(2010/C 161/01)

Last publication of the Court of Justice in the Official Journal of the European Union

OJ C 148, 5.6.2010

Past publications

OJ C 134, 22.5.2010

OJ C 113, 1.5.2010

OJ C 100, 17.4.2010

OJ C 80, 27.3.2010

OJ C 63, 13.3.2010

OJ C 51, 27.2.2010

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

Judgment of the Court (Second Chamber) of 29 April 2010 — European Commission v Kingdom of the Netherlands

(Case C-92/07) (1)

(EEC-Turkey Association Agreement - Standstill and non-discrimination rules - Obligation to pay charges in order to obtain or extend a residence permit - Proportionality of the charges to be paid - Comparison with charges paid by citizens of the Union - Article 9 of the Association Agreement - Article 41(1) of the Additional Protocol - Articles 10(1) and 13 of Decision No 1/80 of the Association Council)

(2010/C 161/02)

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: P.J. Kuijper and S. Boelaert, Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G. Sevenster, C.M. Wissels and D.J.M. de Grave, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Breach of Article 9 of the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 and concluded on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113), of Article 41 of the Additional Protocol, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113), and of Articles 10(1) and 13 of Decision No 1/80 of 19 September 1980 on the development of the Association — Discriminatory administrative charges in respect of residence permits

Operative part of the judgment

The Court:

1.

Declares that, by introducing and maintaining a system for the issue of residence permits providing for charges which are disproportionate in relation to those imposed on nationals of Member States for the issue of similar documents, and by applying that system to Turkish nationals who have a right of residence in the Netherlands on the basis of: — the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other hand, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963; — the Additional Protocol, 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; and of — Decision No 1/80, adopted on 19 September 1980 by the Association Council, set up by the Association Agreement and consisting, on the one hand, of members of the Governments of the Member States, of the Council of the European Union and of the Commission of the European Communities and, on the other hand, of members of the Turkish Government, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 9 of that Association Agreement, Article 41 of that Additional Protocol and Articles 10(1) and 13 of Decision No 1/80;

2.	Orders the Kingdom of the Netherlands to pay the costs and the Federal Republic of Germany to bear its own costs.

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(1)  OJ C 95, 28.4.2007.

Judgment of the Court (Grand Chamber) of 20 April 2010 — European Commission v Kingdom of Sweden

(Case C-246/07) (1)

(Failure of a Member State to fulfil obligations - Breach of Articles 10 EC and 300(1) EC - Stockholm Convention on Persistent Organic Pollutants - Unilateral proposal by a Member State to list a substance in Annexe A to that convention)

(2010/C 161/03)

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: G. Valero Jordana and C. Tufvesson, acting as Agents)

Defendant: Kingdom of Sweden (represented by: A. Kruse and A. Falk, acting as Agents)

Interveners in support of the defendant: Kingdom of Denmark (represented by C. Pilgaard Zinglersen and R. Holdgaard, acting as Agents), Kingdom of the Netherlands (represented by C.M. Wissels and D.J.M. de Grave, acting as Agents), Republic of Finland (represented by J. Heliskoski, acting as Agent), United Kingdom of Great Britain and Northern Ireland (represented by V. Jackson, acting as Agent, and by D. Anderson QC)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 10 EC and 300(1) EC — Unilateral proposal to list a substance, perfluoroctane sulfonate, in Annex A to the Stockholm Convention on Persistent Organic Pollutants

Operative part of the judgment

The Court:

1.	Declares that, by unilaterally proposing that a substance, perfluoroctane sulfonate, be listed in Annex A to the Stockholm Convention on Persistent Organic Pollutants, the Kingdom of Sweden failed to fulfil its obligations under Article 10 EC;

2.	Dismisses the action as to the remainder;

3.	Orders the Kingdom of Sweden to pay the European Commission’s costs;

4.	Orders the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland and the United Kingdom of Great Britain and Ireland to bear their own costs.

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(1)  OJ C 183, 4.8.2007.

Judgment of the Court (Fourth Chamber) of 22 April 2010 — European Commission v Kingdom of Spain

(Case C-423/07) (1)

(Failure of a Member State to fulfil obligations - Directive 93/37/EEC - Articles 3 and 11 - Public works concession contracts - Obligations regarding advertising - Extent of the obligations - Contract notice - Description of the object of the concession and of the location of the works - Additional works not expressly set out in the contract notice or in the tender specifications - Principle of equal treatment)

(2010/C 161/04)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: D. Kukovec and M. Konstantinidis, and by S. Pardo Quintillán, and by M. Canal Fontcuberta, abogada)

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

Re:

Failure of Member State to fulfil obligations — Infringement of Article 3 and Article 11(3) (6) (7)(11) and (12) of 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) — Infringement of the principles of equality of treatment and non-discrimination — Works not covered by the concession — Award subsequent to award of concession

Operative part of the judgment

The Court:

1.

Declares that, by awarding to Iberpistas, on 5 November 1999 — the construction of a third lane in each direction on the part of the toll section of the A-6 motorway between Villalba and the Valle de los Caídos junction, — the construction of a third reversible lane on the part of the toll section of the A-6 motorway between the Valle de los Caídos junction and the city of San Rafael, including the construction of a new tunnel, and — the construction of a fourth lane in each direction on the toll-free section of the A-6 motorway between Madrid and Villalba, without those works having been listed in the object of the public works concession contract, as described in the notice published in the Official Journal of the European Communities or in the tender specifications, the Kingdom of Spain has failed to fulfil its obligations under Articles 3(1) and 11(3) and (6) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, read in conjunction with Annex V thereto;

2.	Dismisses the action as to the remainder;

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

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(1)  OJ C 297, 8.12.2007.

Judgment of the Court (Third Chamber) of 29 April 2010 — European Commission v Federal Republic of Germany

(Case C-160/08) (1)

(Failure of a Member State to fulfil obligations - Public service contracts - Articles 43 EC and 49 EC - Directives 92/50/EEC and 2004/18/EC - Public emergency services - Emergency ambulance and qualified patient transport services - Obligation of transparency - Article 45 EC - Activities connected with the exercise of official authority - Article 86(2) EC - Services of general economic interest)

(2010/C 161/05)

Language of the case: German

Parties

Applicant: European Commission (represented by: M. Kellerbauer and D. Kukovec, Agents)

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

Intervener in support of the defendant: Kingdom of the Netherlands (represented by: C.M. Wissels and Y. de Vries, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 43 EC and 49 EC, 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) and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Practice of local authorities of awarding directly, without open procedures for the award of public contracts and in breach of the principles of transparency and non-discrimination, contracts and concessions for the supply of public ambulance services.

Operative part of the judgment

The Court:

1.

Declares that, by failing to publish notices of the results of the procedure for the award of contracts, the Federal Republic of Germany has failed to fulfil its obligations under Article 10 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, in conjunction with Article 16 thereof or, since 1 February 2006, under Article 22 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in conjunction with Article 35(4) thereof in relation to the award in accordance with the tender model of contracts for public emergency ambulance and qualified patient transport services in the Länder of Saxony-Anhalt, North Rhine-Westphalia, Lower Saxony and Saxony;

2.	Dismisses the action as to the remainder;

3.	Orders the European Commission, the Federal Republic of Germany and the Kingdom of the Netherlands to bear their own costs.

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(1)  OJ C 209, 15.8.2008.

Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Østre Landsret — Denmark) — Dansk Transport og Logistik v Skatteministeriet

(Case C-230/08) (1)

(Community Customs Code - Articles 202, 215(1) and (3), 217(1) and point (d) of the first paragraph of Article 233 - Notion of goods which are ‘seized and simultaneously or subsequently confiscated’ - Regulation implementing the Customs Code - Article 867a - Directive 92/12/EEC - Articles 5(1) and (2), 6, 7(1), 8 and 9 - Sixth VAT Directive - Articles 7, 10(3) and 16(1) - Unlawful introduction of goods - Transport of goods with a TIR carnet - Seizure and destruction - Determination of the Member State in which the customs debt is incurred and VAT and excise duty become chargeable - Extinction of the customs and tax debt)

(2010/C 161/06)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Dansk Transport og Logistik

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of Articles 215 and 233 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), Article 454 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1993 L 253, p. 1), Articles 5 and 6 of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), and Articles 7 and 10 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Extinction of customs and tax debts upon seizure and destruction by the authorities of a Member State when the goods are unlawfully brought into the customs territory of the Community

Operative part of the judgment

1.

A situation in which goods which are detained by the local customs and tax authorities when introduced into the customs territory of the Community in the area in which the first customs office is situated at the external border of the Community, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, is covered by the concept of goods which are ‘seized and simultaneously or subsequently confiscated’ in point (d) of the first paragraph of Article 233 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 955/1999 of the European Parliament and of the Council of 13 April 1999, with the result that the customs debt is extinguished pursuant to that provision.

2.

The third subparagraph of Article 5(1) and Article 6(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for excise duty on them does not occur. Where goods are seized after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and simultaneously or subsequently destroyed by those authorities, without having left their possession, the excise duty on them is not to be deemed ‘to have been placed under a suspension arrangement’ for the purposes of the first subparagraph of Article 5(2) and Article 6(1)(c) of that directive, read in conjunction with Articles 84(1)(a) and 98 of Regulation No 2913/92, as amended by Regulation No 955/99, and Article 867a of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, with the result that the chargeable event for excise duty on those goods occurs and, consequently, the excise duty on them becomes chargeable.

3.

Articles 2(2), 7 and 10(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 1999/85/EC of 22 October 1999, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for value added tax on them does not occur and, consequently, that tax does not become chargeable. However, the second subparagraph of Article 10(3) in conjunction with Article 16(1)(B)(c) of that directive and Article 867a of Regulation No 2454/93, as amended by Regulation No 1662/1999, must be interpreted as meaning that, for goods which are seized by those authorities after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, the chargeable event for value added tax occurs and that tax is chargeable, even if those goods are subsequently placed under a customs warehousing procedure.

4.

Articles 202, 215(1) and (3), and 217 of Regulation No 2913/92, as amended by Regulation No 955/1999, and Articles 7(2) and 10(3) of Sixth Directive 77/388, as amended by Directive 1999/85, must be interpreted as meaning that it is the authorities in the Member State situated at the external border of the Community at which the goods were unlawfully introduced into the customs territory of the Community which are competent to recover the customs debt and the value added tax, even if those goods were then transported to another Member State where they were discovered then seized. Articles 6(1) and 7(1) of Directive 92/12, as amended by Directive 96/99, must be interpreted as meaning that the authorities in that latter Member State are competent to recover the excise duty, provided that those goods are held for commercial purposes. It is for the national court to determine whether that condition is satisfied in the dispute before it.

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(1)  OJ C 197, 2.8.2008.

Judgment of the Court (Grand Chamber) of 20 April 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Italy) — Federutility, Assogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita Srl, Sorgenia SpA v Autorità per l’energia elettrica e il gas

(Case C-265/08) (1)

(Directive 2003/55/EC - Internal market in natural gas - State intervention on the price for the supply of natural gas after 1 July 2007 - Public service obligations of undertakings operating in the gas sector)

(2010/C 161/07)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Federutility, Assogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita Srl, Sorgenia SpA

Defendant: Autorità per l’energia elettrica e il gas

Re:

Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Articles 3(2) and 23 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57) — National legislation providing for the fixing of prices for the supply of natural gas to domestic customers

Operative part of the judgment

Articles 3(2) and 23(1) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC do not preclude national legislation such as that at issue in the main proceedings, which permits determination of the price level for the supply of natural gas by the definition of ‘reference prices’, such as those at issue in the main proceedings, after 1 July 2007, provided that such intervention:

—

pursues a general economic interest consisting in maintaining the price of the supply of natural gas to final consumers at a reasonable level having regard to the reconciliation which Member States must make, taking account of the situation in the natural gas sector, between the objective of liberalisation and that of the necessary protection of final consumers pursued by Directive 2003/55;

—	compromises the free determination of prices for the supply of natural gas after 1 July 2007 only in so far as is necessary to achieve such an objective in the general economic interest and, consequently, for a period that is necessarily limited in time;

—	is clearly defined, transparent, non discriminatory and verifiable, and guarantees equal access for EU gas companies to consumers.

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(1)  OJ C 236, 13.09.2008.

Judgment of the Court (Fourth Chamber) of 29 April 2010 (reference for a preliminary ruling from the House of Lords — United Kingdom) — The Queen, M and Others v Her Majesty’s Treasury

(Case C-340/08) (1)

(Common foreign and security policy - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Freezing of funds and economic resources - Regulation (EC) No 881/2002 - Article 2(2) - Prohibition of making funds available to the persons listed in Annex I to that regulation - Scope - Social security and social assistance benefits paid to the spouse of a person included in Annex I)

(2010/C 161/08)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: The Queen, M and Others

Defendant: Her Majesty’s Treasury

Re:

Reference for a preliminary ruling — House of Lords — Interpretation of Article 2(2) of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9) — Scope of the prohibition on making economic resources available to persons listed in Annex I — Social security or social assistance benefits provided by the State to such a person's spouse

Operative part of the judgment

Article 2(2) of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, as amended by Council Regulation (EC) No 561/2003 of 27 March 2003, must be construed as not applying to the provision by the State of social security or social assistance benefits to the spouse of a person designated by the committee created pursuant to Paragraph 6 of Resolution 1267 (1999) of the Security Council of the United Nations and included in the list in Annex I to that regulation, as amended, on the grounds only that the spouse lives with that person and will or may use some of those payments to pay for goods and services which the designated person also will consume or from which he also will benefit.

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(1)  OJ C 260, 11.10.2008.

Judgment of the Court (Third Chamber) of 22 April 2010 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-346/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2001/80/EC - Pollution and nuisance - Combustion plants - Limitation of emissions of certain pollutants into the air - Directive not applied to the Lynemouth power plant (United Kingdom))

(2010/C 161/09)

Language of the case: English

Parties

Applicant: European Commission (represented by: P. Oliver and A. Alcover San Pedro, acting as Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: L. Seeboruth, acting as Agent, and D. Wyatt QC)

Re:

Failure of a Member State to fulfil obligations — Infringement, so far as concerns the power plant in Lynemouth, Northumberland, of Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p. 1) — Failure to have achieved significant reductions in emissions from that plant within the period prescribed in Article 4(3) of the directive

Operative part of the judgment

The Court:

1.

Declares that, by failing to apply Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants to the power plant operated by Rio Tinto Alcan Smelting and Power (UK) Ltd in Lynemouth, in north-east England, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

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(1)  OJ C 260, 11.10.2008.

Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Conseil d’État — France) — Solgar Vitamin’s France, Valorimer SARL, Christian Fenioux, L’Arbre de Vie SARL, Source Claire, Nord Plantes EURL, RCS Distribution, Ponroy Santé, Syndicat de la Diététique et des Compléments Alimentaires v Ministre de l’Économie, des Finances et de l’Emploi, Ministre de la Santé, de la Jeunesse et des Sports, Ministre de l’Agriculture et de la Pêche

(Case C-446/08) (1)

(Directive 2002/46/EC - Approximation of laws of the Member States relating to food supplements - Vitamins and minerals which may be used in the manufacture of food supplements - Maximum amounts - Harmonisation at European Union level - None - Competence of the Member States - Rules to be complied with and criteria to take into consideration when setting those amounts - National legislation setting those amounts - Setting the amount at zero)

(2010/C 161/10)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Solgar Vitamin’s France, Valorimer SARL, Christian Fenioux, L’Arbre de Vie SARL, Source Claire, Nord Plantes EURL, RCS Distribution, Ponroy Santé, Syndicat de la Diététique et des Compléments Alimentaires

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

Intervener in support of the defendant: Syndicat de la Diététique et des Compléments Alimentaires

Re:

Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51) and, in particular, Articles 5(4) and 11(2) thereof — Competence of Member States to determine the maximum amounts of vitamins and minerals permitted in food supplements in the absence of Community legislation on this matter — Criteria to be taken into account when setting maximum contents — Total ban on fluoride imposed by the authorities of a Member State without regard to the rules contained in Article 12 of the above Directive — Quantitative restriction on trade in breach of Articles 28 EC and 30 EC.

Operative part of the judgment

1.

Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements must be interpreted as meaning that, without prejudice to the EC Treaty, the Member States remain competent to adopt legislation on the maximum and minimum amounts of vitamins and minerals which may be used in the manufacture of food supplements so long as the European Commission has not laid down those amounts in accordance with Article 5(4) of that directive.

2.

In addition to the obligation to respect Articles 28 EC and 30 EC, the Member States must also be guided by the criteria laid down in Article 5(1) and (2) of Directive 2002/46, including the requirement for a risk assessment based on generally accepted scientific data in setting the maximum amount of vitamins and minerals which may be used in the manufacture of food supplements, while waiting for the European Commission to lay down the amounts pursuant to Article 5(4).

3.

Directive 2002/46 must be interpreted as meaning that in a situation such as that in the main proceedings where, when setting the maximum amount of a mineral which may be used in the manufacture of food supplements, it is impossible to calculate precisely the intake of that mineral from other dietary sources, and so long as the European Commission has not laid down the maximum amounts of vitamins and minerals which may be used in the manufacture of food supplements in accordance with Article 5(4) of that directive, a Member State may, if there is a genuine risk that that intake will exceed the upper safe limit established for the mineral in question, and provided that Articles 28 EC and 30 EC are respected, set the maximum amount at a zero level without resorting to the procedure laid down in Article 12 of that directive.

4.

Article 5 of Directive 2002/46 must be interpreted as meaning that the fact that appropriate labelling might dissuade the group of consumers to which it is addressed from using a nutrient beneficial to them in small doses is not a relevant criterion for setting the maximum amounts of vitamins and minerals which may be used in the manufacture of food supplements. Taking account of the varying degrees of sensitivity of different consumer groups allows a Member State to apply a maximum amount appropriate for a specific group of consumers, such as children, to the whole population only if that measure is limited to what is necessary to protect the health of the persons belonging to that group and only if that measure is proportionate to the objective it pursues, and only if that objective cannot be attained by measures which are less restrictive to trade within the European Union, which is a matter to be ascertained by the national court.

5.

Directive 2002/46 must be interpreted as meaning that it precludes the setting of maximum amounts of vitamins and minerals which may be used in the manufacture of food supplements where, in the absence of a genuine risk to human health, upper safe limits have not been established for those vitamins and minerals, unless such a measure is justified in accordance with the precautionary principle, if a scientific risk assessment reveals that scientific uncertainty persists as regards the existence or extent of genuine risks to human health. After the upper safe limits have been established, the possibility of setting such maximum amounts at a level significantly lower than those limits cannot be excluded if the setting of those maximum amounts can be justified by taking into account the criteria in Article 5(1) and (2) of Directive 2002/46 and that it complies with the principle of proportionality. That assessment is a matter for the national court and must be carried out on a case-by-case basis.

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(1)  OJ C 327, 20.12.2008.

Judgment of the Court (First Chamber) of 22 April 2010 (reference for a preliminary ruling from the Landesgericht Innsbruck — Austria) — Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol

(Case C-486/08) (1)

(Social policy - Framework agreements on part-time work and on fixed-term work - Disadvantageous provisions provided for by national legislation for contractual public servants working part-time, on a casual basis, or under a fixed term contract - Principle of equal treatment)

(2010/C 161/11)

Language of the case: German

Referring court

Landesgericht Innsbruck

Parties to the main proceedings

Applicant: Zentralbetriebsrat der Landeskrankenhäuser Tirols

Defendant: Land Tirol

Re:

Reference for a preliminary ruling — Landesgericht Innsbruck — Interpretation of Clause 4(1) and (2) of the Annex to Council Directive 97/81/EC of 15 December 1997 on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), of Clause 4 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), and Article 14(1)(c) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23) — National legislation governing workers employed under a private law contract excluding from its scope certain categories of workers, part-time, casual or those employed under a fixed-term contract — Disadvantageous provisions foreseen concerning the right to annual leave, for staff changing from full-time work to part-time work and for staff taking parental leave for two years — Principal of equal treatment of men and women workers, of part-time and full-time workers, and of workers employed under a fixed-term contract and workers employed under a contract of indefinite duration

Operative part of the judgment

1.

Relevant European Union law and, in particular, Clause 4.2 of the framework agreement on part-time work, concluded on 6 June 1997 which is annexed to Council Directive 97/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, must be interpreted as precluding a national provision such as Paragraph 55(5) of the Law of the Province of Tyrol on contractual public servants (Tiroler Landes Vertragsbedienstetengesetz) of 8 November 2000, in the version in force up to 1 February 2009, under which, in the event of a change in the working hours of a worker, the amount of leave not yet taken is adjusted in such a way that a worker who reduces his working hours from full-time to part-time suffers a reduction in the right to paid annual leave he has accumulated but not been able to exercise while working full-time, or he can only take that leave with a reduced level of holiday pay.

2.

Clause 4 of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding a national provision such as Paragraph 1(2)(m) of the Law of the Province of Tyrol on contractual public servants of 8 November 2000, in the version in force up to 1 February 2009, which excludes from the scope of that law workers employed under a fixed-term contract of a maximum of six months or on a casual basis.

3.

Clause 2.6 of the framework agreement on parental leave concluded on 14 December 1995, which is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997 must be interpreted as precluding a national provision such as the last sentence of Paragraph 60 of the Law of the Province of Tyrol on contractual public servants of 8 November 2000, in the version in force up to 1 February 2009, under which workers exercising their right to parental leave of two years lose, following that leave, their right to paid annual leave accumulated during the year preceding the birth of their child.

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(1)  OJ C 44, 21.2.2009.

Judgment of the Court (Second Chamber) of 22 April 2010 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Vera Mattner v Finanzamt Velbert

(Case C-510/08) (1)

(Free movement of capital - Articles 56 EC and 58 EC - Gift tax - Land on which a building has been constructed - Allowance to be set against the taxable value - Different treatment of residents and non-residents)

(2010/C 161/12)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Vera Mattner

Defendant: Finanzamt Velbert

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Articles 39 EC and 43 EC and of Article 56 EC in conjunction with Article 58 EC — National legislation on the taxation of gifts of land fixing the tax-free part of the value of the land at EUR 1 100 if the donor and the acquirer are resident in another Member State, whereas the tax-free part is EUR 205 000 if either the donor or the acquirer is resident in national territory.

Operative part of the judgment

Article 56 EC in conjunction with Article 58 EC must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, for the calculation of gift tax, the allowance to be set against the taxable value in the case of a gift of immovable property in that State is smaller where the donor and the donee were resident in another Member State on the date of the gift than the allowance which would have applied if at least one of them had been resident in the former Member State on that date.

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(1)  OJ C 44, 21.2.2009.

Judgment of the Court (Third Chamber) of 22 April 2010 (references for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v X (C-536/08), fiscale eenheid Facet BV/Facet Trading BV (C-539/08)

(Joined Cases C-536/08 and C-539/08) (1)

(Sixth VAT Directive - Article 17(2) and (3) - Article 28b(A)(2) - Right to deduction - Transitional arrangements for the taxation of trade between Member States - Place of the intra-Community acquisitions of goods)

(2010/C 161/13)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendants: X (C-536/08), fiscale eenheid Facet BV/Facet Trading BV (C-539/08)

Re:

References for a preliminary ruling — Hoge Raad der Nederlanden (Den Haag) — Interpretation of Article 17(2) and (3) and Article 28b(A)(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Transitional arrangements for the taxation of trade between Member States — Place of intra-Community acquisitions of goods

Operative part of the judgment

Articles 17(2) and (3) and 28b(A)(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 92/111/EEC of 14 December 1992, must be interpreted as meaning that a taxable person coming within the situation referred to in the first subparagraph of Article 28b(A)(2) does not have the right immediately to deduct the input value added tax charged on an intra-Community acquisition.

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(1)  OJ C 44, 21.2.2009.

Judgment of the Court (Fourth Chamber) of 22 April 2010 (reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — The Queen, Association of the British Pharmaceutical Industry v Medicines and Healthcare Products Regulatory Agency

(Case C-62/09) (1)

(Directive 2001/83/EC - Article 94 - Financial inducements to medical practices which prescribe certain medicinal products to their patients - Public health authorities - Doctors - Freedom to prescribe)

(2010/C 161/14)

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: The Queen, Association of the British Pharmaceutical Industry

Defendant: Medicines and Healthcare Products Regulatory Agency

Intervener in support of the defendant: NHS Confederation (Employers) Company Ltd

Re:

Reference for a preliminary ruling — High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — Interpretation of Article 94(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67) — Implementation by a public body forming part of the national health service of a financial inducement scheme in favour of medical practices which prescribe certain medicinal products to their patients

Operative part of the judgment

Article 94(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as not precluding financial incentive schemes, such as the one at issue in the main proceedings, implemented by the national public health authorities in order to reduce their public-health expenditure and designed to encourage, for the purpose of treating certain conditions, the prescription by doctors of specific named medicinal products containing an active substance which is different from the active substance of the medicinal product which was previously prescribed or which might have been prescribed but for such an incentive scheme.

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(1)  OJ C 90, 18.4.2009.

Judgment of the Court (Fourth Chamber) of 22 April 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Dimos Agiou Nikolaou Kritis v Ipourgos Agrotikis Anaptixis kai Trofimon

(Case C-82/09) (1)

(Regulation (EC) No 2152/2003 - Monitoring of forests and environmental interactions in the European Union - Definitions - Terms ‘forest’ and ‘other wooded land’ - Field of application)

(2010/C 161/15)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Dimos Agiou Nikolaou Kritis

Defendant: Ipourgos Agrotikis Anaptixis kai Trofimon

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 3(a) and (b) of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus) (OJ 2003 L 324, p. 1) — Definitions of ‘forest’ and ‘other wooded land’ — Divergent definitions

Operative part of the judgment

Article 3(a) and (b) of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus), which define, for the purposes of that regulation, the terms ‘forest’ and ‘wooded land’, must be interpreted as not precluding national provisions which contain different definitions of those terms as regards actions which are not governed by the regulation.

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(1)  OJ C 102, 1.5.2009.

Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Camar Srl v Presidenza del Consiglio dei Ministri

(Case C-102/09) (1)

(International agreements - Yaoundé Convention - Fourth ACP-EEC Lomé Convention - Standstill clause - Internal taxation - Bananas)

(2010/C 161/16)

Language of the case: Italian

Referring court

Tribunale di Firenze

Parties to the main proceedings

Applicant: Camar Srl

Defendant: Presidenza del Consiglio dei Ministri

Re:

Reference for a preliminary ruling — Tribunale di Firenze — Common organisation of the markets — Bananas — Compatibility with Article 14 of the First Yaoundé Convention and with the import system governed by the ACP-EEC Lomé Convention of a national law imposing a consumption tax on bananas originating in Somalia

Operative part of the judgment

1.

Article 14 of the Convention of Association between the European Economic Community and the African States and Madagascar associated with the Community, signed at Yaoundé on 20 July 1963, did not preclude a tax on bananas originating in Somalia such as that introduced by Law No 986/1964 of 9 October 1964.

2.

The national court is not required to examine the specific effects of increases of a tax on imports of bananas originating in Somalia, such as the tax introduced by the legislation at issue in the main proceedings, by comparison with the situation before 1 April 1976, in order to determine whether such increases are compatible with the standstill clause in Article 1 of Protocol No 5 on bananas annexed to the Fourth Lomé Convention. However, increases of such a tax which simply adjust it to take account of inflation are not incompatible with that clause.

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(1)  OJ C 129, 6.6.2009.

Judgment of the Court (Fourth Chamber) of 22 April 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Enosi Efopliston Aktoploïas and Others v Ipourgos Emporikis Naftilias, Ipourgos Aigaiou

(Case C-122/09) (1)

(Maritime transport - Maritime cabotage - Regulation (EEC) No 3577/92 - Temporary exemption from the implementation of that regulation - Obligation on Member States to refrain from adopting, before expiry of the period of exemption, provisions liable seriously to compromise the application of that regulation)

(2010/C 161/17)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Enosi Efopliston Aktoploïas, ANEK, Minoïkes Grammes, N.E. Lesvou, Blue Star Ferries

Defendants: Ipourgos Emporikis Naftilias, Ipourgos Aigaiou

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 1, 2, 4 and 6(3) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — Temporary exemption from implementation of the regulation — Obligation on Member States not to adopt, before the period of exemption expires, provisions liable to compromise the full and complete application of the regulation — Right of individuals to rely on the regulation to challenge the validity of national provisions having such an effect

Operative part of the judgment

Assuming that the Greek legislature was required, for the duration of the exemption in Greece from implementation of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), to refrain from adopting provisions liable seriously to compromise the full and effective application of the regulation from 1 January 2004, the date on which that period of exemption expired, such full and effective application is not seriously compromised simply because in 2001 the Greek legislature adopted provisions contrary to the regulation which are exhaustive and permanent in nature and do not lay down that they cease to apply from 1 January 2004.

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(1)  OJ C 141, 20.6.2009.

Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Finanzgericht München — Germany) — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München

(Case C-123/09) (1)

(Common Customs Tariff - Tariff headings - Combined nomenclature classification of riding gloves - Heading 3926 - Heading 6116)

(2010/C 161/18)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Roeckl Sporthandschuhe GmbH & Co. KG

Defendant: Hauptzollamt München

Re:

Reference for a preliminary ruling — Finanzgericht München — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1) — Textile product roughened on one side for the sole purpose of strengthening adhesion of a layer of plastic material — Classification under subheading 3926 20 00 of the Combined Nomenclature

Operative part of the judgment

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, must be interpreted as meaning that riding gloves, such as those at issue in the main proceedings, made up of fabric raised on one side and covered with a layer of plastic, where the support fabric is raised on one side and the raised side is then completely covered with a layer of polyurethane foam, which has an essential function in use of the gloves as riding gloves, must be classified under subheading 3926 20 00 of the Combined Nomenclature.

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(1)  OJ C 129, 6.6.2009.

Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Raad van State — Netherlands) — Smit Reizen BV v Minister van Verkeer en Waterstaat

(Case C-124/09) (1)

(Reference for a preliminary ruling - Regulations (EEC) Nos 3820/85 and 3821/85 - Road transport - Obligation to record - Rest periods and other periods of work - Time spent in travelling to the place where a vehicle fitted with recording equipment is taken over - Meaning of ‘operating centre’)

(2010/C 161/19)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Smit Reizen BV

Defendant: Minister van Verkeer en Waterstaat

Re:

Reference for a preliminary ruling — Raad van State — Interpretation of Article 1 of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1) and of Article 15 of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8) — Breaks from driving, daily rest periods and working time — Meaning — Obligation to record — Time spent in travelling to the place where the vehicle is taken over and which is at a distance from the operating centre of the undertaking — Operating centre — Meaning — Driver brought to the place by a third party

Operative part of the judgment

1.

The term ‘operating centre’, in paragraph 21 et seq. of the judgment in Case C-297/99 Skills Motor Coaches and Others must be defined as the place to which the driver is actually attached, namely the transport undertaking facilities from which he usually carries out his service and to which he returns at the end of that service, in the normal exercise of his functions and without complying with specific instructions from his employer.

2.

Whether the driver concerned drives himself to the place where he must take over a vehicle fitted with recording equipment or whether he is driven to that place by someone else has no bearing on the classification of the travelling time in the light of the concept of ‘rest’ within the meaning of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport.

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(1)  OJ C 129, 6.6.2009.

Appeal brought on 23 September 2009 by Constantin Hârsulescu against the order of the Court of First Instance (Sixth Chamber) delivered on 22 July 2009 in Case T-234/09 Hârsulescu v Romania

(Case C-374/09 P)

(2010/C 161/20)

Language of the case: Romanian

Parties

Appellant: Constantin Hârsulescu (represented by: C. Stanciu)

Other party to the proceedings: Romania

The Court of Justice (Fifth Chamber) dismissed the appeal by order of 4 March 2010.

Appeal brought on 1 March 2010 by Solvay SA against the judgment delivered by the General Court (Sixth Chamber) on 17 December 2009 in Case T-57/01 Solvay v Commission

(Case C-109/10 P)

(2010/C 161/21)

Language of the case: French

Parties

Appellant: Solvay SA (represented by: P.-A. Foriers, R. Jafferali, F. Louis, A. Vallery, avocats)

Other party to the proceedings: European Commission

Form of order sought

—	Set aside the judgment delivered on 17 December 2009;

—	therefore, re-examine the action in respect of the points that were annulled and annul the Commission’s decision of 13 December 2000, in its entirety or in part, in accordance with the pleas submitted;

—	cancel the fine of EUR 19 million or, failing that, reduce that fine by a very substantial amount in order to compensate the appellant for the serious damage it suffered on account of the extraordinary length of the proceedings;

—	order the Commission to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court.

Pleas in law and main arguments

The applicant puts forward nine pleas in support of its appeal.

By its first plea, which consists of five parts, the appellant submits that there has been an infringement of the right to be tried within a reasonable time in so far as Commission Decision 2003/6/EC of 13 December 2000 (1) was adopted more than ten years after the beginning of the investigation or, at least, after the opening of the procedure through notification to the appellant of the Commission’s statement of objections. In particular, Solvay criticises that the General Court (i) did not undertake a comprehensive assessment of the duration, including both the administrative and the judicial phase of proceedings (first part), (ii) did not take into account the duration of proceedings before the General Court (second part), (iii) made sanctions for exceeding a reasonable time subject to proof of concrete infringement of the appellant’s procedural rights even though the two principles are separate and distinct (third part), (iv) found that no such infringement existed in the present case (fourth part), (v) misinterpreted the facts of the case in that the General Court took the view that the appellant waived its right to seek, by way of an alternative plea, a reduction in the fine because the reasonable time was exceeded (fifth part), even though the appellant expressly sought the cancellation or, at least, a reduction of the fine on those grounds.

By its second plea, which consists of three parts, Solvay submits that there has been an infringement of Articles 14 and 20 of Council Regulation 17/62 (2) in so far as the General Court approved the Commission’s use, in the context of the procedure initiated on the basis of Article 102 TFEU, of documents that were seized in the course of inspections concerning the possible participation in agreements and/or concerted practices under Article 101 TFEU (first part). The appellant also criticises the General Court for letting the Commission use against the appellant documents that it collected by coincidence, even though the Commission would not have been able, at the time, to undertake an investigation for the purposes of collecting those documents without raising suspicion (second part). Finally, the appellant criticises the General Court for misinterpreting the facts of the case by finding that there was substantial similarity between the facts that the decision ordering the investigation sought to examine and those on the grounds of which the appellant was found guilty.

By its third plea, which consists of six parts, the appellant claims that the General Court infringed its procedural rights in so far as it required the appellant to show that the documents which the Commission lost could have been useful for its defence (first part). Indeed, it cannot be automatically ruled out, without some sort of provisional examination of the file, that the documents in question might have influenced the Commission’s decision (second and third part). Finally, the appellant challenges the General Court’s finding that it did not show that the documents that disappeared might have been useful for its defence as regards the existence of a dominant position (fourth part), the rebate granted to the Saint-Gobain group (fifth part) and the definition of the relevant geographic market (sixth part).

By its fourth plea, Solvay claims that there was an infringement of its rights of defence, the rules on the burden of proof and the presumption of innocence in so far as the General Court decided that the documents missing from the file would not have been useful for its defence, even though it would have been sufficient that those documents strengthen the pleas it submitted at the outset, rather than allow it to formulate new pleas (first part), and present an opportunity, even a small one, of influencing the contested decision (second part).

By its fifth plea, the appellant claims infringement of its right to be heard following the annulment by the General Court of a first decision imposing a fine on the appellant but prior to the adoption, by the Commission, of the contested decision. Indeed, the judgment under appeal does not respond to its action for annulment and refuses to acknowledge that the Commission is under an obligation to hear the undertaking at issue where an earlier judgment of the General Court finds procedural irregularity which affected the preparatory measures.

By its sixth plea, the appellant criticises that the General Court infringed Article 102 TFEU and failed to fulfil its obligation to state reasons when it found an alternative definition of the relevant geographic market — a Community-wide market or national markets — to be valid.

By its seventh plea, Solvay criticises, in the light of the obligation to state reasons and Article 102 TFEU, the General Court’s finding of a dominant position in the judgment under appeal, according to which the relevant market is either Community-wide (first part) or national (second part). Furthermore, it criticises the General Court for nor taking into account exceptional circumstances which show that it did not have a dominant position (third part).

By its eighth plea, the appellant claims an infringement of Article 102 TFEU and a failure to state the grounds in so far as the General Court took the view that the rebate of 1.5 % granted to the Saint-Gobain group constituted a fidelity rebate which had an impact on the conditions of competition.

By its ninth plea, the appellant claims that there is a lack of statement of reasons and an infringement of Article 102 TFEU in so far as the General Court found that there was a discriminatory practice resulting from the rebate system granted to commercial partners, but did not check whether that practice created competitive disadvantages among clients of the dominant supplier (first part). Finally, Solvay criticises the General Court for not taking into account the small part represented by soda ash in its clients’ costs price.

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(1)  Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 [EC] (Case COMP/33.133-C: Soda ash — Solvay) (OJ 2003 L 10, p. 10)

(2)  Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ 1962 13, p. 204)

Appeal brought on 1 March 2010 by Solvay SA against the judgment delivered by the General Court (Sixth Chamber) on 17 December 2009 in Case T-58/01 Solvay v Commission

(Case C-110/10 P)

(2010/C 161/22)

Language of the case: French

Parties

Appellant: Solvay SA (represented by: P.-A. Foriers, R. Jafferali, F. Louis, A. Vallery, avocats)

Other party to the proceedings: European Commission

Form of order sought

—	Join the present action to the appeal brought by the appellant against the judgment of the General Court of 17 December 2009 in Case T-57/01;

—	set aside the judgment delivered on 17 December 2009;

—	therefore, re-examine the action in respect of the points that were annulled and annul the Commission’s decision of 13 December 2000 in its entirety;

—	cancel the fine of EUR 2.25 million or, failing that, reduce that fine by a very substantial amount in order to compensate the appellant for the serious damage it suffered on account of the extraordinary length of the proceedings;

—	order the Commission to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court.

Pleas in law and main arguments

The appellant submits three pleas in support of its appeal.

By way of its first plea, which comprises five parts, the appellant claims infringement of the right to be tried within a reasonable time. Solvay criticises, in particular, that the General Court did not undertake a comprehensive assessment of the duration, including both the administrative and the judicial phase of the proceedings (first part), (ii) did not take into account the duration of proceedings before the General Court (second part), (iii) made sanctions for exceeding a reasonable time subject to proof of concrete infringement of the appellant’s procedural rights even though the two principles are separate and distinct (third part), (iv) found that no such infringement existed in the present case (fourth part), (v) misinterpreted the facts of the case in that the General Court took the view that the appellant waived its right to seek, by way of an alternative plea, a reduction in the fine because the reasonable time was exceeded (fifth part), even though the appellant expressly sought the cancellation or, at least, a reduction of the fine on those grounds.

By its second plea, which comprises five parts, the appellant claims that the General Court infringed its procedural rights in so far as it required the appellant to show that the documents which the Commission lost could have been useful for its defence (first part). Indeed, it cannot be automatically ruled out, without some sort of provisional examination of the file, that the documents in question might have influenced the Commission’s decision (second and third part). Further, the appellant criticises the General Court for holding, in the judgment under appeal, that the appellant did not show that the documents that disappeared might have been useful for its defence on the grounds that the appellant did not raise a plea before the General Court to contest the existence of the agreement, which it could have done even without access to the file, even though the appellant had submitted that plea before the Commission and the content of the lost documents can no longer be determined by anyone (fourth part). Finally, the appellant criticises the General Court for not having shown any interest in the lost documents on the ground that it had already rejected the appellant’s substantive plea as regards the lack of effect on trade between Member States, even though it did not know the content of the lost documents and could not therefore exclude that they might have allowed the appellant to present either additional or even entirely new arguments, both substantive and relating to the amount of the fine or the regularity of the procedure (fifth part).

By its third and last plea, the appellant claims infringement of its right to be heard following the annulment by the General Court of a first decision imposing a fine on the appellant but prior to the adoption, by the Commission, of the contested decision. Indeed, the judgment under appeal does not respond to its action for annulment and refuses to acknowledge that the Commission is under an obligation to hear the undertaking at issue where an earlier judgment of the General Court finds procedural irregularity which affected the preparatory measures.

Appeal brought on 8 March 2010 by the Commission against the judgment delivered on 15 December 2009 in Case T-156/04 Électricité de France (EDF) v Commission

(Case C-124/10 P)

(2010/C 161/23)

Language of the case: French

Parties

Appellant: European Commission (represented by: E. Gippini Fournier, B. Stromsky and D. Grespan, acting as Agents)

Other parties to the proceedings: Électricité de France (EDF), French Republic, Iberdrola SA

Form of order sought

—

Set aside the judgment of the General Court of the European Union (Third Chamber) of 15 December 2009, notified to the Commission on 16 December 2009, in Case T-156/04 EDF v Commission, in so far as the judgment: — annulled Articles 3 and 4 of Commission Decision C(2003) 4637 of 16 December 2003 on the State aid granted to EDF and the electricity and gas industries (C 68/2002, N 504/2003 and C 25/2003); — ordered the Commission to bear its own costs and to pay the costs of Électricité de France (EDF)

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

—	reserve the costs of the proceedings.

Pleas in law and main arguments

The European Commission puts forward two pleas in support of its appeal.

By its first plea, the Commission submits that the General Court misinterpreted the facts of the case. Contrary to what is stated in the judgment under appeal, the French Republic did not in fact convert a tax claim into capital, but simply granted EDF aid in the form of a corporate tax exemption. The recapitalisation of EDF, itself, was not considered in the annulled decision to be State aid; the Commission only classified its tax implications as State aid.

By its second plea, which comprises four parts, the appellant submits that the General Court committed an error of law in taking the view that the French Government acted in the present case like a prudent private investor in a market economy.

First, the appellant contests the General Court’s finding that the distinction between the State as shareholder and the State wielding public power depends primarily on the objective pursued by the State — in the present case, the recapitalisation of EDF — and not on objective and verifiable elements. First, in fact, the Court has repeatedly stated that Article 87(1) EC does not distinguish between the causes and objectives of State intervention. Second, a criterion based on the intention of the State would be particularly inappropriate for assessing the existence of State aid in so far as such a criterion is, by its very nature, subjective and subject to interpretations.

Second, the Commission criticises the General Court for not having based its assessment on a comparative study of, on the one hand, the behaviour that a prudent private operator without privileges would have adopted in similar circumstances and, on the other hand, the behaviour of the French State in the present case, with its prerogatives as public authority.

Third, the appellant submits that the judgment under appeal fails to apply the principle of equal treatment between State enterprises and private undertakings, thus allowing for more favourable tax treatment of the State, including undertakings in which the State is not the only shareholder.

Finally, according to the Commission, the General Court disregarded the rules governing the apportioning of the burden of proof as regards the applicability of the principle of the prudent private investor in a market economy, while taking into account facts that occurred after the date on which the annulled decision was adopted.

Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 9 March 2010 — Merck & Co Inc v Deutsches Patent- und Markenamt

(Case C-125/10)

(2010/C 161/24)

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: Merck & Co Inc

Defendant: Deutsches Patent- und Markenamt

Question referred

Can a supplementary protection certificate for medicinal products (1) be granted if the period of time between the filing of the application for the basic patent and the date of first authorisation for marketing in the Community is shorter than five years?

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(1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (codified version); OJ 2009 L 152, p. 1

Action brought on 15 March 2010 — European Commission v Kingdom of Belgium

(Case C-134/10)

(2010/C 161/25)

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Nijenhuis and C. Vrignon, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

—

declare that, by failing to transpose correctly Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive and Article 56 of the Treaty on the Functioning of the European Union;

—	order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The European Commission raises three complaints in support of its action, which alleges infringement of the principle of proportionality by the contested national legislation, in particular with regard to the procedure and criteria leading to the award of must-carry status to radio and television networks.

First, it alleges that the defendant has failed to establish in a clear and foreseeable manner the objectives of general interest which justify the award of must-carry status. Broadcasters are therefore not in a position to ascertain in advance the nature and the scope of the conditions to be satisfied and the public service obligations it is required to observe.

Second, the Commission complains of the lack of transparency with regard to the award procedure, of the increased discretion conferred on the authorities in that the national legislation seems to impose on the bodies concerned the obligation to transmit all of the channels which it transmits and not only those channels pursuing the required objectives of general interest, as well as the discriminatory effect of the requirement as to establishment of those bodies in the national territory.

Third, the applicant alleges that the scope of Article 31 of the ‘Universal Service Directive’ was ignored with regard to making the broadcasting subject to the existence of a significant number of end-users of broadcast networks.

---

(1)  OJ 2002 L 108, p. 51.

Reference for a preliminary ruling from the Curte de Apel Târgu-Mureș (Romania) lodged on 15 March 2010 — Daniel Ionel Obreja v Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Fondului pentru Mediu

(Case C-136/10)

(2010/C 161/26)

Language of the case: Romanian

Referring court

Curte de Apel Târgu-Mureș

Parties to the main proceedings

Applicant: Daniel Ionel Obreja

Defendant: Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Fondului pentru Mediu

Questions referred

1.

Is the introduction of a pollution tax for the period from 1 July 2008 to 15 December 2008 under the Romanian legislation in question (Emergency Order No 50/2008) consistent with the principles of customs union and the prohibition on double taxation established in Articles 23 TEC, 25 TEC and 90 TEC, in so far as those Treaty provisions permit the introduction of a pollution tax for the purpose set out by the Romanian legislature in the preamble to Emergency Order No 50/2008, a purpose which is also provided for in Article 174 TEC et seq, namely to ensure the protection of the environment through the implementation of programmes and projects intended to improve air quality and to attain the limit values laid down by the relevant Community legislation? In other words, more specifically: where a pollution tax is introduced in a Member State of the European Union which is levied on the first registration in that State of new or second-hand motor vehicles imported from another Member State, can the provisions in Article 174 TEC et seq be regarded as justifying the disapplication of Articles 23 TEC, 25 TEC and 90 TEC?

2.

Where such a vehicle has been subject in a Member State to a similar tax, that is a pollution tax (having the same conceptual content and the same scope, namely relating to respect for the environment in accordance with the principles and objectives laid down in Articles 174 TEC et seq), upon first registration in another Member State, is it possible to introduce such a pollution tax with the same objectives as those laid down in Articles 174 TEC et seq, even if the vehicle has already previously been subject to a pollution tax in another Member State?

3.

Finally, where, in the contrary case, such a vehicle has not been subject to a pollution tax in another Member State (either because such a tax does not exist or for other reasons) but, upon subsequent registration in a different Member State, such as Romania, where a tax of that kind is levied, the pollution tax is levied upon first registration of the vehicle in that State, can the principles of customs union and [the rules prohibiting] indirect domestic protection measures laid down in Articles 23 TEC, 25 TEC and 90 TEC be regarded as having been infringed?

Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 March 2010 — Greenstar-Kanzi Europe NV v Jean Hustin and Jo Goossens

(Case C-140/10)

(2010/C 161/27)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicants	:	Greenstar-Kanzi Europe NV
Defendants	:	Jean Hustin   Jo Goossens

Questions referred

1.

Should Article 94 of Council Regulation (EC) No 2100/94 (1) of 27 July 1994 on Community plant variety rights, as amended by Council Regulation (EC) No 873/2004 (2) of 29 April 2004, read in conjunction with Articles 11(1), 13(1) to 13(3), 16, 27 and 104 of the aforementioned Regulation (EC) No 2100/94, be interpreted in such a way that the holder or the person enjoying the right of exploitation may bring an action for infringement against anyone who effects acts in respect of material which was sold or disposed of to him by a licensee of the right of exploitation if the limitations in the licensing contract between the licensee and the holder of the Community plant variety right that were stipulated to apply in the event of the sale of that material were not respected?

2.	If so, is it of significance for the assessment of the infringement that the person effecting the aforementioned act is aware or is deemed to be aware of the limitations thus imposed in the said licensing contract?

---

(1)  OJ 1994 L 227, p. 1.

(2)  OJ 2004 L 162, p. 38.

Action brought on 16 March 2010 — European Commission v Kingdom of the Netherlands

(Case C-141/10)

(2010/C 161/28)

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: V. Kreuschitz and M. van Beek, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

—

Declare that, by failing to adopt all the measures necessary to set aside the provision under which certain social security benefits are not paid to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 13(2)(a) and 3(1) of Regulation (EEC) No 1408/71 (1) and Articles 45 TFEU to 48 TFEU;

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

Pleas in law and main arguments

1.

The European Parliament has recently repeatedly requested information from the Commission about Portuguese nationals who work on drilling platforms on the Netherlands’ continental shelf and live in Portugal but do not enjoy the same conditions of employment or social security as employed persons living in the Netherlands.

2.

Consequently, in accordance with Article 226 EC (now Article 258 TFEU), the Commission sent the Netherlands a letter of formal notice and a reasoned opinion in which it stated that, in its view, Netherlands social security legislation should also apply to nationals of other Member States of the European Union who work on drilling platforms in the Netherlands. The refusal of the Netherlands authorities to award social security benefits to such persons is incompatible with Title II of Regulation (EEC) No 1408/71, in particular with Articles 13(2)(a) and 3(1) thereof, and with Articles 39 EC to 42 EC (now Articles 45 TFEU to 48 TFEU).

3.	The Netherlands has, to date, failed to adopt all the measures necessary to set aside the provision of national legislation under which certain social security benefits are not paid to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands.

4.

On those grounds, the Commission has to conclude that, by refusing to pay certain social security benefits to nationals of other Member States of the European Union who are employed on drilling platforms in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 13(2)(a) and 3(1) of Regulation (EEC) No 1408/71 and Articles 45 TFEU to 48 TFEU.

---

(1)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2).

Reference for a preliminary ruling from the Hof van Beroep te Brussel, lodged on 29 March 2010 — Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie

(Case C-148/10)

(2010/C 161/29)

Language of the case: Dutch

Referring court

Hof van Beroep te Brussel

Parties to the main proceedings

Appellant: Express Line NV

Respondent: Belgisch Instituut voor Postdiensten en Telecommunicatie

Questions referred

1.

Must the provisions of Directive 97/67/EC (1) of [15] December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2002/39/EC, (2) and in particular, but not exclusively, Article 19 thereof, in view of the amendments introduced by Directive 2008/6/EC (3) and which must be transposed into national law by 31 December 2010 at the latest, be understood and interpreted as precluding Member States from imposing a mandatory external complaints scheme on providers of non-universal postal services on the ground that: (i) as regards the applicable complaints procedures for the protection of the users of postal services, the Directive provides for full harmonisation; or on the ground that: (ii) that obligation was imposed by Directive 2002/39/EC only on the universal service provider and, since Directive 2008/6/EC, on all universal service providers, even though, according to the wording of the [third] subparagraph of Article 19(1) of [Directive 97/67/EC, as amended by] Directive 2008/6/EC, Member States may only encourage, but may not impose, the development of independent schemes for the resolution of disputes between the providers of postal services, other than universal postal services, and end-users?

2.

If the answer to the first question is that the Postal Directive does not, as such, preclude Member States from imposing on the providers of non-universal postal services a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, must the principles relating to the free movement of services (Article 49 et seq. EC; now Article 56 et seq. TFEU) be interpreted in such a way that restrictions on the free movement of services, introduced by a Member State on grounds of compelling reasons in the general interest relating to consumer protection, whereby the providers of non-universal postal services are made subject to a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, can be considered compatible with the TFEU even if, in the application of the complaints scheme concerned, no distinction is made between the complaints of consumers and those of other end-users, although the vast majority of the users of those services (in the present case, express and courier services) are professional users?

---

(1)  Directive of the European Parliament and of the Council on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).

(2)  Directive of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21).

(3)  Directive of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).

Reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium) lodged on 29 March 2010 — Bureau d’Intervention et de Restitution Belge (BIRB) v Beneo Orafti SA

(Case C-150/10)

(2010/C 161/30)

Language of the case: French

Referring court

Tribunal de première instance de Bruxelles

Parties to the main proceedings

Applicant: Bureau d’Intervention et de Restitution Belge (BIRB)

Defendant: Beneo Orafti SA

Questions referred

1.

Are the transitional quotas allocated to an undertaking producing sugar on the basis of Article 9 of Commission Regulation No 493/2006 (1) exempt from the temporary restructuring scheme established by Council Regulation No 320/2006 (2) and by Commission Regulation No 968/2006 (3) laying down detailed rules for implementation, given that: (a) those quotas are not subject to payment of the temporary amount for restructuring; (b) they do not give rise to restructuring aid; and (c) they are not quotas within the meaning of Council Regulation No 320/2006, as defined by Article 2(6) of that Regulation?

2.

Even if the reply to Question 1 is in the negative, are transitional quotas quotas in their own right, independent of the normal basic quotas, given that: (a) transitional quotas are allocated on the basis of Article 9 of Commission Regulation No 493/2006 and not on the basis of Article 7 of Council Regulation No 318/2006 (4); (b) the criteria for the allocation of transitional quotas differ from the criteria for the allocation of normal basic quotas; and (c) the transitional quotas are transitional measures intended to facilitate the transition from the former scheme for the sugar market to the new scheme for the Community sugar market and, as a consequence, apply in principle only during the 2006/2007 marketing year?

3.

If the reply to either or both of Questions 1 and 2 is in the affirmative, does an undertaking producing sugar which has applied for restructuring aid for the marketing year 2006/2007 in accordance with Article 3 of Council Regulation No 320/2006 have a right to a transitional quota allocated for the marketing year 2006/2007 in accordance with Article 9 of Regulation No 493/2006?

4.

If the reply to Question 3 is in the negative, can the penalty applied consist in recovery of part of the restructuring aid granted, together with recovery of the transitional quota? How must the amount of aid to be recovered under Article 26(1) of Commission Regulation No 968/2006 and the penalty provided for under Article 27 thereof be calculated where an undertaking producing sugar has received restructuring aid (for the 2006/2007 marketing year) and has used its transitional quota (for which no restructuring aid was granted)? Must all or some of the following factors be taken into account in the calculation of that amount and of that penalty: (a) the costs born by the undertaking producing sugar in question for the dismantling of its production facilities? (b) the losses incurred by the undertaking producing sugar in question as a result of giving up its normal basic quota? (c) the fact that the transitional quota is a one-off, transitional measure which permits production for the 2006/2007 marketing year only and does not apply to other marketing years (save in the case of the transitional sugar quota)? (d) is a calculation of the amount to be recovered which does not take into account the factors referred to in points (a) to (c) inconsistent with the principle of proportionality?

5.

Notwithstanding the preceding questions, when do the commitments entered into on the basis of a restructuring plan take effect, that is to say, when do they become binding on the claimant? (a) at the beginning of the marketing year for which the claimant submits its application for restructuring aid? (b) on the submission of the application to the competent national authority? (c) on notification by the competent national authority that the application is regarded as complete? (d) on notification by the competent national authority that the application is regarded as admissible in respect of restructuring aid? (e) on notification by the competent national authority of its decision to grant restructuring aid?

6.

If the reply to either or both of Questions 1 and 2 is in the affirmative, is an undertaking producing sugar which has been allocated a transitional quota for the marketing year 2006/2007 authorised to use that quota during the marketing year even though the undertaking has been granted restructuring aid by reference to its normal basic quota, beginning with the marketing year 2006/2007?

7.

If the reply to Questions 1, 2 and 6 is in the negative, is a competent national authority of a Member State authorised, in the event of failure to fulfil the commitments entered into on the basis of the restructuring plan, to combine recovery of the restructuring aid and the penalty under Articles 26 and 27 of Commission Regulation No 968/2006 with the imposition of a levy on surpluses in accordance with Article 4 of Commission Regulation No 967/2006 (5) or is the combination of penalties in that way inconsistent with the principle non bis in idem and the principles of proportionality and non-discrimination?

---

(1)  Commission Regulation (EC) No 493/2006 of 27 March 2006 laying down transitional measures within the framework of the reform of the common organisation of the markets in the sugar sector, and amending Regulations (EC) No 1265/2001 and (EC) No 314/2002 (OJ 2006, L 89, p. 11).

(2)  Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42).

(3)  Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (OJ 2006 L 176, p. 32).

(4)  Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1).

(5)  Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (OJ 2006, L 176, p. 22).

Reference for a preliminary ruling from the Arbeidshof te Antwerpen — Afdeling Hasselt (Belgium), lodged on 31 March 2010 — Dai Cugini NV v Rijksdienst voor Sociale Zekerheid

(Case C-151/10)

(2010/C 161/31)

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen — Afdeling Hasselt

Parties to the main proceedings

Appellant: Dai Cugini NV

Respondent: Rijksdienst voor Sociale Zekerheid

Questions referred

1.

Are national provisions, specifically the presumption in Article 22b of the Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for workers (the RSZ Law) and Article 171 of the Programme Law of 22 December 1989, as successively amended, compatible with the provisions of Community law and with Council Directive 97/81/EC (1) of 15 December 1997, in particular Clause 5(1)(a) of the Annex thereto, which states that, in the context of the principle of non-discrimination between part-time and full-time workers, the Member States, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them?

2.

Are the national provisions requiring employers to compile and maintain numerous social-security documents under Articles 157 to 169 of the Programme Law of 22 December 1989, and under which non-compliance with those provisions is punishable under criminal law, or may result in the imposition of administrative fines and civil-law penalties, compatible with the provisions of Community law and with Council Directive 97/81/EC of 15 December 1997, in particular Clause 5(1)(a) of the Annex thereto, which states that, in the context of the principle of non-discrimination between part-time and full-time workers, the Member States, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them?

---

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

Reference for a preliminary ruling from the Supreme Court of the United Kingdom made on 2 April 2010 — Williams and others v British Airways plc

(Case C-155/10)

(2010/C 161/32)

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Williams and others

Defendant: British Airways plc

Questions referred

(i)

Under (a) articles 7 of Council Directives 93/104/EC (1) and 2003/88/EC (2) and (b) clause 3 of the European Agreement annexed to the Council Directive 2000/79/EC (3): (1) to what, if any, extent does European law define or lay down any requirements as to the nature and/or level of the payments required to be made in respect of periods of paid annual leave; and (2) to what, if any, extent may Member States determine how such payments are to be calculated?

(ii)

In particular, is it sufficient that, under national law and/or practice and/or under the collective agreements and/or contractual arrangements negotiated between employers and workers, the payment made enables and encourages the worker to take and to enjoy, in the fullest sense of these words, his or her annual leave; and does not involve any sensible risk that the worker will not do so?

(iii)

Or is it required that the pay should either (a) correspond precisely with or (b) be broadly comparable to the worker's ‘normal’ pay?

Further, in the event of an affirmative answer to question (iii)(a) or (b):

(iv)	Is the relevant measure or comparison (a) pay that the worker would have earned during the particular leave period if he or she had been working, instead of on leave, or (b) pay which he or she was earning during some other, and if so what, period when he or she was working?

(v)

How should ‘normal’ or ‘comparable’ pay be assessed in circumstances where (a) a worker's remuneration while working is supplemented if and to the extent that he or she engages in a particular activity, (b) where there is an annual or other limit on the extent to which, or time during which, the worker may engage in that activity, and that limit has been already exceeded or almost exceeded at the time(s) when annual leave is taken, so that the worker would not in fact have been permitted to engage in that activity had he been working, instead of on leave?

---

(1)  Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, OJ L 307, p. 18

(2)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, OJ L 299, p. 9

(3)  Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (Text with EEA relevance), OJ L 302

Reference for a preliminary ruling from the Raad Van State (Netherlands), lodged on 6 April 2010 — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid

(Case C-158/10)

(2010/C 161/33)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Johan van Leendert Holding BV

Respondent: Minister van Sociale Zaken en Werkgelegenheid

Question referred

Must Articles 56 and 57 of the Treaty on the Functioning of the European Union be interpreted as precluding national rules, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which an employment permit is required for the posting of workers as referred to in Article 1(3)(b) of Directive 96/71/EC (1)?

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(1)  Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) lodged on 2 April 2010 — Gerhard Fuchs v Land Hessen

(Case C-159/10)

(2010/C 161/34)

Language of the case: German

Referring court

Verwaltungsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Gerhard Fuchs

Defendant: Land Hessen

Questions referred

1.

Are the rules laid down in the Hessisches Beamtengesetz (Civil Service Law of the Land of Hessen) on what is in principle the compulsory retirement age for civil servants based on an aim in the public interest in accordance with standards of Union law? The following main questions arise in this respect:   What specific requirements in Union law should such an aim prescribed in the public interest satisfy? What additional issues relating to the clarification of the facts of the case should the referring court consider?   Does an interest in saving budgetary resources and labour costs, in the present context by avoiding the recruitment of new staff and so reducing expenditure on personnel, represent a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC? (1)   Can an employer’s aim of enjoying a degree of planning certainty as regards the retirement of civil servants be recognised as a legitimate aim in the public interest, even if every employer governed by the Hessiches Beamtengesetz or the Beamtenstatusgesetz (Law on the Status of Civil Servants) may develop and implement staff management ideas of his own?   Can an interest in a ‘favourable age stratification’ or ‘favourable age structure’ be recognised as an aim in the public interest, despite the absence of general standards or statutory rules on what constitutes a correct age stratification or age structure?   Can an interest in creating opportunities for the promotion of civil servants already in place be regarded as a legitimate aim in the public interest within the meaning of Article 6(1) of Directive 2000/78/EC?   Does the adoption of rules on retirement ages to preclude individual legal disputes with older employees over their continued fitness for service constitute the pursuit of a legitimate aim in the public interest?   Does the reference to the public interest within the meaning of Article 6(1) of Directive 2000/78/EC presuppose a labour market policy concept extending beyond individual employers in the area of employment, and if so, how uniform and binding must it be?   Is it in fact possible for individual employers to pursue aims in the public interest for groups of employees, limited here to civil servants governed by the Hessisches Beamtengesetz, with retirement age rules of such limited scope?   Under what conditions can the aim, which can be pursued by individual employers, but is not mandatory, of occupying posts vacated by retired employees with new recruits, where necessary after existing employees have been promoted, be regarded as being in the public interest within the meaning of Article 6(1) of Directive 2000/78/EC? Must the reference to the public interest be backed not only by general claims that the rules serve that purpose, but also by statistics or other findings from which it can be inferred that such an aim is sufficiently serious and can actually be achieved?

2.

What specific requirements should be satisfied by the reasonableness and suitability of a retirement age arrangement within the meaning of the rules laid down in the Hessisches Beamtengesetz? Are more thorough investigations needed to determine the ratio of the — probable — number of civil servants remaining in service voluntarily after retirement age to the number who wish to receive a full pension on reaching retirement age, if not earlier, and therefore certainly want to leave the service? Would it not be appropriate in this respect to give voluntary retirement preference over compulsory retirement, provided that arrangements are made for pensions to be reduced where they are taken before the set retirement age is reached so as to preclude unreasonable pension budget spending and associated labour costs (voluntary departure rather than compulsion as the more appropriate and, in effect, hardly less suitable arrangement)? Can it be deemed reasonable and necessary to assume it to be irrefutable that all civil servants cease to be fit for service on reaching a given higher age, such as 65 years in this case, and so automatically to terminate their employment as civil servants at that age? Is it reasonable for the possibility to remain employed in the civil service at least until the age of 68 years to be entirely dependent on the employer having special interests, but for employment in the civil service to be terminated with no legal possibility of securing reappointment where no such interests exist? Does a retirement age arrangement which leads to compulsory retirement, rather than being confined to specifying the conditions for entitlement to a full pension, as permitted under Article 6(2) of Directive 2000/78/EC, result in an unreasonable devaluation of the interests of older people relative to the fundamentally no more valuable interests of younger people? If the aim of facilitating recruitment and/or promotion is deemed to be legitimate, what more precise requirements must actually be satisfied to demonstrate the extent to which such opportunities are actually seized by each employer taking advantage of the retirement age arrangement or by all employers, in and outside the general labour market, to whom the statutory arrangement applies? In view of the gaps already to be seen in the labour market owing to demographic trends and of the impending need for skilled staff of all kinds, including staff for the public service of the Federal German and Land governments, is it reasonable and necessary to force civil servants able and willing to continue working to retire from the civil service at a time when there will soon be a major demand for personnel which the labour market will hardly be able to meet? Will it possibly be necessary in the future to collect sectoral labour market data?

3.

What requirements need to be met as regards the coherence of Hessen’s and possibly Federal German legislation on retirement ages? Can the relationship between Paragraph 50(1) und Paragraph 50(3) of the Hessisches Beamtengesetz be regarded as consistent if the possibility in principle of remaining in employment beyond retirement age depends entirely on the employer’s interests? Should Paragraph 50(3) of the Hessisches Beamtengesetz possibly be interpreted to mean, in compliance with the Directive, that, to preclude unreasonable discrimination on the grounds of age, employment must always continue unless service factors prevent this? What requirements should then be satisfied to prove the existence of any such factors? Must it be assumed in this respect that the interests of the service require continued employment if only because unjustifiable discrimination on the grounds of age would otherwise occur? How might advantage be taken of such an interpretation of Paragraph 50(3) of the Hessisches Beamtengesetz for a continuation or resumption of the applicant’s employment as a civil servant, even though that employment has meanwhile been terminated? Should, in that case, Paragraph 50(1) of the Hessisches Beamtengesetz remain inapplicable at least until the age of 68 years? Is it reasonable and necessary, on the one hand, to impede the taking of voluntary retirement at the age of 60 or 63 years, with a permanent reduction in pension, and, on the other hand, to rule out the voluntary continuation of employment after the age of 65 years unless the employer has, by way of exception, a special interest in its continuation? Do the rules on retirement ages laid down in Paragraph 50(1) of the Hessisches Beamtengesetz cease to be reasonable and necessary as a result of the more favourable rules on part-time work on the grounds of age on the one hand and fixed-term civil servants on the other? What significance for coherence can be attributed to the various rules laid down in employment (public and private sector) and social insurance law which, first, are seeking permanently to raise the age at which a full pension can be drawn, second, prohibit the termination of employment on the grounds that the age specified for the standard retirement pension has been reached and, third, make it compulsory for employment to terminate when that precise age is reached? Is it relevant to coherence that the gradual raising of retirement ages in the social insurance and civil service law relating to the Federal German authorities and some Länder primarily serves the interests of employees in delaying as long as possible the need to meet the more stringent requirements for a full retirement pension? Are these questions insignificant because retirement ages have not yet been raised for civil servants governed by the Hessisches Beamtengesetz, although this is due to become effective in the near future in the case of employees in employment relationships?

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

Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) lodged on 2 April 2010 — Peter Köhler v Land Hessen

(Case C-160/10)

(2010/C 161/35)

Language of the case: German

Referring court

Verwaltungsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Peter Köhler

Defendant: Land Hessen

Questions referred

1.

Are the rules laid down in the Hessisches Beamtengesetz (Civil Service Law of the Land of Hessen) on what is in principle the compulsory retirement age for civil servants based on an aim in the public interest in accordance with standards of Union law? The following main questions arise in this respect:   What specific requirements in Union law should such an aim prescribed in the public interest satisfy? What additional issues relating to the clarification of the facts of the case should the referring court consider?   Does an interest in saving budgetary resources and labour costs, in the present context by avoiding the recruitment of new staff and so reducing expenditure on personnel, represent a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC?   Can an employer’s aim of enjoying a degree of planning certainty as regards the retirement of civil servants be recognised as a legitimate aim in the public interest, even if every employer governed by the Hessiches Beamtengesetz or the Beamtenstatusgesetz (Law on the Status of Civil Servants) may develop and implement staff management ideas of his own?   Can an interest in a ‘favourable age stratification’ or ‘favourable age structure’ be recognised as an aim in the public interest, despite the absence of general standards or statutory rules on what constitutes a correct age stratification or age structure?   Can an interest in creating opportunities for the promotion of civil servants already in place be regarded as a legitimate aim in the public interest within the meaning of Article 6(1) of Directive 2000/78/EC?   Does the adoption of rules on retirement ages to preclude individual legal disputes with older employees over their continued fitness for service constitute the pursuit of a legitimate aim in the public interest?   Does the reference to the public interest within the meaning of Article 6(1) of Directive 2000/78/EC presuppose a labour market policy concept extending beyond individual employers in the area of employment, and if so, how uniform and binding must it be?   Is it in fact possible for individual employers to pursue aims in the public interest for groups of employees, limited here to civil servants governed by the Hessisches Beamtengesetz, with retirement age rules of such limited scope?   Under what conditions can the aim, which can be pursued by individual employers, but is not mandatory, of occupying posts vacated by retired employees with new recruits, where necessary after existing employees have been promoted, be regarded as being in the public interest within the meaning of Article 6(1) of Directive 2000/78/EC? Must the reference to the public interest be backed not only by general claims that the rules serve that purpose, but also by statistics or other findings from which it can be inferred that such an aim is sufficiently serious and can actually be achieved?

2.

What specific requirements should be satisfied by the reasonableness and suitability of a retirement age arrangement within the meaning of the rules laid down in the Hessisches Beamtengesetz? Are more thorough investigations needed to determine the ratio of the — probable — number of civil servants remaining in service voluntarily after retirement age to the number who wish to receive a full pension on reaching retirement age, if not earlier, and therefore certainly want to leave the service? Would it not be appropriate in this respect to give voluntary retirement preference over compulsory retirement, provided that arrangements are made for pensions to be reduced where they are taken before the set retirement age is reached so as to preclude unreasonable pension budget spending and associated labour costs (voluntary departure rather than compulsion as the more appropriate and, in effect, hardly less suitable arrangement)? Can it be deemed reasonable and necessary to assume it to be irrefutable that all civil servants cease to be fit for service on reaching a given higher age, such as 65 years in this case, and so automatically to terminate their employment as civil servants at that age? Is it reasonable for the possibility to remain employed in the civil service at least until the age of 68 years to be entirely dependent on the employer having special interests, but for employment in the civil service to be terminated with no legal possibility of securing reappointment where no such interests exist? Does a retirement age arrangement which leads to compulsory retirement, rather than being confined to specifying the conditions for entitlement to a full pension, as permitted under Article 6(2) of Directive 2000/78/EC, result in an unreasonable devaluation of the interests of older people relative to the fundamentally no more valuable interests of younger people? If the aim of facilitating recruitment and/or promotion is deemed to be legitimate, what more precise requirements must actually be satisfied to demonstrate the extent to which such opportunities are actually seized by each employer taking advantage of the retirement age arrangement or by all employers, in and outside the general labour market, to whom the statutory arrangement applies? In view of the gaps already to be seen in the labour market owing to demographic trends and of the impending need for skilled staff of all kinds, including staff for the public service of the Federal German and Land governments, is it reasonable and necessary to force civil servants able and willing to continue working to retire from the civil service at a time when there will soon be a major demand for personnel which the labour market will hardly be able to meet? Will it possibly be necessary in the future to collect sectoral labour market data?

3.

What requirements need to be met as regards the coherence of Hessen’s and possibly Federal German legislation on retirement ages? Can the relationship between Paragraph 50(1) und Paragraph 50(3) of the Hessisches Beamtengesetz be regarded as consistent if the possibility in principle of remaining in employment beyond retirement age depends entirely on the employer’s interests? Should Paragraph 50(3) of the Hessisches Beamtengesetz possibly be interpreted to mean, in compliance with the Directive, that, to preclude unreasonable discrimination on the grounds of age, employment must always continue unless service factors prevent this? What requirements should then be satisfied to prove the existence of any such factors? Must it be assumed in this respect that the interests of the service require continued employment if only because unjustifiable discrimination on the grounds of age would otherwise occur? How might advantage be taken of such an interpretation of Paragraph 50(3) of the Hessisches Beamtengesetz for a continuation or resumption of the applicant’s employment as a civil servant, even though that employment has meanwhile been terminated? Should, in that case, Paragraph 50(1) of the Hessisches Beamtengesetz remain inapplicable at least until the age of 68 years? Is it reasonable and necessary, on the one hand, to impede the taking of voluntary retirement at the age of 60 or 63 years, with a permanent reduction in pension, and, on the other hand, to rule out the voluntary continuation of employment after the age of 65 years unless the employer has, by way of exception, a special interest in its continuation? Do the rules on retirement ages laid down in Paragraph 50(1) of the Hessisches Beamtengesetz cease to be reasonable and necessary as a result of the more favourable rules on part-time work on the grounds of age on the one hand and fixed-term civil servants on the other? What significance for coherence can be attributed to the various rules laid down in employment (public and private sector) and social insurance law which, first, are seeking permanently to raise the age at which a full pension can be drawn, second, prohibit the termination of employment on the grounds that the age specified for the standard retirement pension has been reached and, third, make it compulsory for employment to terminate when that precise age is reached? Is it relevant to coherence that the gradual raising of retirement ages in the social insurance and civil service law relating to the Federal German authorities and some Länder primarily serves the interests of employees in delaying as long as possible the need to meet the more stringent requirements for a full retirement pension? Are these questions insignificant because retirement ages have not yet been raised for civil servants governed by the Hessisches Beamtengesetz, although this is due to become effective in the near future in the case of employees in employment relationships?

Reference for a preliminary ruling from the High Court of Ireland made on 7 April 2010 — Phonographic Performance (Ireland) Ltd v Ireland and the Attorney General

(Case C-162/10)

(2010/C 161/36)

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Phonographic Performance (Ireland) Ltd

Defendant: Ireland and the Attorney General

Questions referred

(i)

Is a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Codified Directive 2006/115/EC (1) of the European Parliament and the Council of 12th December 2006?

(ii)	If the answer to paragraph (i) is in the affirmative, does Article 8(2) of Directive 2006/115/EC oblige Member States to provide a right to payment of equitable remuneration from the hotel operator in addition to equitable remuneration from the broadcaster for the playing of the phonogram?

(iii)

If the answer to paragraph (i) is in the affirmative, does Article 10 of Directive 2006/115/EC permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a)?

(iv)

Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a ‘user’ making a ‘communication to the public’ of the phonograms within the meaning of Article 8(2) of Directive 2006/115/EC?

(v)

If the answer to paragraph (iv) is in the affirmative, does Article 10 of Directive 2006/115/EC permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115/EC?

---

(1)  Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version)

OJ L 376, p. 28

Reference for a preliminary ruling from the Tribunale di Isernia (Italy) lodged on 2 April 2010 — Criminal proceedings against Aldo Patriciello

(Case C-163/10)

(2010/C 161/37)

Language of the case: Italian

Referring court

Tribunale di Isernia

Party to the main proceedings

Aldo Patriciello

Question referred

Do the facts construed in abstracto as a criminal offence committed by Aldo Patriciello — a Member of the European Parliament, described in the indictment and in favour of whom the European Parliament adopted a decision on 5 May 2009 to support a defence of immunity — which is categorised as slander under Article 368 of the Penal Code correspond to the expression of an opinion in the performance of parliamentary duties for the purposes of Article 9 of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 2 April 2010 — Emanuele Ferazzoli v Ministero dell’Interno

(Case C-164/10)

(2010/C 161/38)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Emanuele Ferazzoli

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Cosmia Barberio v Ministero dell’Interno

(Case C-165/10)

(2010/C 161/39)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Cosmia Barberio

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Patrizia Banchetti v Ministero dell’Interno

(Case C-166/10)

(2010/C 161/40)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Patrizia Banchetti

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Andrea Palomba v Ministero dell’Interno

(Case C-167/10)

(2010/C 161/41)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Andrea Palomba

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Michele Fanelli v Ministero dell’Interno

(Case C-168/10)

(2010/C 161/42)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Michele Fanelli

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Sandra Castronovo v Ministero dell’Interno

(Case C-169/10)

(2010/C 161/43)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Sandra Castronovo

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Mirko De Filippo v Ministero dell'Interno

(Case C-170/10)

(2010/C 161/44)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Mirko De Filippo

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Andrea Sacripanti v Ministero dell’Interno

(Case C-171/10)

(2010/C 161/45)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Andrea Sacripanti

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Emiliano Orru' v Ministero dell’Interno

(Case C-172/10)

(2010/C 161/46)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Emiliano Orru’

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Fabrizio Cariulo v Ministero dell’Interno

(Case C-173/10)

(2010/C 161/47)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Fabrizio Cariulo

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Paola Tonachella v Ministero dell’Interno

(Case C-174/10)

(2010/C 161/48)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Paola Tonachella

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Pietro Calogero v Ministero dell’Interno

(Case C-175/10)

(2010/C 161/49)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Pietro Calogero

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Danilo Spina v Ministero dell’Interno

(Case C-176/10)

(2010/C 161/50)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Danilo Spina

Defendant: Ministero dell’Interno

Question referred

Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

(a)	tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

(b)	in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

(c)	provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?

Reference for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania) lodged on 17 March 2010 — Ministerul Finanțelor și Economiei, Direcția Generală a Finanțelor Publice Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL

(Case C-178/10)

(2010/C 161/51)

Language of the case: Romanian

Referring court

Curtea de Apel Târgu-Mureș

Parties to the main proceedings

Applicant: Ministerul Finanțelor și Economiei, Direcția Generală a Finanțelor Publice Mureș, Administrația Finanțelor Publice Târgu-Mureș

Defendant: SC Darmi SRL

Questions referred

1.

Is the introduction of a pollution tax for the period from 1 July 2008 to 15 December 2008 under the Romanian legislation in question (Emergency Order No 50/2008) consistent with the principles of customs union and the prohibition on double taxation established in Articles 23 TEC, 25 TEC and 90 TEC, in so far as those Treaty provisions permit the introduction of a pollution tax for the purpose set out by the Romanian legislature in the preamble to Emergency Order No 50/2008, a purpose which is also provided for in Article 174 TEC et seq, namely to ensure the protection of the environment through the implementation of programmes and projects intended to improve air quality and to attain the limit values laid down by the relevant Community legislation? In other words, more specifically: where a pollution tax is introduced in a Member State of the European Union which is levied on the first registration in that State of new or second hand motor vehicles imported from another Member State, can the provisions in Article 174 TEC et seq be regarded as justifying the disapplication of Articles 23 TEC, 25 TEC and 90 TEC?

2.

Where such a vehicle has been subject in a Member State to a similar tax, that is a pollution tax (having the same conceptual content and the same scope, namely relating to respect for the environment in accordance with the principles and objectives laid down in Articles 174 TEC et seq), is it possible to introduce such a pollution tax with the same objectives as those laid down in Articles 174 TEC et seq upon first registration in another Member State, even though the vehicle has already previously been subject to a pollution tax in another Member State?

3.

Finally, where, in the contrary case, such a vehicle has not been subject to a pollution tax in another Member State (either because such a tax does not exist or for other reasons) but, upon subsequent registration in a different Member State, such as Romania, where a tax of that kind is levied, the pollution tax is levied upon first registration of the vehicle in that State, can the principles of customs union and [the rules prohibiting] indirect domestic protection measures laid down in Articles 23 TEC, 25 TEC and 90 TEC be regarded as having been infringed?

Action brought on 9 April 2010 — European Commission v France

(Case C-179/10)

(2010/C 161/52)

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Gippini Fournier and K. Walkerová, acting as Agents)

Defendant: French Republic

Form of order sought

—

declare that, by failing to implement Commission Decision 2005/238/EC of 14 July 2004 concerning aid granted to the fisheries and aquaculture sector in Corsica from 1986 to 1999 (1) by recovering from the beneficiaries thereof aid declared unlawful and incompatible with the common market by Article 1 of that decision and by failing to inform the Commission of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 and 5 of that decision;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

Pursuant to Article 4 of Commission Decision 2005/238/EC, France is required to inform the Commission, within two months of notification of that decision, of the measures taken to comply with it. In the present case, more than 5 years after the receipt of the Decision by the French authorities and despite seven reminders, the aid granted has not yet been recovered from the beneficiary firms and no effective measures have been taken to such effect. The defendant, furthermore, has not argued that it is absolutely impossible to implement that Decision.

---

(1)  Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49).

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 16 April 2010 — Criminal proceedings against Aziz Melki

(Case C-188/10)

(2010/C 161/53)

Language of the case: French

Referring court

Cour de Cassation

Party/parties to the main proceedings

Aziz Melki

Questions referred

1.

Does Article 267 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 23-2, paragraph 2, and Article 23-5, paragraph 2, of Order No 58-1067 of 7 November 1958, created by Organic Law No 2009-1523 of 10 December 2009, in so far as that article requires courts to rule as a priority on the submission to the Conseil constitutionnel of the question of constitutionality before them, inasmuch as that question concerns the failure of domestic legislation, because of its infringement of provisions of European Union law, to comply with the Constitution ?

2.

Does Article 67 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 78-2, paragraph 4, of the Code of Criminal Procedure, which provides that ‘in a zone between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line traced 20 kilometres inside that border, and in the zones accessible to the public of ports, airports and railway or bus stations open to international traffic and designated by order, the identity of any person may also be controlled, in accordance with the procedure provided for in paragraph 1, in order to check that the obligations laid down by the law to hold, carry and present papers and documents are observed. Where that control takes place on board an international train, it may be carried out on the part of the journey between the border and the first stop situated beyond the twenty kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next fifty kilometres. Those lines and those stops are designated by Ministerial order. Where there is a section of motorway starting in the zone referred to in the first sentence of this paragraph and the first motorway toll is beyond the twenty kilometre line, the control may also take place up to that first toll, on parking areas and on the site of that toll and the adjoining parking areas. The tolls concerned by that provision shall be designated by order’?

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 16 April 2010 — Criminal proceedings against Sélim Abdeli

(Case C-189/10)

(2010/C 161/54)

Language of the case: French

Referring court

Cour de Cassation

Party to the main proceedings

Sélim Abdeli

Questions referred

1.

Does Article 267 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 23-2, paragraph 2, and Article 23-5, paragraph 2, of Order No 58-1067 of 7 November 1958, created by Organic Law No 2009-1523 of 10 December 2009, in so far as those provisions require courts to rule as a matter of priority on the submission to the Constitutional Council of the question of constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to European Union law, is in breach of the Constitution?

2.

Does Article 67 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 78-2, paragraph 4, of the Code of Criminal Procedure, which provides that ‘in an area between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line traced 20 kilometres inside that border, and in the publicly accessible areas of ports, airports and railway or bus stations open to international traffic, designated by order, the identity of any person may also be checked, in accordance with the procedure provided for in paragraph 1, in order to ascertain whether the obligations laid down by law to possess, carry and present papers and documents are observed. Where that control takes place on board an international train, it may be carried out on the section of the journey between the border and the first stop situated beyond the twenty kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next fifty kilometres. Those lines and those stops are designated by Ministerial order. Where there is a section of motorway starting in the area referred to in the first sentence of this paragraph and the first motorway tollbooth is situated beyond the twenty kilometre line, the control may also take place up to that first tollbooth, on parking areas and on the site of that tollbooth and the adjoining parking areas. The tollbooths concerned by this provision shall be designated by order’?

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 19 April 2010 — Rastelli Davide et C. v Jean-Charles Hidoux, in his capacity as liquidator appointed by the court for Médiasucre International

(Case C-191/10)

(2010/C 161/55)

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicant: Rastelli Davide et C.

Defendant: Jean-Charles Hidoux, in his capacity as liquidator appointed by the court for Médiasucre International

Questions referred

1.

Where a court in a Member State opens the main insolvency proceedings in respect of a debtor, on the view that the centre of the debtor’s main interests is situated in the territory of that Member State, does Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (1) preclude the application, by that court, of a rule of national law conferring upon it jurisdiction to join to those proceedings a company whose seat is in another Member State solely on the basis of a finding that the property of the debtor and the property of that company have been intermixed?

2.

If the action for joinder falls to be categorised as the opening of new insolvency proceedings in respect of which the jurisdiction of the court of the Member State first seised is conditional on proof that the company to be joined has the centre of its main interests in that Member State, can such proof be inferred solely from the finding that the property of the two companies has been intermixed?

---

(1)  OJ L 160, p. 1.

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 April 2010 — Paderborner Brauerei Haus Cramer KG v Hauptzollamt Bielefeld

(Case C-196/10)

(2010/C 161/56)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Paderborner Brauerei Haus Cramer KG

Defendant: Hauptzollamt Bielefeld

Question referred

Is the Combined Nomenclature, in the version of Commission Regulation (EC) No 2031/2001 of 6 August 2001 (1) and in the version of Commission Regulation (EC) No 1832/2002 of 1 August 2002, (2) to be interpreted as meaning that a product described as a ‘malt beer base’ with an alcoholic strength by volume of approximately 14 %, obtained from brewed beer which has been clarified and then subjected to ultrafiltration, by which the concentration of ingredients such as bitter substances and proteins has been reduced, is to be classified under heading 2208?

---

(1)  Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council

Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 2001 L 279, p. 1.

(2)  Commission Regulation (EC) No 1832/2002 of 1 August 2002, amending Annex I to Council

Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 2002 L 290, p. 1.

Judgment of the General Court of 27 April 2010 — UniCredito Italiano v OHIM — Union Investment Privatfonds (UNIWEB)

(Jointed Cases T-303/06 and T-337/06) (1)

(Community trade mark - Opposition proceedings - Applications for Community word marks UNIWEB and UniCredit Wealth Management - Earlier national word marks UNIFONDS and UNIRAK and earlier national figurative mark UNIZINS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

(2010/C 161/57)

Language of the case: Italian

Parties

Applicant: UniCredito Italiano SpA (Genoa, Italy) (represented by: G. Floridia, R. Floridia and F. Polettini, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany) (represented by: J. Zindel, lawyer)

Re:

Action brought against two decisions of the Second Board of Appeal of OHIM of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) and of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2), concerning opposition proceedings between Union Investment Privatfonds GmbH and UniCredito Italiano SpA.

Operative part of the judgment

The Court:

1.	Orders that Cases T-303/06 and T-337/06 shall be joined for the purposes of the judgment;

2.

Annuls the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) in so far as it dismisses the appeal by UniCredito Italiano SpA in Case R 211/2005-2 by upholding the oppositions to the registration of the trade mark applied for, UNIWEB, with regard to ‘Banking business; financial affairs; monetary affairs; insurance; financial and insurance consultancy and information; credit/debit card services; banking and financial services via the Internet’ in Class 36;

3.

Annuls the Decision of the Second Board of Appeal of OHIM of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2) in so far as it dismisses the appeal by UniCredito Italiano SpA in Case R 456/2005-2 by upholding the oppositions to the registration of the trade mark applied for, UniCredit Wealth Management, with regard to ‘Banking business; financial affairs; monetary affairs; assurance; financial information’ in Class 36;

4.	Dismisses the applications of Union Investment Privatfonds GmbH;

5.	Orders each party to bear its own costs.

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(1)  OJ C 326, 30.12.2006.

Judgment of the General Court of 27 April 2010 — Union Investment Privatfonds v OHIM — Unicre-Cartão International De Crédito (unibanco)

(Case T-392/06) (1)

(Community trade mark - Opposition procedure - Application for the figurative Community mark unibanco - Prior national figurative marks UniFLEXIO, UniVARIO and UniZERO - Late production of documents - Discretion conferred by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009))

(2010/C 161/58)

Language of the case: German

Parties

Applicant: Union Investment Privatfonds GmbH (Frankfurt-am-Main, Germany) (represented by: H. Keller, later by J. Zindel, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Unicre-Cartão International De Crédito S.A. (Lisbon, Portugal)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 10 October 2006 (Case R 442/2004-2) concerning an opposition procedure between Union Investment Privatfonds GmbH and Unicre-Cartão International De Crédito S.A.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Union Investment Privatfonds GmbH to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

Judgment of the General Court of 6 May 2010 — Comune di Napoli v Commission

(Case T-388/07) (1)

(ERDF - Reduction in assistance - Urban pilot project for the development of a telematic network for the city of Naples - Notion of ‘irregularity’ - Eligible expenses)

(2010/C 161/59)

Language of the case: Italian

Parties

Applicant: Comune di Napoli (Italy) (represented by: F. Sciaudone, G. Tarallo, G. Pizza and R. Sciaudone, lawyers)

Defendant: European Commission (represented by: L. Flynn, Agent, and A. Dal Ferro, lawyer)

Re:

First, annulment of Commission Decision C(2007) 3893 of 8 August 2007, concerning a reduction in the assistance granted by the European Regional Development Fund (ERDF) under Article 10 of Regulation (EEC) No 4254/88, amended by Regulation (EEC) No 2083/93, to the city of Naples (Italy) by Commission Decision PH/1997/2761, approving the granting of ERDF assistance in the context of urban pilot project No 97.05.29.002 and, secondly, an application for damages seeking compensation for the damage allegedly suffered by the applicant following the adoption of the contested decision.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Comune di Napoli to pay the costs.

---

(1)  OJ C 283, 24.11.2007.

Judgment of the General Court of 27 April 2010 — Freixenet v OHIM (Shape of a frosted white bottle)

(Case T-109/08) (1)

(Community trade mark - Application for a Community trade mark representing a frosted white bottle - Absolute ground for refusal - Lack of distinctive character - No distinctive character acquired through use - Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) - Obligation to state reasons - Rights of the defence - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

(2010/C 161/60)

Language of the case: French

Parties

Applicant: Freixenet, SA (Sant Sadurní d’Anoia, Spain) (represented by: F. de Visscher, E. Cornu and D. Moreau, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 30 November 2007 (Case R 97/2001-1) concerning an application for registration of a sign representing a frosted white bottle as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Freixenet, SA to pay the costs.

---

(1)  OJ C 116, 9.5.2008.

Judgment of the General Court of 27 April 2010 — Freixenet v OHIM (Shape of a frosted black matt bottle)

(Case T-110/08) (1)

(Community trade mark - Application for a Community trade mark representing a frosted black matt bottle - Absolute ground for refusal - Lack of distinctive character - No distinctive character acquired through use - Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) - Obligation to state reasons - Rights of the defence - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

(2010/C 161/61)

Language of the case: French

Parties

Applicant: Freixenet, SA (Sant Sadurní d’Anoia, Spain) (represented by: F. de Visscher, E. Cornu and D. Moreau, lawyers

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 November 2007 (Case R 104/2001-1) concerning an application for registration of a sign representing a frosted black matt bottle as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Freixenet, SA to pay the costs.

---

(1)  OJ C 116, 9.5.2008.

Judgment of the General Court of 29 April 2010 — Kerma v OHIM (BIOPIETRA)

(Case T-586/08) (1)

(Community trade mark - Application for the Community word mark BIOPIETRA - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

(2010/C 161/62)

Language of the case: Italian

Parties

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

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 October 2008 (Case R 889/2008-1) concerning an application for registration of the word mark BIOPIETRA as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Kerma SpA to pay the costs.

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(1)  OJ C 55, 7.3.2009.

Judgment of the General Court of 15 April 2010 — Katjes Fassin v OHIM (shape of a panda face)

(Case T-22/09) (1)

(Community trade mark - Refusal of registration by the examiner - Withdrawal of the application for registration - No need to rule)

(2010/C 161/63)

Language of the case: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany) (represented by: T. Schmitz, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 13 November 2008 (Case R 1299/2006-4) concerning an application for registration as a Community trade mark of a three-dimensional mark showing a panda face in black, white and red.

Operative part of the judgment

The Court:

1.	Holds that there is no need to rule on the action;

2.	Orders the applicant to pay the costs.

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(1)  OJ C 69, 21.3.2009.

Order of the President of the General Court of 30 April 2010 — Inuit Tapiriit Kanatami and Others v Parliament and Council

(Case T-18/10 R)

(Applications for interim measures - Regulation (EC) No 1007/2009 - Trade in seal products - Ban on import and sale - Exception in favour of Inuit communities - Application for suspension of operation of a measure - Admissibility - Prima facie case - No urgency)

(2010/C 161/64)

Language of the case: English

Parties

Applicants: Inuit Tapiriit Kanatami (Ottawa, Canada); Nattivak Hunters and Trappers Association (Qikiqtarjuaq, Canada); Pangnirtung Hunters’ and Trappers’ Association (Pangnirtung, Canada); Jaypootie Moesesie (Qikiqtarjuaq); Allen Kooneeliusie (Qikiqtarjuaq); Toomasie Newkingnak (Qikiqtarjuaq); David Kuptana (Ulukhaktok, Canada); Karliin Aariak (Iqaluit, Canada); Efstathios Andreas Agathos (Athens, Greece); Canadian Seal Marketing Group (Quebec, Canada); Ta Ma Su Seal Products (Cap-aux-Meules, Canada); Fur Institute of Canada (Ottawa); NuTan Furs, Inc (Catalina, Canada); GC Rieber Skinn AS (Bergen, Norway); Inuit Circumpolar Conference Greenland (ICC) (Nuuk, Greenland, Denmark); Johannes Egede (Nuuk); and Kalaallit Numaanni Aalisartut Piniartullu Kattuffiat (KNAPK) (Nuuk) (represented by: J. Bouckaert, M. van der Woude and H. Viaene, lawyers)

Defendants: European Parliament (represented by I. Anagnostopoulou and L. Visaggio, acting as Agents) and Council of the European Union (represented by: M. Moore and K. Michoel, acting as Agents)

Re:

Application for suspension of the operation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36)

Operative part of the order

1.

The opinion of the Legal Service of the Council of the European Union of 18 February 2009 on the proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products, submitted by the Commission of the European Communities (COM(2008) 469 final of 23 July 2008), set out in Annex A-4 to the application for interim measures, and the extract from that opinion contained in paragraph 16 of that application are removed from the file in Case T-18/10 R.

2.	The application for interim measures is dismissed.

3.	The costs are reserved.

Order of the General Court of 27 April 2010 — Parliament v U

(Case T-103/10 P (R)) (1)

(Appeal - Staff cases - Officials - Dismissal decision - Order of the President of the Civil Service Tribunal of the European Union in an application for interim measures - Lack of urgency)

(2010/C 161/65)

Language of the case: French

Parties

Appellant: European Parliament (represented by: S. Seyr and K. Zejdovà, Agents)

Other party to the proceedings: U (Luxembourg, Luxembourg) (represented by: F. Moyse and A. Salerno, lawyers)

Re:

Appeal against the Order of the President of the Civil Service Tribunal of the European Union of 18 December 2009 in Case F-92/09 R U v Parliament, not yet reported in the ECR, seeking to have that order set aside.

Operative part of the order

1.	The Order of the President the Civil Service Tribunal of the European Union of 18 December 2009 in Case F-92/09 R U v Parliament, not yet reported in the ECR, is set aside;

2.	The application for interim measures brought by U is dismissed;

3.	Costs are reserved.

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(1)  OJ C 113, 1.5.2010.

Action brought on 21 October 2009 — Campailla v Commission

(Case T-429/09)

(2010/C 161/66)

Language of the case: French

Parties

Applicant: Massimo Campailla (Boulogne-sur-Mer, France) (represented by: P. Goergen, lawyer)

Defendant: European Commission

Form of order sought

—	Order the Commission to make good damage suffered by the applicant as a result of the Commission’s refusal to take measures following his complaint regarding the violation of his fundamental rights by the Cameroon authorities.

Pleas in law and main arguments

By the present action, the applicant seeks compensation for the damage allegedly suffered as a result of the Commission decisions, contained in letter D3 *3/2004/D/4809 of 30 July 2004 and in letter D3 D*3/2004/D/5438 of 9 September 2004, sent to the applicant, in which the Commission refused to take measures following his complaint regarding the violation of his fundamental rights by the Cameroon authorities.

In support of his action, the applicant raises pleas alleging the unlawfulness of the decision as a result of distortion the facts and misuse of powers and the infringement of provisions and principles of the EC Treaty and EU Treaty as well as fundamental rights guaranteed by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (inter alia: principles of legal certainty, legitimate expectations, sound administration, non-discrimination, good governance, compliance with the essential procedural requirements, prohibition of inhuman and degrading treatment).

Appeal brought on 12 April 2010 by V against the judgment of the Civil Service Tribunal delivered on 21 October 2009 in Case F-33/08 V v Commission

(Case T-510/09 P)

(2010/C 161/67)

Language of the case: French

Parties

Appellant: V (Brussels, Belgium) (represented by E. Boigelot, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

—	Declare the appeal admissible and well-founded and, in consequence,

—

set aside the judgment under appeal delivered on 21 October 2009 by the First Chamber of the European Union Civil Service Tribunal in Case F-33/08, notified to the appellant on 26 October 2009, dismissing as unfounded the appellant’s action for annulment of the Commission’s decision of 15 May 2007, informing her that she did not satisfy the physical fitness requirements necessary for the performance of her duties, and for an order that the Commission pay damages to the appellant for the losses she claims to have suffered;

—	grant the form of order sought by the appellant before the European Union Civil Service Tribunal;

—	order the respondent to pay the costs of the proceedings at first instance and of the appeal.

Pleas in law and main arguments

By the present appeal, the appellant requests the General Court to set aside the judgment of the Civil Service Tribunal (CST) of 21 October 2009, delivered in Case F-33/08 V v Commission, dismissing the action for annulment of the Commission’s decision not to engage the appellant on the ground that she does not satisfy the physical fitness requirements necessary for the performance of her duties, and a claim for damages.

In support of her appeal, the appellant puts forward three pleas in law alleging errors of law, distortion of the evidence in the documents in the case and erroneous and inadequate grounds of the judgment.

First, the appellant challenges the judgment under appeal in so far as the Tribunal found that it had not been established that the irregularity concerning Dr K’s intervention had influenced the procedural steps that culminated in the adoption of the decision at issue.

Second, the appellant takes the view that the CST misconstrued the duty to respect the confidentiality of medical information and the patient’s right as an individual to respect for such confidentiality, in so far as it considered itself to be prevented by the appellant’s reliance on that principle from reviewing the legality of the medical committee’s opinion as to her non-fitness for work.

Third, the appellant is of the view that the CST vitiated its reasoning by a failure to state reasons with regard to its appraisal of the arguments concerning the non-registration of the chairman of the medical committee on the list of the Belgian Ordre des médecins (Belgian Medical Council).

Action brought on 25 January 2010 — Noko Ngele v Commission

(Case T-15/10)

(2010/C 161/68)

Language of the case: French

Parties

Applicant: Mariyus Noko Ngele (Brussels, Belgium) (represented by: F. Sabakunzi, lawyer)

Defendant: European Commission

Form of order sought

—	declare that the CDE never replaced the CDI and that it does not exist in law or have legal personality in Belgium;

—	order the European Commission, and one of its Members and certain officers thereof, jointly and severally, to pay the amount of EUR 200 000 in respect of financial damage, in addition to statutory interest of 10 % per annum as from 1995 plus interest to be determined by the Court;

—	order the European Commission, and one of its Members and certain officers thereof, jointly and severally, to pay the amount of EUR 5 000 000 in respect of non-material and psychological damage, in addition to interest to be determined by the Court;

—	declare that the judgment to be delivered will be enforceable notwithstanding any possible appeal;

—	order the defendant to pay the costs and a procedural indemnity of EUR 30 000.

Pleas in law and main arguments

By the present action, the applicant claims damages for the loss allegedly suffered as a result of the impossibility of pursuing recovery of a debt owed to him by the ‘Centre pour le développement industriel (CDI)’ in consequence of the replacement of that organisation by a joint institution of the ACP (African, Caribbean and Pacific) Group of States and the European Union named ‘Centre pour le développement de l’entreprise (CDE)’.

Action brought on 2 April 2010 — France v European Commission

(Case T-154/10)

(2010/C 161/69)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, B. Beaupère-Manokha and J. Gstalter, acting as Agents)

Defendant: European Commission

Form of order sought

—	Annul in its entirety the contested decision;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2010) 133 Final of 26 January 2010 declaring the implicit unlimited guarantee in favour of La Poste under the provisions of French law concerning the legal consequences of its status as a legal entity governed by public law, the equivalent of a State-owned industrial and commercial establishment, to be State aid incompatible with the Common Market (State aid No C 56/2007 (formerly E 15/2005)).

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

—	error of law in that the Commission did not establish to the requisite legal standard the existence of State aid. The Commission failed to comply with the evidential rules relating to State aid with regard both to the burden of proof and the standard of proof;

—	errors in fact and in law in that the Commission found the existence of an implicit unlimited guarantee in favour of La Poste;

—

error in applying the concept of advantage within the meaning of Article 107(1) TFEU. First, the Commission erred in concluding that a guarantee created an advantage in favour of La Poste and, secondly, the Commission erred in considering that La Poste’s positive rating was a result of the existence of the alleged guarantee.

Action brought on 9 April 2010 — Dow Chemical v Council

(Case T-158/10)

(2010/C 161/70)

Language of the case: English

Parties

Applicant: The Dow Chemical Company (represented by: J.-F. Bellis, R. Luff and V. Hahn, lawyers)

Defendant: Council of the European Union

Form of order sought

—	annul Council Implementing Regulation (EU) No 54/2010 (1) insofar as it concerns the applicant,

—	order the Council to bear the costs.

Pleas in law and main arguments

In support of its application, the applicant puts forward a single plea in law by which it claims that the contested regulation violates Article 11(2) of the basic regulation (2), on the following grounds:

—

the determination that dumping of ethanolamines from the US will continue is erroneously based on a finding of dumping during the review investigation period in relation to exporting producers representing only a very minor proportion of imports from the US; the institutions ignored the fact that the producer who accounted for the overwhelming majority of imports from the US was found not to have engaged in dumping and that, as a result, imports of ethanolamines from the US taken globally were not dumped;

—	the determination that the alleged dumping of ethanolamines from the US increased after review investigation period is based on an arbitrary selection of price quotes which do not reflect the trend of prices after the review investigation period;

—	the determination that spare capacity in the US will lead to an increase in exports of ethanolamines to the EU is based on a manifest error since there was no unused capacity in the US;

—	the determination that the anti-dumping measures on ethanolamines from the US imposed by China since 2004 will induce the US ethanolamines exporters to sell increased quantities to the EU is contradicted by the development of trade flows since 2005;

—	the determination that the possible development of demand in the US and other markets will lead US producers to shift exports to the EU is purely speculative;

—

the determination that very weak prices and capacity expansions for monoethylene glycol — which, like ethanolamines, is a downstream product of ethylene oxide — would provide an incentive for producers to shift from monoethylene glycol to ethanolamines production is inconsistent with the facts on record and is vitiated by an error of assessment;

—

the defendant develops a contradictory reasoning as regards the relationship between US and EU prices since they seem to argue at the same time that higher EU prices provide an incentive for US exporters to shift their sales to the EU and that lower prices in the EU force US producers to sell at dumped prices in the EU.

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(1)  Council Implementing Regulation (EU) No 54/2010 of 19 January 2010 imposing a definitive anti-dumping duty on imports of ethanolamines originating in the United States of America, OJ 2010 L 17, p. 1

(2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)

Action brought on 9 April 2010 — Air France v OHIM (Representation of a parallelogram)

(Case T-159/10)

(2010/C 161/71)

Language in which the application was lodged: French

Parties

Applicant: Air France (Roissy Charles de Gaulle, France) (represented by A. Grolée, lawyer)

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

Forms of order sought

—	Annulment of the decision of 27 January 2010 of the Second Board of Appeal in Case 1018/2009-2 in so far as it dismissed the application for trade mark No 007576218 for the goods and services which are the subject of this action;

—	Grant registration of the application for Community figurative mark No 007576218 for all goods and services covered by it;

—	Order OHIM to pay the applicant’s costs incurred in the proceedings before OHIM and in the present action, pursuant to Article 87 of the Rules of Procedure.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark, representing the shape of a parallelogram, for goods and services in Classes 9, 14, 16, 18, 21, 24, 25, 28, 35 to 39 and 41 to 45 (Application No 7 576 218)

Decision of the Examiner: Rejection of the application for registration

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark, as the mark applied for has the requisite minimum level of distinctiveness.

Action brought on 13 April 2010 — Niki Luftfahrt GmbH v Commission

(Case T-162/10)

(2010/C 161/72)

Language of the case: German

Parties

Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

Defendant: European Commission

Form of order sought

—	Annul the contested Commission Decision C(2009) 6690 of 28 August 2009, Case COMP/M.5440 — Lufthansa/Austrian Airlines in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

—	Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5440 — Lufthansa/Austrian Airlines). In that decision the Commission takes the view that, the acquisitions by Deutsche Lufthansa AG of sole control over the Austrian Airlines company — subject to the implementation of the commitments submitted by Deutschen Lufthansa AG — is compatible with the common market and the EEA Agreement.

In support of its action for annulment the applicant, which operates a privately financed airline, submits, first, that the Commission has infringed the EC Treaty (or the TFEU) and the rules of law relating to its application. It is claimed in this connection that the Commission based its decision on a market definition which hampers an assessment of all negative effects of the concentration on competition. Further, the applicant submits that the Commission incorrectly assessed the impact of the concentration in particular with regard to flight routes to Eastern Europe, so that in this respect there was a gross and manifest misappraisal. Furthermore, the Commission did not follow the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (1). According to the applicant, the Commission in particular failed to take into account that the concentration at issue has negative effects on competition in the common market, because as a result the competitiveness of the remaining competitors in the market would be significantly impeded, that there are no alternative players on the relevant market and that entry into the relevant market is not sufficiently easy. Further, the applicant states that Deutschen Lufthansa AG’s commitments which were accepted by the Commission are not suited to prevent a significant impediment to effective competition.

Second, the applicant alleges infringement of Article 253 EC (Article 296 the TFEU), inasmuch as the Commission has not stated proper reasons for the contested decision, in that it does not state on the basis of what specific arguments a restriction in competition on flight routes to Eastern Europe can be excluded. Furthermore, it is alleged that the investigation of the case was incomplete.

Third, the applicant claims that there has been a misuse of power by the Commission.

---

(1)  OJ 2004 C 31, p. 5.

Action brought on 7 April 2010 — Entegris v OHIM — Optimize Technologies (OPTIMIZE TECHNOLOGIES)

(Case T-163/10)

(2010/C 161/73)

Language in which the application was lodged: English

Parties

Applicant: Entegris, Inc. (Billerica, United States) (represented by: T. Ludbrook, Barrister and M. Rosser, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Optimize Technologies, Inc. (Oregon City, United States)

Form of order sought

—	Uphold the appeal;

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 January 2010 in case R 802/2009-2;

—	Reject the Community trade mark application in question; and

—	Order the defendant to bear the costs, including those related to the appeal and opposition proceedings.

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 word mark ‘OPTIMIZE TECHNOLOGIES’, for goods in class 9.

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

Mark or sign cited: Community trade mark registration of the word mark “OPTIMIZER”, for goods in classes 1, 9 and 11.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal failed to apply the said legal provision in accordance with the relevant case law, thereby wrongly finding that there was no likelihood of confusion between the trade marks concerned.

Action brought on 13 April 2010 — Pioneer Hi-Bred International v Commission

(Case T-164/10)

(2010/C 161/74)

Language of the case: English

Parties

Applicant: Pioneer Hi-Bred International, Inc. (Johnston, United States) (represented by: J. Temple Lang, Solicitor and T. Müller-Ibold, lawyer)

Defendant: European Commission

Form of order sought

—

find that the Commission has failed to act in accordance with Article 18 of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms, in having failed to submit to the Council a draft of the measures to be taken pursuant to Article 5(2) of the Council decision, and having failed to take all other measures that may, depending on development of the decision making procedure, be necessary to ensure that the decision referred to in Article 18 of the directive is adopter;

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

Pleas in law and main arguments

On 2 May 2007, the applicant lodged its first application pursuant to Article 232 CE (1) claiming that the Commission had failed to act, in violation of Article 18 of Directive 2001/18/EC (2), to ensure the adoption of a decision concerning the applicant’s notification for the placing on the market of insect-resistant genetically modified maize 1507. On 21 January 2009, the Commission, under Article 5(2) of Decision 1999/468, submitted the proposal for a decision to the regulatory committee. In the framework of the proceedings before the Court, the parties agreed that, taking account of the submission of the proposal for a decision, the action became devoid of purpose and by the order of 4 September 2009 the Court decided that there was no need to adjudicate in Case T-139/07.

In the present action the applicant claims, pursuant to Article 265 TFUE, that the Commission has still failed to make a proposal concerning a placing on the market of insect-resistant genetically modified maize 1507 to the Council despite the request of the applicant. The applicant argues that the Commission has failed to submit a draft decision on the applicant’s notification to any of the six meetings of the Environment Council that have been held since regulatory committee issued “no opinion” on the proposal on 25 February 2009.

The applicant contends that under the procedure set out in the directive, the Commission is obliged to ensure that a decision on a notification is adopted and published within the period of time prescribed in the directive. The applicant furthermore submits that by failing to submit to the Council a draft of the measures to be taken the Commission failed to ensure that such a decision was adopted even though all requirements on the applicant and other parties under the directive had been completed in accordance with the directive.

The applicant moreover submits that the Commission has been called upon to define its position within the terms of Article 265 TFUE which the Commission has failed to do. In the applicant’s opinion, the Commission’s reasons for its failure to submit a draft decision to the Council are irrelevant and unjustified. The Commission’s failure to act has, according to the applicant, had adverse effects on its legal situation and had caused it to sustain specific, proven and quantifiable loses.

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(1)  Case T-139/07, Pioneer Hi-Bred International v Commission, OJ 2007 C 155, p. 28

(2)  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 — Commission Declaration, OJ 2001 L 106, p. 1

Action brought on 7 April 2010 — Evropaïki Dynamiki v Commission

(Case T-167/10)

(2010/C 161/75)

Language of the case: English

Parties

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

Defendant: European Commission

Form of order sought

—

Annul the decision of 27 January 2010 of the Secretariat General — SG.E.3/FM/psi — Ares (2010)43764- rejecting the request for a review submitted by the applicant in which it requested, pursuant to Regulation (EC) No 1049/2001, the review of the position taken by the Directorate-General for Informatics in its letter of 18 September 2009, following the applicant’s initial request, dated 14 August 2009, as concerns access to all requests for quotation (RfQs) pertaining to Lot 3A of ESP-DESIS;

—

Annul the decision of 11 March 2010 of the Secretariat General — SG.E.3/FM/MIB/rc/psi — Ares(2010)131966- rejecting the request for a review submitted by the applicant in which it requested, pursuant to Regulation (EC) No 1049/2001, the review of the positions taken by the Directorate-General (DG) for Informatics, by the Publications Office of the European Union (OP, previously OPOCE) and by the Budget DG in their respective letters of 11 December 2009, following the applicant’s initial requests, dated 9 October 2009, as concerns access to all RfQs pertaining to all lots of the contracts ESP, ESP-DIMA and ESP-DESIS(dealt by Informatics DG), OPOCE’s Framework Contracts No 6011, 6102, 6103, 6020, 10042, 6121, 6031, 10030 and DG BUDGET’s Framework Contract No BUDG/O101;

—	Order the Commission to pay the applicant’s legal and other costs and expenses incurred in connection with its application; even if the current application is rejected.

Pleas in law and main arguments

In support of its claims, the applicant argues that the Commission infringed the regulation No 1049/2001 by not carrying out a concrete, individual examination of the documents referred to in the request for access in order to assess whether the exceptions relied on applied or whether a partial access could be granted. Moreover, the applicant contends that the justifications provided for by the Commission with regards to the protection of the economic policy of the EU, the protection of the commercial interests and the public security reasons should be rejected as wholly unfounded as the reasons relied on by the Commission are, in the applicant’s view, general and abstract in nature and do not show that the Commission undertook a specific individual examination of the content of the requested documents.

Action brought on 15 April 2010 — Commission v SEMEA

(Case T-168/10)

(2010/C 161/76)

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Petrova, Agent and E. Bouttier, lawyer)

Defendant: Société d’économie mixte d’équipement de l’Aveyron (SEMEA) (Millau, France)

Form of order sought

The applicant claims that the Court should:

—	order the société d’économie mixte de l’Aveyron, in the person of its ad hoc agent, to pay the applicant the principal sum of EUR 41,012, plus interest outstanding since 10 March 1992 or, in the alternative, from 27 April 1993;

—	order the capitalisation of interest;

—	order the SEMEA to pay EUR 5 000 in respect of wrongful obstruction of legal process;

—	order the SEMEA to pay the costs of this case.

Pleas in law and main arguments

The European Community, represented by the Commission, concluded on 6 July 1990 with the Société d’économie mixte d’équipement de l’Aveyron (the Aveyron semi-public installations company) (SEMEA) a grant contract concerning a local development action consisting in the performance of work for the preparation and launching of a Centre Européen d’Entreprise Locale (European Local Enterprise Centre) in Millau.

The Commission claims that under that contract, the SEMEA undertook to perform various services and to account for them to the Commission by submitting periodical reports, the Commission for its part undertaking to contribute financially to the performance of those works up to a maximum of ECU 135,000, not exceeding 50 % of the justified costs of the works.

In May 1991, the SEMEA requested from the Commission that that contract might be performed by another structure, the Association CEI12, which the Commission accepted, specifying that that agreement did not exempt the SEMEA from its obligations, and the SEMEA thus confirmed that it would guarantee the proper performance of the services provided for in the contract.

Following a check on the state of progress of the works, it was found that the total eligible expenditure was ECU 187,977 and thus, that the Commission’s contribution was to be set at 50 % of that amount, that is, at ECU 93,988.

In so far as the SEMEA has already received ECU 135,000 in respect of the contract, this action seeks to claim from the SEMEA the recovery of the overpayment.

Action brought on 19 April 2010 — CTG Luxembourg PSF v Court of Justice

(Case T-170/10)

(2010/C 161/77)

Language of the case: French

Parties

Applicant: Computer Task Group Luxembourg PSF SA (Bertrange, Luxembourg) (represented by: M. Thewes, lawyer)

Defendant: Court of Justice of the European Union

Form of order sought

The applicant claims that the Court should:

—

annul the decisions taken by the Court of Justice in the context of the European public contract ‘AO 008/2009: 1st and 2nd level support for the users of IT and telephone systems, call centre, end user hardware management’, specifically: — the decision of the tender opening board of 9 February 2010 to reject the tender of CTG CONSORTIUM because it was ‘lodged out of time’; — the decision of the Court of Justice of the European Union to award the contract to another tenderer (not dated and unknown at that date to the applicant); — the decision of the Court of Justice of the European Union confirming the rejection of the tender of CTG CONSORTIUM of 05/03/2010;

—	declare the non-contractual liability of the European Union and order the Court of Justice to compensate the applicant for all the loss incurred on account of the contested decisions and appoint an expert to evaluate that loss;

—	order the Court of Justice to pay all the costs and expenses.

Pleas in law and main arguments

By this action, the applicant is seeking, first, annulment of the decision of the tender opening board of 9 February 2010, rejecting the applicant’s offer because it was lodged out of time, in the context of the tendering procedure concerning 1st and 2nd level support for the users of IT systems, call centre, end user hardware management (OJ 2009/S 217-312292), and of the decision to award the contract to another tenderer and, secondly, an application for damages.

In support of its appeal, the applicant puts forward four pleas alleging:

—	infringement of the principle of non-discrimination, the principle of equal treatment of tenderers and the principle of freedom of competition, by imposing a final time for posting the tenders, in addition to the final date for sending them;

—	infringement of the obligation to reply to requests for information sent in due time to the contracting authority;

—	infringement of the obligation to inform rejected tenderers of the grounds on which the rejection of their tender was based, the name of the successful tenderer and information as to the means of appeal;

—	the European Union’s non-contractual liability.

Action brought on 8 April 2010 — Colas v OHIM — García-Teresa Gárate (BASE-SEAL)

(Case T-172/10)

(2010/C 161/78)

Language in which the application was lodged: French

Parties

Applicant: Colas (Boulogne-Billancourt, France) (represented by: E. Logeais, lawyer)

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

Other party to the proceedings before the Board of Appeal: Rosario García-Teresa Gárate

Form of order sought

The applicant claims that the Court should:

—

primarily, annul the decision of the Board of Appeal: — in so far as it found that there was no similarity between the signs, relying on a distorted representation of the trade mark application at issue and failing, inter alia, to precisely specify the relevant public and to give reasons for the distinctive and dominant character of the terms BASE-SEAL; — in so far as it denied all similarity of the signs and consequently rejected the opposition to registration of the trade mark BASE-SEAL in breach of Article 8(1)(b) CTMR; and

—	in the alternative, partly annul the decision of the Board of Appeal in respect of the sole goods other than ‘chemicals used in science, photography, agriculture, horticulture and forestry … manures, chemical substances for preserving foodstuffs…’;

—	in any event, order the Office to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Rosario García-Teresa Gárate

Community trade mark concerned: a figurative mark ‘BASE-SEAL’ for goods in Classes 1, 17 and 19 (Application No 3 951 464)

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

Mark or sign cited in opposition: several national figurative marks (Spanish, Hungarian, French, Polish, Swedish, German and Czech) and an international figurative mark in the form of a diamond, partly in yellow and containing the word ‘Colas’ for goods in Classes 1, 19 and 37

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark on account of the fact that there is a likelihood of confusion between the conflicting marks

Action brought on 15 April 2010 — Milux v OHIM (FERTILITYINVIVO)

(Case T-175/10)

(2010/C 161/79)

Language of the case: English

Parties

Applicant(s): Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2010 in case R 1116/2009-4; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘FERTILITYINVIVO’ for goods and services in classes 9, 10 and 44

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for is not eligible for registration as a Community trade mark because it does not possess sufficient inherent distinctiveness.

Action brought on 15 April 2010 — Seven v OHIM — Seven For All Mankind (SEVEN FOR ALL MANKIND)

(Case T-176/10)

(2010/C 161/80)

Language in which the application was lodged: Italian

Parties

Applicant: Seven SpA (Leinì, Italy) (represented by: L. Trevisan, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seven For All Mankind LLC

Form of order sought

—	Annul the decision of the Second Board of Appeal of 28 January 2010.

—	Order OHIM to bear its own costs and to pay the costs incurred by Seven SpA in the present proceedings and in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Seven For All Mankind LLC

Community trade mark concerned: Word mark ‘SEVEN FOR ALL MANKIND’ (Application No 4 443 222), for goods in Classes 14 and 18.

Proprietor of the mark or sign cited in the opposition proceedings: Seven SpA.

Mark or sign cited in opposition: Two Community figurative marks (No 591 206 and No 3 489 234 for goods in Classes 16, 18 and 25) and an international trade mark (No 731 954, for goods in Classes 3, 9, 12, 14, 15, 16, 18, 20, 22, 25 and 28) which contain the word element ‘SEVEN’.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.

Action brought on 19 April 2010 — Alcoa Trasformazioni v Commission

(Case T-177/10)

(2010/C 161/81)

Language of the case: Italian

Parties

Applicant: Alcoa Trasformazioni Srl (Portoscuso, Italy) (represented by: M. Siragusa and T. Müller-Ibold, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the Commission’s decision of 19 November 2009 (C(2009) 8112) in so far as it concerns State aid C 36/B/2006 (ex NN 38/2006) allegedly granted by Italy to Alcoa Trasformazioni Srl;

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

Pleas in law and main arguments

The present action for annulment concerns the decision adopted by the European Commission on 19 November 2009 with regard to Alcoa Trasformazioni Srl (‘the contested decision’). (1)

That decision categorised the prolongation of the tariff scheme applicable to the Alcoa installations in Sardinia and the Veneto, provided for under Article 11(11) of Decree No 35 of 14 March 2005, (2) with effect from 1 January 2006, as new State aid incompatible with the common market, and ordered its partial recovery.

It should be borne in mind in that regard that since 1996 a preferential tariff has been applied to the applicant for the electricity for its two primary aluminium smelters located respectively in Sardinia and the Veneto. That tariff was brought to the knowledge of the Commission in the context of the privatisation of Alumix, an aluminium producer controlled by the Italian State, which was later sold to the applicant. In 1996, the Commission reached the conclusion that the tariff in question did not constitute State aid.

In the contested decision, the Commission maintains that, following a number of changes, the tariff at issue is a measure which is completely different from the measure examined in 1996.

According to the applicant, the contested decision is unlawful in view of the following:

—	infringement of Article 107(1) TFEU in that it found the tariff for the electricity purchased by Alcoa for its two primary aluminium smelters, located respectively in Sardinia and the Veneto, as ‘aid’, even though it did not confer any advantage on the recipient;

—	infringement of Article 107(3) TFEU in that it miscalculated the worth of the aid;

—	infringement of Article 107(3) TFEU in that it erred in finding that the tariff in question constituted operating aid, incompatible with the Guidelines on State aid for regional purposes;

—

breach of the principle of sound administration and of Article 107(3) TFEU in that, in the course of the procedure, the Commission radically changed its own assessment regarding the impact caused by the introduction of the market mechanism which the Commission itself had proposed for Sardinia, without giving any explanation or warning and, as if that were not enough, at the end of a faulty investigation;

—	breach of the principle of the protection of legitimate expectations and infringement of Article 108 TFEU in that it categorised the tariff as ‘new’ aid and as ‘existing’ aid.

Lastly, the applicant maintains that, in adopting the contested decision, the Commission breached a number of essential procedural requirements.

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(1)  Commission Decision of 19 November 2009 concerning State Aid No C 38/A/2004 (ex NN 58/2004) and No C 36/B/2006 (ex NN 38/2006) implemented by Italy in favour of Alcoa Trasformazioni Srl.

(2)  Laying down ‘Urgent provisions under the Action plan for economic, social and territorial development’ and converted into law, with amendments, by Law No 80 of 14 May 2005.

Action brought on 21 April 2010 — Spain v Commission

(Case T-178/10)

(2010/C 161/82)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad)

Defendant: European Commission

Form of order sought

—

Annul the decision of the European Commission of 22 February 2010, declaring the suspension of the interim payment applications made by the Kingdom of Spain between 17 November and 30 December 2009 and, alternatively, partially annul that decision in relation to the following interim payment applications: — 2007ES161PO008 Andalucia EUR 94 370 752,75 — 2007ES161PO008 Andalucia EUR 479 712 483,22 — 2007ES162PO001 Cantabria EUR 4 697 332,79 — 2007ES162PO006 Catalunya EUR 5 392 569,98 — 2007ES162PO008 Aragon EUR 12 451 358,48

—	uphold the claimed payment of interest by the European Commission, due to the delay in the actual payment of the interim sums applied for and improperly suspended, and

—	order the Commission to pay the costs

Pleas in law and main arguments

This action is directed against the decision of the European Commission to interrupt the payment deadline of the abovementioned payment applications, made by the Kingdom of Spain between 17 November and 30 December 2009. That interruption affects twenty interim payment applications with a total value of EUR 1 890 708 859,51 .

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

—

Infringement of Article 91(1)(a) of Regulation 1083/2006, (1) since the Commission, without any report from a national or Community audit body to suggest the existence of significant deficiencies in the functioning of the management and control systems and in the absence of any such deficiencies, by means of the contested decision interrupted the payment deadline of the abovementioned interim payment applications submitted by the Kingdom of Spain.

—

Infringement of the control strategies approved by the Commission, in as much as the Commission interrupted the payment deadline for those interim payments on the ground that the absence of systems audits constitutes a significant failure in the implementation of strategies, when those strategies enabled the Kingdom of Spain to submit those systems audits until 30 June 2010.

—	Infringement of the principle of legal certainty, since the contested decision requires the Kingdom of Spain to produce the systems audits in advance of the timetable agreed with the Commission itself, a requirement which therefore the Spanish authorities could not have foreseen.

—

Infringement of the principle of protection of legitimate expectations, since the national authorities acted in reliance on auditing timetables which the Commission had approved in the strategies, timetables which were being met, without any indication from the Commission at any time that this represented any deficiency in the management and control system.

—

Infringement of the principle of proportionality, since the measure adopted by the Commission is disproportionate and contrary to efficient financial management and there are other less onerous legal instruments capable of attaining the same objective. Alternatively, the applicant seeks the partial annulment of the contested decision on the ground of an infringement of Article 87(2) of Regulation 1083/2006, since payment in respect of the abovementioned applications was not made within the period of two months following presentation of the applications.

Lastly, the Kingdom of Spain claims default interest under Article 87(2) of Regulation 1083/2006, Article 83 of Regulation 1605/2002 (2) and Article 106(5) of Commission Regulation 2342/2002. (3)

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(1)  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ L 210, p. 25).

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 25, p. 43).

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

Action brought on 21 April 2010 — Zitro IP v OHIM — Show Ball Informática (BINGO SHOWALL)

(Case T-179/10)

(2010/C 161/83)

Language in which the application was lodged: Spanish

Parties

Applicant: Zitro IP Sàrl (Luxembourg) (represented by: A. Canela Giménez, 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: Show Ball Informática Ltda

Form of order sought

—	Annul the decision of OHIM, and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Zitro IP.

Community trade mark concerned: Word mark ‘BINGO SHOWALL’ (application for registration No 6 059 919), for goods and services in Classes 9, 28 and 41

Proprietor of the mark or sign cited in the opposition proceedings: Show Ball Informática.

Mark or sign cited in opposition: Community figurative mark (No 5 092 275) containing the word element ‘SHOW BALL’, for goods and services in Classes 9 and 42.

Decision of the Opposition Division: Partial rejection of the application for registration.

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

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.

Action brought on 16 April 2010 — Nickel Institute v Commission

(Case T-180/10)

(2010/C 161/84)

Language of the case: English

Parties

Applicant: Nickel Institute (Toronto, Canada) (represented by: K. Nordlander, lawyer and H. Pearson, Solicitor)

Defendant: European Commission

Form of order sought

—	Declare the application for annulment admissible;

—	Annul the Commission Decision SG.E3/HP/psi–Ares(2010)65824 of 8 February 2010 to refuse full access to certain documents requested by the applicant under Regulation (EC) No 1049/2001 (1); and

—	Order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision SG.E3/HP/psi — Ares(2010)65824 of 8 February 2010 to refuse full access to certain documents requested by the applicant under Regulation (EC) No 1049/2001. The decision confirmed, inter alia:

—	The decision of the acting Director-General of the Commission’s legal service to refuse full access to seven documents giving the opinion of this service on the draft of Commission Directive 2008/58/EC (2);

—	The decision of the Director of Directorate D of DG Environment to refuse full access to two documents giving opinions of other Commission directorates-general on the draft of Commission Directive 2008/58/EC; and

—	That no document, record or correspondence (including any follow up documents or comments thereon) exists in the Commission’s possession in which the legal service gives its view on the draft of Commission Directive 2009/2/EC. (3)

In support of its claims, the applicant puts forward several pleas in law:

Firstly, the Secretary-General of the Commission committed a manifest error of assessment and infringed Article 4(2), second indent, of the Regulation (EC) No 1049/2001 in interpreting the exception relating to the protection of legal advice with regards to several of the requested documents.

In addition, the Secretary-General of the Commission committed a manifest error of assessment and infringed Article 4(2), second indent, of the Regulation (EC) No 1049/2001 in interpreting the exception relating to the protection of court proceedings with regards to the one of the requested documents.

Finally, the Secretary-General of the Commission committed a manifest error of assessment and infringed Article 8(1) of the Regulation (EC) No 1049/2001 in failing to identify and grant access to documents in which the legal service gives its view on the draft of Commission Directive 2009/2/EC.

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

(2)  Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ L 246, p. 1.

(3)  Commission Directive 2009/2/EC of 15 January 2009 amending, for the purpose of its adaptation to technical progress, for the 31st time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ L 11, p. 6.

Action brought on 19 April 2010 — AISCAT v Commission

(Case T-182/10)

(2010/C 161/85)

Language of the case: Italian

Parties

Applicant: Associazone Italiana delle Società Concessionarie per la costruzione e l’esercizio di Autostrade e Trafori stradali (AISCAT) (Rome, Italy) (represented by: M. Maresca, lawyer)

Defendant: European Commission

Form of order sought

—	Annul the decision of the European Commission of 10 February 2010.

Pleas in law and main arguments

The present action seeks the annulment of the decision contained in the letter of the European Commission of 10 February 2010, which ruled out the possibility of establishing an infringement of Article 87 EC (now Article 107 TFEU) on the part of the Italian Republic on the basis that it awarded the concession for the construction and management of a section of motorway (known as the Passante di Mestre), without issuing an invitation to tender, to a semi-public company, CAV SpA (a limited company equally owned by ANAS SpA and the Veneto Region) and financed the construction of the motorway section by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway.

The applicant relies on two grounds in support of its claim that it can be established that the Italian Republic infringed Article 87 EC (now Article 107 TFEU).

First, the direct award by the Italian Republic to CAV of the concession for the construction and management of the Passante di Mestre by means of Article 2(290) of Law No 244 of 24 December 2007 constitutes State aid since, in spite of the fact that the lawful requirements relating to in house procurement were not met, the concession was awarded to a semi-public company whose statutes and management structure confer upon it an unfair competitive advantage. CAV is 50 % owned by ANAS, which, whilst fulfilling a public function as a regulatory body, also operates as an undertaking (the construction and management of motorways) on the market which it itself regulates, to the rules of which it is subject and in respect of which it is itself a grantor of concessions.

Second, the fact that the Italian Republic approved the agreement concluded between ANAS (in its capacity as granting entity) and CAV for the financing of the Passante di Mestre by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway constitutes a grant of State aid to CAV.

The increase in the tariff was in fact the means by which traffic was diverted onto the new section of motorway (the Passante di Mestre) and, at the same time, brought about a fall in the volume of traffic on the competing section (the Tangenziale di Mestre), which was subject to the increase. The object of the aid is not, therefore, the sum deriving from the increase in the tariff in itself, but rather the competitive advantage which CAV derives from this, in contrast with the loss incurred by the companies operating the Tangenziale di Mestre.

Judgment of the General Court of 26 April 2010 — DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria)

(Case T-188/10)

(2010/C 161/86)

Language of the case: Spanish

Parties

Applicant: DTL Corporación, S.L. (Madrid, Spain) (represented by: C. Rueda Pascual, 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: Gestión de Recursos y Soluciones Empresariales, S.L. (Pamplona, Spain)

Form of order sought

—	annulment of the decision of the Second Board of Appeal of OHIM of 17 February 2010 in Case R 767/2009-2;

—

replace it by another which rejects the opposition brought by GESTIÓN DE RECURSOS Y SOLUCIONES EMPRESARIALES, S.L. against the Community trade mark No 5153325 ‘SOLARIA’ permitting that Community trade mark to be registered not only in Class 41, but also for all the services applied for in Classes 37 and 42; and order the opposing party to pay the costs of the opposition and the appeal before OHIM; and

—	order OHIM and the other parties to the proceedings who oppose this action to pay the costs thereof.

Pleas in law and main arguments

Applicant for a Community trade mark: DTL Corporación, S.L.

Community trade mark concerned: Figurative mark containing the word element ‘SOLARIA’ (Application No 5 153 325) for services in Classes 37, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Gestión de Recursos y Soluciones Empresariales, S.L.

Mark or sign cited in opposition: Spanish figurative mark containing the word element ‘SOLARTIA’ (No 2 689 747) for services in Classes 37 and 42.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.

Action brought on 22 April 2010 — Egan and Hackett v Parliament

(Case T-190/10)

(2010/C 161/87)

Language of the case: English

Parties

Applicants: Kathleen Egan (Athboy, Ireland) and Margaret Hackett (Borris-in-Ossory, Ireland) (represented by: C. MacEochaidh SC and J. Goode, Barristers and K. Neary, Solicitor)

Defendant: European Parliament

Form of order sought

—	Declare the application admissible;

—	Annul, under Article 263 TFUE, the Decision of the European Parliament dated 12 February 2010 (A(2010)579) denying access to information requested by the applicants by means of their initial application of 16 December 2009 and the subsequent confirmatory application of 28 January 2010; and

—	Order the Parliament to pay the costs incurred by the applicants.

Pleas in law and main arguments

By means of the present application, the applicants seek, pursuant to Article 263 TFUE, the annulment the decision of the European Parliament dated 12 February 2010 (A(2010)579) refusing access to documents, consisting of public registers of assistants to members of the European Parliament, whether accredited or otherwise, containing such assistants names and/or such assistants financial interests.

The applicants claim, in support of their application, that the Parliament inappropriately relied on Regulation (EC) No 1049/2001 (1) and on Regulation (EC) No 45/2001 (2) as a basis for refusing access to documentation already in the public domain. Accordingly, the applicants put forward several pleas in law:

Firstly, the Parliament failed to provide an adequate statement of reasons for the contested decision, thereby breaching Article 8 of Regulation (EC) No 1049/2001.

Secondly, the contested decision contains errors of assessment relating to the exception provided for in Article 4(1)(b) of Regulation (EC) No 1049/2001 in that it states that the disclosure of the relevant documents would infringe the privacy interests of the individuals concerned and/or fails to appreciate the true nature of Article 4(1)(b), and/or holds that the public interest in access to public registers of the assistants of the European Parliament members declines once the person is no longer in such position.

In addition, the contested decision infringes essential procedural requirements by failing to inform the applicants of the remedies open to them upon refusal of a confirmatory application, as provided for in Article 8 of Regulation (EC) No 1049/2001.

Finally, the contested decision breaches the principles of democracy, transparency, proportionality, equality and non-discrimination by refusing access to public documentation when such documentation was previously available to applicants under Regulation (EC) No 1049/2001.

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

(2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8, p. 1.

Action brought on 29 April 2010 — Avery Dennison Corp. v OHIM — Dennison Hesperia (AVERY DENNISON)

(Case T-200/10)

(2010/C 161/88)

Language in which the application was lodged: Spanish

Parties

Applicant: Avery Dennison Corp. (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Dennison Hersperia, S.A. (Torrejón de Ardoz, Spain)

Form of order sought

—	annul or, in the alternative, amend the Decision of the Second Board of Appeal of OHIM of 9 February 2010 in case R 798/2009-2;

—	order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Avery Dennison Corp.

Community trade mark concerned: Word mark ‘AVERY DENNISON’ (Application No 3 825 114) for goods and services in Classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 17, 19, 20, 22, 24, 28, 35, 37, 38, 39, 40, 41 and 42

Proprietor of the mark or sign cited in the opposition proceedings: Dennison Hesperia, S.A.

Mark or sign cited in opposition: Spanish trade mark ‘DENNISON’ (No 1 996 088) for goods in Class 16.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation of Articles 42(2) and (3) and, in the alternative, Article 8(1)(b) of Regulation No 207/09 on the Community trade mark.

Order of the General Court of 16 April 2010 — DB Schenker Rail Deutschland v Commission

(Case T-109/04) (1)

(2010/C 161/89)

Language of the case: German

The President of the Eighth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 146, 29.5.2004.

Order of the General Court of 13 April 2010 — Unity OSG FZE v Council

(Case T-511/08) (1)

(2010/C 161/90)

Language of the case: English

The President of the Second Chamber has ordered that the case be removed from the register.

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(1)  OJ C 32, 7.2.2009.