions comparable to those of an agent working on a commission basis — Single economic entity — Manifest error of assessment — Offer of an undertaking — Rights of the defence — Duty to state reasons)	25

2009/C 090/40	Case T-168/07: Judgment of the Court of First Instance of 4 March 2009 — Professional Tennis Registry v OHIM — Registro Profesional de Tenis (PTR PROFESSIONAL TENNIS REGISTRY) (Community trade mark — Opposition proceedings — Application for registration of the figurative mark PTR PROFESSIONAL TENNIS REGISTRY as a Community trade mark — Earlier national and Community figurative mark RPT Registro Profesional de Tenis, S.L. and earlier national figurative mark RPT European Registry of Professional Tennis — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)	25

2009/C 090/41	Case T-8/08: Judgment of the Court of First Instance of 10 March 2009 — Piccoli v OHIM (Shape of a sea shell) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a seashell — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character acquired through use — Article 7(3) of Regulation No 40/94)	26

2009/C 090/42	Case T-346/06: Order of the Court of First Instance of 18 February 2009 — IMS v Commission (Action for annulment and for damages — Directive 98/37/EC — Machinery bearing the CE marking — Hazards to the safety of persons — National prohibition measure — Opinion of the Commission declaring the measure to be justified — Action for annulment — Withdrawal of the contested measure — No need to adjudicate — Action for damages — Article 44(1)(c) of the Rules of Procedure of the Court of First Instance — Inadmissibility)	26

2009/C 090/43	Case T-306/08 P: Order of the Court of First Instance of 15 January 2009 — Braun-Neumann v Parliament (Appeal — Staff case — Pensions — Survivor's pension — Payment of 50% owing to the existence of another surviving spouse — Act adversely affecting an official — Complaint out of time)	27

2009/C 090/44	Case T-46/09: Action brought on 6 February 2009 — Hellenic Republic v Commission	27

2009/C 090/45	Case T-49/09: Action brought on 30 January 2009 — Evropaïki Dynamiki v Commission	29

2009/C 090/46	Case T-50/09: Action brought on 3 February 2009 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids)	29

2009/C 090/47	Case T-53/09: Action brought on 11 February 2009 — Cafea v OHIM — Christian (BEST FARM)	30

2009/C 090/48	Case T-54/09: Action brought on 11 Februar 2009 — XXXLutzMarken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil)	30

2009/C 090/49	Case T-56/09: Action brought on 13 February 2009 — Saint-Gobain Glass France and Others v Commission	31

2009/C 090/50	Case T-68/09: Action brought on 18 February 2009 — Soliver NV v Commission of the European Communities	32

2009/C 090/51	Case T-69/09: Action brought on 20 February 2009 — Provincie Groningen and Provincie Drenthe v Commission	33

2009/C 090/52	Case T-70/09: Action brought on 19 February 2009 — Netherlands v Commission	34

2009/C 090/53	Case T-77/09: Action brought on 17 February 2009 — hofherr communikation v OHIM (NATURE WATCH)	34

2009/C 090/54	Case T-83/09: Action brought on 20 February 2009 — Chalk v OHIM — Reformed Spirits Company Holdings (CRAIC)	35

2009/C 090/55	Case T-84/09: Action brought on 19 February 2009 — Italy v Commission	36

2009/C 090/56	Case T-85/09: Action brought on 26 February 2009 — Kadi v Commission	37

2009/C 090/57	Case T-96/09: Action brought on 10 March 2009 — UCAPT v Council	37

2009/C 090/58	Case T-533/93: Order of the Court of First Instance of 3 March 2009 — Bouma and Others v Council and Commission	38

2009/C 090/59	Case T-157/07: Order of the Court of First Instance of 3 March 2009 — People’s Mojahedin Organization of Iran v Council	38

2009/C 090/60	Case T-165/07: Order of the Court of First Instance of 6 March 2009 — Red Bull v OHIM — Grupo Osborne (TORO)	38

2009/C 090/61	Case T-320/07: Order of the Court of First Instance of 5 March 2009 — Jones and Others v Commission	38

2009/C 090/62	Case T-36/08: Order of the Court of First Instance of 4 March 2009 — Furukawa Electric North America v OHMI (SLIM LINE)	39

2009/C 090/63	Case T-236/08: Order of the Court of First Instance of 24 February 2009 — HPA v Commission	39

	European Union Civil Service Tribunal
2009/C 090/64	Case F-11/09: Action brought on 8 February 2009 — Marcuccio v Commission	40

2009/C 090/65	Case F-13/09: Action brought on 19 February 2009 — Peláez Jimeno v Parliament	40

2009/C 090/66	Case F-14/09: Action brought on 20 February 2009 — Almeida Campos and Others v Council of the European Union	40

2009/C 090/67	Case F-16/09: Action brought on 24 February 2009 — De Britto Patricio-Dias v Commission	41