4.12.2010

Official Journal of the European Union

C 328/2

Judgment of the Court (Fourth Chamber) of 6 October 2010 — European Commission v Kingdom of Belgium

(Case C-222/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC (‘Universal Service’ Directive) - Electronic communications - Networks and services - Article 12 - Costing of universal service obligations - Social component of universal service - Article 13 - Financing of universal service obligations - Determination of whether an ‘unfair burden’ exists)

2010/C 328/02

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: H. van Vliet and A. Nijenhuis, Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne and M. Jacobs, Agents, assisted by S. Depré, lawyer)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Articles 12(1), 13(1) and Annex IV, Part I, of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (‘Universal Service’ Directive) (OJ 2002 L 108, p. 51) — Social component of universal service — Designation of undertakings — Provision of particular tariff conditions — Lack of transparency

Operative part of the judgment

The Court:

Declares that,

—	first, by failing to take into consideration, in the calculation of the net cost of provision of the social component of universal service, the market benefits, including intangible benefits, accruing to the undertakings responsible, and

—

second, by making a general finding on the basis of the calculation of the net costs of the erstwhile sole provider of universal service that all undertakings now responsible for the provision of universal service are in fact subject to an unfair burden on account of that provision and by having done so without carrying out a specific assessment both of the net cost which the provision of universal service represents for each operator concerned and of all the characteristics particular to each operator, including the quality of its equipment or its economic and financial situation,

the Kingdom of Belgium has failed to fulfil its obligations under Articles 12(1) and 13(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive);

2.	Dismisses the action as to the remainder;

3.	Orders the Kingdom of Belgium to pay two thirds of the costs and orders the European Commission to pay one third of the costs.

(1) OJ C 209, 15.8.2008.

4.12.2010

Official Journal of the European Union

C 328/2

Judgment of the Court (Fourth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Grondwettelijk Hof (Belgium)) — Base NV, Euphony Benelux NV, Mobistar SA, Uninet International NV, T2 Belgium NV, KPN Belgium NV v Ministerraad

(Case C-389/08) (1)

(Electronic communications - Directive 2002/21/EC (‘Framework’ Directive) - Articles 2(g), 3 and 4 - National regulatory authority - National legislature acting as national regulatory authority - Directive 2002/22/EC (‘Universal Service’ Directive) - Networks and services - Article 12 - Costing of universal service obligations - Social component of universal service - Article 13 - Financing of universal service obligations - Determination of whether an ‘unfair burden’ exists)

2010/C 328/03

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicants: Base NV, Euphony Benelux NV, Mobistar SA, Uninet International NV, T2 Belgium NV, KPN Belgium NV

Defendant: Ministerraad

Intervener: Belgacom NV

Re:

Reference for a preliminary ruling — Grondwettelijk Hof — Belgium — Interpretation of Article 12 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Calculation of the cost of universal service obligations — No assessment on a case-by-case basis

Operative part of the judgment

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) does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by those directives and that its decisions in the exercise of that function can be made the object of an effective appeal to a body independent of the parties involved, which it is for the Grondwettelijk Hof to determine.

Article 12 of Directive 2002/22 does not preclude a national regulatory authority from determining generally and on the basis of the calculation of the net costs of the universal service provider which was previously the sole provider of that service that the provision of universal service may represent an ‘unfair burden’ for those undertakings designated as universal service providers.

Article 13 of Directive 2002/22 precludes that authority from deciding in the same way and on the basis of the same calculation that those undertakings are effectively subject to an unfair burden because of that provision, without having undertaken a specific examination of the situation of each of them.

(1) OJ C 285, 8.11.2008.

4.12.2010

Official Journal of the European Union

C 328/3

Judgment of the Court (Grand Chamber) of 5 October 2010 — European Commission v French Republic

(Case C-512/08) (1)

(Failure of a Member State to fulfil obligations - Article 49 EC - Social security - Medical treatment proposed in another Member State and requiring the use of major medical equipment - Requirement of prior authorisation - Planned treatment provided in another Member State - Difference in the levels of cover in force in the Member State of affiliation and in the Member State of stay, respectively - Insured person’s right to assistance by the competent institution to supplement that of the institution of the Member State of stay)

2010/C 328/04

Language of the case: French

Parties

Applicant: European Commission (represented by: N. Yerrell, G. Rozet and E. Traversa, acting as Agents)

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

Interveners in support of the defendants: Kingdom of Spain (represented by J.M. Rodríguez Cárcamo, acting as Agent), Republic of Finland (represented by A. Guimaraes-Purokoski, acting as Agent), United Kingdom of Great Britain and Northern Ireland (represented by I. Rao, and subsequently by S. Ossowski, acting as Agents, assisted by M.-E. Demetriou, Barrister)

Re:

Failure to fulfil obligations — Infringement of Article 49 EC — Requirement of prior authorisation, from the State of insurance, in order to obtain repayment for certain non-hospital treatment received in another Member State — Failure to pay the difference between the amount received by the insured, who receives hospital treatment in a Member State other than the Member State of insurance, and the amount to which he would have been entitled had he received the same treatment in the Member State of insurance — Unjustified obstacles to the freedom to provide services

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs;

3.	Orders the Kingdom of Spain, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 44, 21.2.2009.

4.12.2010

Official Journal of the European Union

C 328/4

Judgment of the Court (Second Chamber) of 7 October 2010 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium)) — Criminal proceedings against Vítor Manuel dos Santos Palhota, Mário de Moura Gonçalves, Fernando Luis das Neves Palhota, Termiso Limitada

(Case C-515/08) (1)

(Freedom to provide services - Articles 56 TFEU and 57 TFEU - Posting of workers - Restrictions - Employers established in another Member State - Registration of prior declaration of posting - Social or labour documents - Equivalent to those provided for under the law of the host Member State - Copy - Keeping available to the national authorities)

2010/C 328/05

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties in the main proceedings

Vítor Manuel dos Santos Palhota, Mário de Moura Gonçalves, Fernando Luis das Neves Palhota, Termiso Limitada

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Antwerpen — Interpretation of Articles 49 EC and 50 EC — National legislation requiring construction sector undertakings carrying out works in a Member State on a temporary basis to provide a declaration of posting to the authorities in the host country

Operative part of the judgment

Articles 56 TFEU and 57 TFEU preclude national legislation requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to send a prior declaration of posting, in so far as the employer must be notified of a registration number for the declaration before the planned posting may take place and the national authorities of that first State have a period of five working days from receipt of the declaration to issue that notification.

Articles 56 TFEU and 57 TFEU do not preclude national legislation requiring an employer, established in another Member State and posting workers to the territory of the first Member State, to keep available to the national authorities of the latter, during the posting, copies of documents equivalent to the social or labour documents required under the law of the first Member State and also to send those copies to the authorities at the end of that period.

(1) OJ C 44, 21.2.2009.

4.12.2010

Official Journal of the European Union

C 328/4

Judgment of the Court (Second Chamber) of 7 October 2010 (References for a preliminary ruling from the House of Lords, United Kingdom) — Commissioners for Her Majesty’s Revenue and Customs v Loyalty Management UK Ltd (C-53/09), Baxi Group Ltd (C-55/09)

(Joined Cases C-53/09 and C-55/09) (1)

(Sixth VAT Directive - Taxable amount - Sales promotion scheme - Loyalty rewards scheme allowing customers to earn points from traders and to redeem them for loyalty rewards - Payments made by the operator of the scheme to redeemers supplying the loyalty rewards - Payments made by the trader to the operator of the scheme supplying the loyalty rewards)

2010/C 328/06

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Commissioners for Her Majesty’s Revenue and Customs

Defendants: Loyalty Management UK Ltd (C-53/09), Baxi Group Ltd (C-55/09)

Re:

References for a preliminary ruling — House of Lords — Interpretation of Articles 5, 6, 11A(1)(a) and 17(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Taxable amount — Loyalty rewards scheme allowing users to earn points from participating traders and to redeem them for rewards or vouchers with approved traders — Redemption of points giving rise to payment by the operator of the scheme to the approved trader concerned — Loyalty rewards scheme enabling customers of a taxable undertaking to collect points when making purchases and to exchange them for rewards offered by a third party advertising and marketing company responsible for operating the scheme — Exchange of points entitling that third party company to payments by the taxable person corresponding to the recommended retail price of the reward goods.

Operative part of the judgment

In relation to a customer loyalty rewards scheme such as those at issue in the cases in the main proceedings, Articles 5, 6, 11A(1)(a) and — in the version resulting from Article 28f(1) — 17(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 95/7/EC of 10 April 1995, must be interpreted as meaning that:

—

payments made by the operator of the scheme concerned to redeemers who supply loyalty rewards to customers must be regarded, in Case C-53/09, as being the consideration, paid by a third party, for a supply of goods to those customers or, as the case may be, a supply of services to them. It is, however, for the referring court to determine whether those payments also include the consideration for a supply of services corresponding to a separate service; and

—

payments made by the sponsor to the operator of the scheme concerned who supplies loyalty rewards to customers must be regarded, in Case C-55/09, as being, in part, the consideration, paid by a third party, for a supply of goods to those customers and, in part, the consideration for a supply of services made by the operator of that scheme for the benefit of that sponsor.

(1) OJ 2009 C 90, 18.4.2009.

OJ 2010 C 148, 5.6.2010.

4.12.2010

Official Journal of the European Union

C 328/5

Judgment of the Court (Third Chamber) of 7 October 2010 — European Commission v Portuguese Republic

(Case C-154/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Electronic communications - Networks and services - Articles 3(2) and 8(2) - Designation of undertakings responsible for universal service obligations - Incorrect transposition)

2010/C 328/07

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Guerra e Andrade and A. Nijenhuis, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, Agent and L. Morais, lawyer)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 3(2) and 8(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Designation of undertakings responsible for universal service obligations

Operative part of the judgment

The Court:

Declares that, by failing to correctly transpose into national law the provisions of European Union law governing the designation of universal service provider(s) and, in any event, by failing to ensure in practice that those provisions are applied, the Portuguese Republic has failed to fulfil its obligations under Articles 3(2) and 8(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive).

2.	Orders the Portuguese Republic to pay the costs.

(1) OJ C 153, 4.7.2009.

4.12.2010

Official Journal of the European Union

C 328/5

Judgment of the Court (Third Chamber) of 7 October 2010 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Secretary of State for Work and Pensions v Taous Lassal

(Case C-162/09) (1)

(Reference for preliminary ruling - Freedom of movement for persons - Directive 2004/38/EC - Article 16 - Right of permanent residence - Temporal application - Periods completed before the date of transposition)

2010/C 328/08

Language of the case: English

Referring court

Court of Appeal (England and Wales) (Civil Division)

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendant: Taous Lassal

In the presence of: The Child Poverty Action Group

Re:

Interpretation of Article 16(1) of Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Citizen of the Union who resided lawfully in the United Kingdom for five years prior to 30 April 2006, the last date for transposition of the directive, and then left the territory for a period of 10 months — Taking into account of the period ending prior to 30 April 2006 for the purposes of entitlement to the grant of a permanent right of residence

Operative part of the judgment

Article 16(1) and (4) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that:

—

continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely 30 April 2006, in accordance with earlier European Union law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and

—

absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1) thereof.

(1) OJ C 153, 4.7.2009.

4.12.2010

Official Journal of the European Union

C 328/6

Judgment of the Court (Grand Chamber) of 5 October 2010 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa

(Case C-173/09) (1)

(Social security - Freedom to provide services - Sickness insurance - Hospital treatment provided in another Member State - Prior authorisation - Conditions of application of the second subparagraph of Article 22(2) of Regulation (EEC) No 1408/71 - Methods of reimbursement to the insured person of hospital expenses incurred in another Member State - Obligation on a lower court to comply with the directions of a higher court)

2010/C 328/09

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Georgi Ivanov Elchinov

Defendant: Natsionalna zdravnoosiguritelna kasa

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Art. 49 of the EC Treaty and Art. 22(1)(c) and (2), second para., of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) — Sickness insurance — National institution for sickness expenses refusing authorisation (Form E 112) for obtaining more effective medical treatment in a Member State other than that in which the insured patient is resident — Presumption of a necessary connection between that financing and the existence of that type of treatment in national territory — Meaning of ‘treatment which cannot be provided to the person concerned in the Member State of residence’ — Rules for authorisation of financing and system applicable to the repayment of costs incurred — Duty of a lower national court to comply with instructions on interpretation from a higher court which it considers contrary to Community law

Operative part of the judgment

European Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law.

Articles 49 EC and 22 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, preclude a rule of a Member State which is interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation.

With regard to medical treatment which cannot be given in the Member State on whose territory the insured person resides, the second subparagraph of Article 22(2) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that that authorisation required under Article 22(1)(c)(i) cannot be refused:

—

if, where the list of benefits for which the national legislation provides does not expressly and precisely specify the treatment method applied but defines types of treatment reimbursed by the competent institution, it is established, applying the usual principles of interpretation and on the basis of objective and non-discriminatory criteria, taking into consideration all the relevant medical factors and the available scientific data, that the treatment method in question corresponds to types of treatment included in that list, and

—	if no alternative treatment which is equally effective can be given without undue delay in the Member State on whose territory the insured person resides.

That article precludes the national bodies called upon to rule on an application for prior authorisation from presuming, in the application of that provision, that the hospital treatment which cannot be given in the Member State on whose territory the insured person resides is not included in the benefits for which reimbursement is provided for by the legislation of that State or, conversely, that the hospital treatment included in those benefits can be given in that Member State.

Where it is established that a refusal to issue the authorisation required under Article 22(1)(c)(i) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, was unjustified, when the hospital treatment has been completed and the related expenses incurred by the insured person, the national court must oblige the competent institution, in accordance with national procedural rules, to reimburse that insured person in the amount which it would ordinarily have paid if authorisation had been properly granted.

That amount is equal to that determined in accordance with the provisions of the legislation to which the institution of the Member State on whose territory the hospital treatment was given is subject. If that amount is less than that which would have resulted from application of the legislation in force in the Member State of residence if hospital treatment had been provided there, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution.

(1) OJ C 180, 1.8.2009.

4.12.2010

Official Journal of the European Union

C 328/7

Judgment of the Court (First Chamber) of 7 October 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland)) — Kronospan Mielec sp. z o.o. v Dyrektor Izby Skarbowej w Rzeszowie

(Case C-222/09) (1)

(Sixth VAT Directive - Article 9(2)(c) and (e) - Research and development work carried out by engineers - Determination of the place where services are supplied)

2010/C 328/10

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Kronospan Mielec sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Rzeszowie

Re:

Reference for a preliminary ruling — Naczelncy Sąd Administracyjny — Interpretation of the first indent of Article 9(2)(c) and of the third indent of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), and of Articles 52(a) and 56(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Determination, for taxation purposes, of the place where services are supplied — Research and development services provided to a taxable person established in the European Community but outside the Member State in which those services were physically carried out — Classification of those services as either ‘scientific activities’ or ‘services of engineers’

Operative part of the judgment

Services consisting of research and development work relating to the environment and technology, carried out by engineers established in one Member State on a contract basis for the benefit of a recipient established in another Member State, must be classified as ‘services of engineers’ within the meaning of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.

(1) OJ C 220, 12.9.2009.

4.12.2010

Official Journal of the European Union

C 328/8

Judgment of the Court (Fifth Chamber) of 7 October 2010 (reference for a preliminary ruling from the Tribunale di Bolzano — Italy) — Criminal proceedings against Martha Nussbaumer

(Case C-224/09) (1)

(Reference for a preliminary ruling - Directive 92/57/EEC - Implementation of minimum safety and health requirements on temporary and mobile construction sites - Article 3 - Requirement to appoint a coordinator for safety and health matters and draw up a safety and health plan)

2010/C 328/11

Language of the case: Italian

Referring court

Tribunale di Bolzano

Party in the main proceedings

Martha Nussbaumer

Re:

Reference for a preliminary ruling — Tribunale di Bolzano — Interpretation of Article 3 of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 245, p. 6) — Private works not subject to planning permission — Derogation from the requirement to appoint a coordinator for safety and health matters during the project preparation stage or during the execution of the works

Operative part of the judgment

The Court:

Article 3 of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) must be interpreted as follows:

—

Article 3(1) precludes national legislation under which, for private works not subject to planning permission on a construction site on which more than one contractor is to be present, it is possible to derogate from the requirement imposed on the client or project supervisor to appoint a coordinator for safety and health matters at the project preparation stage or, in any event, before the works commence;

—

Article 3(2) precludes national legislation under which the requirement for the coordinator responsible for the execution stage of the works to draw up a safety and health plan is confined to the situation in which more than one contractor is engaged on a construction site involving private works that are not subject to that obligation and which does not use the particular risks such as those listed in Annex II to the directive as criteria for that requirement.

(1) OJ C 205, 29.8.2009.

4.12.2010

Official Journal of the European Union

C 328/8

Judgment of the Court (Fifth Chamber) of 7 October 2010 (reference for a preliminary ruling from the Augstākās Tiesas Senāts — Republic of Latvia) — Stils Met SIA v Valsts ieņēmumu dienests

(Case C-382/09) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Chapter 73 - Steel strands, ropes and cables - Heading 7312 - TARIC code - Error in the tariff classification - Release of goods for free circulation - Regulation (EC) No 384/96 - Anti-dumping duties - Fine of an amount equal to the total anti-dumping duties)

2010/C 328/12

Language of the case: Latvian

Referring court

Augstākās Tiesas Senāts

Parties to the main proceedings

Applicant: Stils Met SIA

Defendant: Valsts ieņēmumu dienests

Re:

Reference for a preliminary ruling — Augstākās tiesas Senats — Interpretation of Chapter 73 of 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 (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) and by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Interpretation of Article 14(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) — Stranded wire, ropes and cables, of steel, not coated or only plated or coated with zinc, whatever their chemical composition, in particular of alloy steel, not consigned from Moldova or Morocco — Classification under headings 7312108219, 7312108419 and 7312108619 of the Combined Nomenclature in 2004 and 2005 — National legislation providing for a penalty in a sum equal to that of the antidumping duty

Operative part of the judgment

The Integrated Tariff of the European Communities established by Article 2 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version applying in 2004 and 2005, must be interpreted as meaning that ropes and cables of steel, other than stainless steel, not coated or only plated or coated with zinc, with a maximum cross-sectional dimension exceeding 3 mm but not exceeding 48 mm, not consigned either from Moldova or from Morocco, fall within TARIC codes 7312108219, 7312108419 or 7312108619, depending on their cross-sectional dimension;

Article 14(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community must be interpreted as not precluding legislation of a Member State which provides for the imposition, in the event of an error in the tariff classification of goods imported into the customs territory of the European Union, of a fine equal to the total amount of the anti-dumping duties applicable to those goods, provided that the conditions in accordance with which the amount of the fine is to be set are analogous to those applicable to infringements of national law of a similar nature and importance and which make the penalty effective, proportionate and dissuasive, a matter which it is for the referring court to determine.

(1) OJ C 297, 5.12.2009.

4.12.2010

Official Journal of the European Union

C 328/9

Judgment of the Court (Fifth Chamber) of 7 October 2010 — European Commission v Republic of Slovenia

(Case C-49/10) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 2008/1/EC - Integrated pollution prevention and control - Requirements for the granting of permits for existing installations - Failure to transpose within the prescribed period)

2010/C 328/13

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, acting as Agent)

Defendant: Republic of Slovenia (represented by: N. Pintar Gosenca, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8) — Requirements for the granting of permits for existing installations — Obligation to ensure that such installations operate in accordance with the requirements of the directive

Operative part of the judgment

The Court:

Declares that, by failing to adopt, within the prescribed period, all the measures necessary as far as concerns permits for industrial installations, in accordance with Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, the Republic of Slovenia has failed to fulfil its obligations under that directive;

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

(1) OJ C 80, 27.3.2010.

4.12.2010

Official Journal of the European Union

C 328/9

Judgment of the Court (Seventh Chamber) of 7 October 2010 — European Commission v Hellenic Republic

(Case C-127/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/42/EC on machinery - Failure to transpose within the prescribed period)

2010/C 328/14

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Karanasou Apostolopoulu and G. Zavvos, acting as Agents)

Defendant: Hellenic Republic (represented by: N. Dafniou, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (recast)

Operative part of the judgment

The Court:

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, the Hellenic Republic has failed to fulfil its obligations under that directive;

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 113, 1.5.2010.

4.12.2010

Official Journal of the European Union

C 328/10

Judgment of the Court (Third Chamber) of 5 October 2010 (reference for a preliminary ruling from the Supreme Court (Ireland)) — J. McB. v L. E.

(Case C-400/10 PPU) (1)

(Judicial cooperation in civil matters - Matrimonial matters and matters of parental responsibility - The Hague Convention of 25 October 1980 on the civil aspects of international child abduction - Regulation (EC) No 2201/2003 - Children whose parents are not married - Father’s rights of custody - Interpretation of ‘rights of custody’ - General principles of law and Charter of Fundamental Rights of the European Union)

2010/C 328/15

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: J. McB.

Defendant: L. E.

Re:

Reference for a preliminary ruling — Supreme Court — Interpretation of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Child whose parents are not married — Father’s rights of custody — National legislation requiring the father to obtain an order from the court with jurisdiction in order to have rights of custody in respect of the child which render wrongful the child’s removal or retention outside the child’s country of habitual residence.

Operative part of the judgment

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that regulation

(1) OJ C 260, 25.9.2010.

4.12.2010

Official Journal of the European Union

C 328/10

Action brought on 22 July 2010 — European Commission v Kingdom of the Netherlands

(Case C-368/10)

()

2010/C 328/18

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: C. Zadra and F. Wilman)

Defendant: Kingdom of the Netherlands

Form of order sought

—

Declare that, by virtue of the fact that in the course of the award of a public contract for the supply and management of automatic coffee machines, published under No 2004/S 158-213630, the contracting authority

—	inserted in the technical specification a requirement for the Max Havelaar and EKO-keurmerk, or in any event marks with a similar or the same basis, thus contrary to Article 23(6) and (8) of Directive 2004/18/EC, (1)

—	included, for appraising the ability of operators, criteria and evidence concerning sustainable purchasing and socially responsible undertakings, thus contrary to Article 48(1) and (2), Article 44(2), and in any event Article 2, of that directive,

—	included, when formulating the award criteria, a reference to the Max Havelaar and/or EKO-keurmerk, or in any event marks with the same basis, thus contrary to Article 53(1) of that directive,

the Kingdom of the Netherlands has failed to fulfil its obligations under Directive 2004/18/EC;

—	order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission submits that, in the context of a public procurement procedure published by a Province for the supply and management of automatic coffee machines, the Netherlands has failed to fulfil its obligations under European Union law in regard to public contracts, in particular Directive 2004/18/EC. The infringements of that directive relate to Article 23(6) and (8) with regard to technical specifications, Article 48(1) and (2), Article 44(2), or in any event Article 2, with regard to appraisal of the abilities of operators, and Article 53(1) with regard to the award criteria.

(1) Directive 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).

4.12.2010

Official Journal of the European Union

C 328/11

Reference for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 26 July 2010 — National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond (kantoor Rotterdam)

(Case C-371/10)

()

2010/C 328/19

Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Applicant: National Grid Indus BV

Defendant: Inspecteur van de Belastingdienst Rijnmond (kantoor Rotterdam)

Question referred

If a Member State imposes on a company incorporated under the law of that Member State, which transfers its real company seat from that Member State to another Member State, a final settlement tax in respect of that transfer, can that company, in the present state of Community law, invoke Article 43 EC (now Article 49 TFEU) against that Member State?

If the first question must be answered in the affirmative: is a final settlement tax such as the one at issue, which is applied, without deferment and without the possibility of taking subsequent decreases in value into consideration, to the capital gains relating to the assets of the company which were transferred from the exit Member State to the host Member State, as assessed at the time of the transfer of the company seat, contrary to Article 43 EC (now Article 49 TFEU), in the sense that such a final settlement tax cannot be justified by the necessity of allocating the power to impose taxes between the Member States?

Does the answer to the previous question also depend on the circumstance that the final settlement tax in question relates to a (currency) profit which accrued under the tax jurisdiction of the Netherlands, whereas that profit cannot be reflected in the host Member State under the tax regime applicable there?

4.12.2010

Official Journal of the European Union

C 328/12

Action brought on 2 August 2010 — European Commission v Republic of Austria

(Case C-387/10)

()

2010/C 328/20

Language of the case: German

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, acting as Agents)

Defendant: Republic of Austria

Form of order sought

The European Commission claims that the Court should:

—

declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC and Article 36 of the EEA Agreement by adopting and retaining provisions under which only national financial institutions or national business trustees may be appointed as tax representatives of investment or real property investment funds;

—	order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission takes the view that provisions under which only national financial institutions or national business trustees may be appointed as tax representatives of investment or real property investment funds constitute an establishment requirement which restricts the freedom to provide services.

Contrary to the view taken by Austria, the disputed provisions are neither suitable for improving the quality of tax representation nor for protecting the interests of investors and the fiscal administration in proper compliance with tax obligations. It is thus not possible to discern a justification for the restriction on the freedom to provide services.

4.12.2010

Official Journal of the European Union

C 328/12

Action brought on 27 August 2010 — European Commission v French Republic

(Case C-428/10)

()

2010/C 328/21

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Braun and L. de Schietere de Lophem, acting as Agent)

Defendant: French Republic

Form of order sought

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (1) or, in any event, by not communicating them to the Commission, the French Republic has failed to fulfil its obligations under that directive;

—	order French Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2007/36/EC expired on 3 August 2009. On the date on which the present action was brought, the defendant had not yet taken all the measures necessary to transpose the directive or, in any event, it had not notified the Commission thereof.

(1) OJ 2007 L 184, p. 17.

4.12.2010

Official Journal of the European Union

C 328/12

Reference for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 13 September 2010 — Belgian State — SPF Finances v BLM SA

(Case C-436/10)

()

2010/C 328/22

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicant: Belgian State — SPF Finances

Defendant: BLM SA

Question referred

Must Articles 6(2)(a) and 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) be interpreted as precluding national legislation which treats as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), the private use by a director and his family of part of a building constructed or owned under a right in rem in that property by a taxable legal person, where the input tax on that asset is deductible?

(1) OJ 1997 L 145, p. 1

4.12.2010

Official Journal of the European Union

C 328/13

Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — Lilia Druțu v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

(Case C-438/10)

()

2010/C 328/23

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Applicant: Lilia Druțu

Defendants: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

Questions referred

Does the first paragraph of Article 110 TFUE (formerly Article 90 EC) preclude the levying of a domestic tax on the registration for the first time in Romania of motor vehicles already registered in another Member State of the European Union, while motor vehicles already registered in Romania may be the subject of transactions without the imposition of such a tax?

Since the second paragraph of Article 110 TFEU is intended to eliminate factors liable to protect the national market and infringe the principles of competition which govern the Community market, does the introduction of exemptions from the obligation to pay the pollution tax, whose scope also covers motor vehicles produced in Romania, constitute a measure to protect the national motor vehicle manufacturing sector?

4.12.2010

Official Journal of the European Union

C 328/13

Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — SC DRA SPEED Srl v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

(Case C-439/10)

()

2010/C 328/24

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Appellant: SC DRA SPEED SRL

Respondents: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

Questions referred

Does the first paragraph of Article 110 TFEU (formerly Article 90 EC), under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, preclude the establishment of a pollution tax for motor vehicles which is levied upon the first registration in the territory of a Member State, which has the characteristics specified by Government Emergency Order No 50/2008 and which may constitute an internal tax on goods coming from other Member States, account being taken of the fact that the tax is not levied upon the re-registering in Romania of a motor vehicle which has the same characteristics as an imported second-hand motor vehicle?

Does the second paragraph of Article 110 TFEU (formerly Article 90 EC), under which no Member State may impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products, preclude the establishment of a pollution tax for motor vehicles which is levied upon the first registration in the territory of a Member State and which has the characteristics specified by Government Emergency Order No 50/2008, account being taken of the fact that exemption from payment of the pollution tax was granted under Government Emergency Order No 218/2008 for the category of motor vehicle which possesses the technical characteristics of the motor vehicles manufactured in Romania?

4.12.2010

Official Journal of the European Union

C 328/14

Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — SC SEMTEX Srl v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

(Case C-440/10)

()

2010/C 328/25

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Appellant: SC SEMTEX Srl

Respondents: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

Questions referred

4.12.2010

Official Journal of the European Union

C 328/14

Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — Ioan Anghel v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

(Case C-441/10)

()

2010/C 328/26

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Appellant: Ioan Anghel

Respondents: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

Questions referred

4.12.2010

Official Journal of the European Union

C 328/15

Appeal brought on 15 September 2010 by Télévision française 1 SA (TF1) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Joined Cases T-568/08 and T-573/08 M6 and TF1 v Commission

(Case C-451/10 P)

()

2010/C 328/27

Language of the case: French

Parties

Appellant: Télévision française 1 SA (TF1) (represented by: J.-P Hordies, lawyer)

Other parties to the proceedings: Métropole télévision (M6), Canal +, European Commission, French Republic, France Télévisions

Form of order sought

—	declare the present appeal admissible and well-founded;

—	set aside the judgment delivered by the General Court of the European Union on 1 July 2010 in Joined Cases T-568/08 and T-573/08, M6 and TF1 v Commission;

—	order the Commission to pay all the costs.

Pleas in law and main arguments

The appellant relies on two pleas in support of its appeal.

Télévision française 1 SA (TF1) criticises the General Court for having disregarded, confirming the Commission’s position in that respect, the existence of serious difficulties in assessing the compatibility with the common market of aid received by France Télévisions, difficulties which should have led to the initiation of a formal investigation procedure provided for in Article 108(2) TFEU. Therefore, by its first plea, the appellant relies on infringement of rules relating to the burden of proof and the taking of evidence in that the General Court requested the applicants to adduce evidence that serious doubts existed as to the actual use to which the endowment notified was put, rather than accepting the evidence that the aid had not been allocated.

By its second plea, the appellant submits that the General Court erred in law in applying Article 106(2) TFEU holding, first, that the falls in advertising revenue, even caused by management errors, could be offset by State aid and, second, by stating that the application of Article 106(2) did not require an assessment of the efficient functioning of public service.

4.12.2010

Official Journal of the European Union

C 328/15

Reference for a preliminary ruling from the Okresný súd Prešov lodged on 16 September 2010 — Jana Pereničová, Vladislav Perenič v S.O.S. financ, spol. sro

(Case C-453/10)

()

2010/C 328/28

Language of the case: Slovakian

Referring court

Okresný súd Prešov

Parties to the main proceedings

Applicants: Jana Pereničová, Vladislav Perenič

Defendant: S.O.S. financ, spol. sro

Questions referred

Is the scope of consumer protection under Article 6(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘Directive 93/13/EEC’) such as to make it possible, where unfair contractual clauses are found in a consumer contract, to conclude that the contract as a whole is not binding on the consumer, if that is more advantageous to the consumer?

Are the criteria determining what is an unfair commercial practice in accordance with European Parliament and Council Directive 2005/29/EC (2) of 11 May 2005 concerning unfair business to consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council such as to permit the conclusion that, if a supplier quotes in the contract a lower annual percentage rate (APR) than is in fact the case, it is possible to regard that step by the supplier towards the consumer as an unfair commercial practice? If there is a finding of an unfair commercial practice, does Directive 2005/29/EC permit there to be any impact on the validity of a credit agreement and on the achievement of the objective in Article 4(1) and Article 6(1) of Directive 93/13, if invalidity of the contract is more advantageous for the consumer?

(1) OJ L 112, p. 29.

(2) OJ L 149, p. 22.

4.12.2010

Official Journal of the European Union

C 328/16

Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 17 September 2010 — G.A.P. Peeters-van Maasdijk v Raad van Bestuur van het Uitvoeringsinstituut werknemersverzekeringen

(Case C-455/10)

()

2010/C 328/29

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Appellant: G.A.P. Peeters-van Maasdijk

Respondent: Raad van Bestuur van het Uitvoeringsinstituut werknemersverzekeringen

Questions referred

Must Article 71(1)(b) of Regulation (EEC) No 1408/71 (1) be interpreted as meaning that it also applies to a worker who, after her last employment, but while in receipt of a work incapacity benefit, transfers her place of residence in a border region to a Member State other than the competent Member State?

Must Article 45 TFEU and/or Article 21 TFEU be interpreted as meaning that a national provision, such as Article 19(1)(f) of the Werkloosheidswet (Netherlands Law on unemployment), which makes the revival of entitlement to unemployment benefit conditional on the place of residence of the person concerned being within the territory of the Netherlands, even if that person lives just a short distance from the Netherlands border and is entirely focused on the Netherlands labour market, is compatible with those articles?

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

4.12.2010

Official Journal of the European Union

C 328/16

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 17 September 2010 — Asociación Nacional De Expendedores De Tabaco y Timbre (ANETT) v Administración Del Estado

(Case C-456/10)

()

2010/C 328/30

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Asociación Nacional De Expendedores De Tabaco y Timbre (ANETT)

Defendant: Administración Del Estado

Question referred

Should Article 34 of the Treaty on the Functioning of the European Union (ex Article 28 EC) be interpreted as meaning that the prohibition imposed under Spanish national law on tobacco outlet licence holders against engaging in the activity of importing manufactured tobacco products from other Member States constitutes a quantitative restriction on imports or a measure having equivalent effect as prohibited by the Treaty?

4.12.2010

Official Journal of the European Union

C 328/16

Appeal brought on 21 September 2010 by Luigi Marcuccio against the order of the General Court (Sixth Chamber) of 6 July 2010 in Case T-401/09 Marcuccio v Court of Justice

(Case C-460/10 P)

()

2010/C 328/31

Language of the case: Italian

Parties

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

Other party to the proceedings: Court of Justice of the European Union

Form of order sought

The appellant claims that the Court should:

—	set aside in its entirety and without exception the order of 6 July 2010 of the General Court (Sixth Chamber) in Case T-401/09 Marcuccio v Court of Justice.

—	declare that the action at first instance, in relation to which the order under appeal was made, was admissible in its entirety and without exception;

—

allow in its entirety and without any exception whatsoever the relief sought at first instance and order the defendant at first instance to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to all proceedings, including the present appeal proceedings;

—	in the alternative, refer the case back to the court at first instance, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The order under appeal is unlawful, on the following grounds, inter alia: (a) incorrect and unreasonable interpretation and application of the principle of law relating to Aquilian liability and illogical and unreasoned failure to have regard to the relevant case-law of the European Union; (b) total failure to state reasons, manifest error of assessment, distortion of facts, incomplete and incorrect assessment of the evidence adduced by the appellant, infringement of the the obligation of clare loqui and irrelevant, self-evident, arbitrary, illogical, irrational and unreasonable reasoning; (c) failure to rule on fundamental aspects of the case and total absence of preliminary enquiries; (d) failure to comply with the duty on the part of the court to base its rulings, including in relation to its assessment of the evidence, on the concepts of common knowledge, experience and feeling; (e) incorrect and unreasonable interpretation and application of the rules of law relating to the burden of proof.

4.12.2010

Official Journal of the European Union

C 328/17

Appeal brought on 27 September 2010 by Deutsche Post AG against the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08 Deutsche Post AG v European Commission

(Case C-463/10 P)

()

2010/C 328/32

Language of the case: German

Parties

Appellant: Deutsche Post AG (represented by: J. Sedemund and T. Lübbig, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

—	Set aside in its entirety the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08;

—	reject the plea of inadmissibility raised by the Commission before the General Court;

—	annul the decision of the European Commission of 30 October 2008 concerning the ‘information injunction’ pursuant to Article 10(3) of Regulation (EC) No 659/1999 in the proceedings ‘State aid C 36/2007 — Germany; State aid to Deutsche Post AG’;

—	order the Commission to pay the costs.

Pleas in law and main arguments

This appeal has been brought against the order of the General Court dismissing as inadmissible the appellant’s action against the Commission’s information injunction of 30 October 2008 addressed to the Federal Republic of Germany in proceedings concerning State aid to the appellant.

The main issue in the present appeal is whether, and under what conditions, an information injunction of the Commission pursuant to Article 10(3) of Regulation (EC) No 659/1999 may be challenged. In the appellant’s view, an action against a decision requesting information to be supplied that is available only to the appellant is admissible if it casts doubt on compliance with the procedural requirements of Article 10(3) of Regulation No 659/1999 and on the necessity of the information required.

By contrast, the General Court denied that such an action is admissible, in essence, on the basis that an information injunction has no legal consequences. It is merely an interim measure which is only preparatory to a final decision.

The appellant puts forward five grounds of appeal.

The General Court is said to have failed in the order under appeal to recognise that, as legally binding acts of the European Union, information injunctions are subject to review by the Courts of the Union. The Member State is under a binding obligation, under Article 10(3) of Regulation No 659/1999 in conjunction with the fourth paragraph of Article 288 TFEU, and in accordance with the principle of sincere cooperation under Article 4(3) TEU, to supply the information required. Since the Member State is obliged to implement the decision, the duty to provide information is passed directly to the appellant who (alone) is in possession of the information requested.

Furthermore, the General Court failed to recognise that it would be incompatible with the guarantee of judicial protection under European Union law if a Member State and a directly affected undertaking were obliged to supply whatever information the Commission might request under Article 10(3) of Regulation No 659/1999, without any consideration being given as to whether the procedural requirements of Article 10(3) had been complied with and as to whether the information was in any way related to the purpose of the State aid control procedure.

The General Court misinterpreted Article 10(3) and the third sentence of Article 13(1) of Regulation No 659/1999 in that it failed to recognise that the information decision has direct legal consequences for the legal position of the Member State and the undertaking concerned not least because the third sentence of Article 13(1) of Regulation No 659/1999 enables the Commission to take a decision concerning possible State aid on the basis of the information available if a Member State fails to comply with an information injunction. The consequent relaxation of the Commission’s burden of proof has the effect of considerably worsening the procedural position of the undertaking concerned, which is effectively forced to supply the information sought in order to protect its rights.

The General Court also erred in law in so far as it denied that the information decision had any legal consequences, maintaining that it is merely an interim measure preparatory to the final decision. The General Court thereby failed to recognise that that does not preclude the liability of the measure to be set aside if the purported interim measure — such as the decision under Article 10(3) of Regulation No 659/1999 — itself has damaging legal consequences.

Finally, the General Court failed to recognise that Commission infringements with respect to the adoption of the information decision cannot be adequately considered in the context of an action against the final decision, particularly as it is not possible at that stage to appeal the incompleteness of the factual basis of the case. At the same time, provisional compliance with an unlawful information injunction could, however, as in the present case, entail considerable time and expenditure for the undertaking concerned.

4.12.2010

Official Journal of the European Union

C 328/18

Reference for a preliminary ruling from the Landgericht Gießen (Germany) lodged on 28 September 2010 — Criminal proceedings against Baris Akyüz

(Case C-467/10)

()

2010/C 328/33

Language of the case: German

Referring court

Landgericht Gie ßen

Party to the main proceedings

Baris Akyüz

Questions referred

Are

(a)	Article 1(2), in conjunction with the second subparagraph of Article 8(4), of Council Directive 91/439/EEC (1) of 19 July 1991 on driving licences, and

(b)	Article 2(1), in conjunction with Article 11(4), of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (recast) (2)

to be interpreted as meaning:

that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where the acquisition of the driving licence in the issuing State was preceded by a refusal to grant a driving licence in the host State on the ground that the physical and mental requirements for the safe driving of a motor vehicle had not been met;

if Question 1 is answered in the affirmative: that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where the acquisition of the driving licence in the issuing State was preceded by a refusal to grant a driving licence in the host State on the ground that the physical and mental requirements for the safe driving of a motor vehicle had not been met and, on the basis of information given on the driving licence, other indisputable information from the host State, or on the basis of other indisputable facts, in particular any information provided by the holder of the driver licence himself or other indisputable facts known to the host State, it is established that there has been a breach of the rule on residence under Article 7(1)(b) of Directive 91/439/EEC and Article 7(1)(e) of Directive 2006/126/EC

—

inasmuch as other indisputable facts, in particular any information provided by the holder of the driving licence himself or other indisputable facts known to the host State are not sufficient: that information, within the meaning of the case-law of the Court of Justice, is provided by the issuing State even in the case where that information has not been directly conveyed, but rather has been conveyed only indirectly in the form of a notification based on such information from a third party, in particular the host State’s embassy in the issuing State —;

that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where, although the formal requirements for the issuing of a driving licence in the issuing State were fulfilled, it is nonetheless clear that the residence was solely for the purpose of acquiring a driving licence and was not for any other purposes protected by European Union law, in particular the fundamental freedoms under the TFEU, the Charter of Fundamental Rights of the European Union and the European Convention for the protection of human rights and fundamental freedoms (‘Driving licence tourism’)?

(1) OJ 1991 L 237, p. 1.

(2) OJ 2006 L 403, p. 18.

4.12.2010

Official Journal of the European Union

C 328/19

Action brought on 28 September 2010 — European Commission v Portuguese Republic

(Case C-470/10)

()

2010/C 328/34

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: M. França and I.V. Rogalski, acting as Agents)

Defendant: Portuguese Republic.

Form of order sought

—

Declare that, by maintaining a requirement of registration and accreditation by the Portuguese authorities for any temporary provision of services by Community patent agents who are already established in another Member State and by checking the professional qualifications of Community patent agents who travel to Portugal, even in relation to a temporary service, the Portuguese Republic has failed to fulfil its obligations under Article 56 TFEU and Articles 5 to 7 of Directive 2005/36/EC (1) on the recognition of professional qualifications.

—	order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Portuguese legislation at issue prevents a patent and trade mark agent, legally established in another Member State, from exercising his activities of representation before the National Institute of Industrial Property (INPI — Instituto Nacional da Propriedade Industrial) in Portugal, when he travels there to provide services to clients located in another Member State, if he has not previously undergone a test examination to be accredited or recognised by that institute.

(1) OJ 2005 L 255, p. 22

4.12.2010

Official Journal of the European Union

C 328/19

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg lodged on 28 September 2010 — Martin Wohl and Ildiko Veres v Magistrat der Stadt Salzburg, Other party: Finanzamt Salzburg-Stadt

(Case C-471/10)

()

2010/C 328/35

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat Salzburg

Parties to the main proceedings

Applicants: Martin Wohl and Ildiko Veres

Defendant: Magistrat der Stadt Salzburg

Other party: Finanzamt Salzburg-Stadt

Question referred

Is Annex X of the list referred to in Article 24 of the Act of Accession of the Republic of Hungary to the European Union (1. Freedom of movement for persons) (1) to be interpreted as meaning that the leasing of workers from Hungary to Austria cannot be regarded as a posting of those workers and that national restrictions concerning the employment of Hungarian/Slovakian workers in Austria apply equally, in Austria, in respect of Hungarian/Slovak workers (regularly employed in Hungary) leased by Hungarian undertakings?

(1) OJ 2003 L 236, p. 846.

4.12.2010

Official Journal of the European Union

C 328/19

Action brought on 29 September 2010 — European Commission v Republic of Hungary

(Case C-473/10)

()

2010/C 328/36

Language of the case: Hungarian

Parties

Applicant(s): European Commission (represented by: H. Støvlbæk and B.D. Simon, agents)

Defendant(s): Republic of Hungary

Form of order sought

The Commission claims that the Court should

declare that the Republic of Hungary:

—	Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, (1) and by Article 14(2) of Directive 2001/14/EC (2) in that it did not ensure the independence from the railway companies of the allocation of train paths,

—	Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, and by Article 4(2) of Directive 2001/14/EC in that it did not ensure the independence from the railway companies of the establishment of charges,

—	Failed to fulfil its obligations under Article 6(1) of Directive 2001/14/EC in that it did not ensure the financial balance of infrastructure managers,

—	Failed to fulfil its obligations under Article 6(2) of Directive 2001/14/EC in that it did not provide infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges,

—	Failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC in that it did not ensure that charges for the minimum access package and track access to service facilities were set at the cost that is directly incurred as a result of operating the train service,

—	Failed to fulfil its obligations under Article 11 of Directive 2001/14/EC in that it did not implement a scheme to encourage railway undertakings and infrastructure managers to minimise disruption and improve the performance of the railway network;

2.	order the Republic of Hungary to pay the costs.

Pleas in law and main arguments

The purpose of Directive 91/440/EEC and Directive 2001/14/EC is to guarantee equitable and non-discriminatory access to rail infrastructure for the railway undertakings. In order to achieve that objective those directives provide that bodies providing rail transport services may not take decisions relating to the allocation of train paths and distributing bodies must allocate capacity independently. If a railway undertaking manages transport this inevitably results in a competitive advantage as, in order to provide the tasks involved in the management of transport, detailed knowledge is required regarding the services offered by the railway undertakings, their frequency and their times.

The need to bring the present application arose inter alia because in Hungary — in breach of the provisions of the above directives — transport management is carried out by bodies offering transport services.

It is not possible to regard transport management as an infrastructure management activity which does not involve the allocation of train paths or supply of capacity as transport management is necessarily involved in the decision making process concerning the supply of capacity or the allocation of train paths. On the one hand, the transport manager must be fully informed of the decisions regarding designation of capacity in order to pursue its management activities; on the other hand, in the event of disruption of transport or emergency it must take the steps necessary to restore the operation of transport as scheduled, which necessarily requires a reallocation of network capacity and available train paths.

The principle of the independence of transport management has been infringed in that, in Hungary, railway undertakings send detailed invoices setting out the charges for access to infrastructure. Given that the detailed invoices necessarily refer, inter alia, to the services used by certain railway undertakings and their frequency and times, they confer a competitive advantage on the undertakings which issue them.

In addition to the failure to fulfil the requirement of the independence of the allocation of train paths, the Republic of Hungary has also failed to fulfil its obligations under Directives 91/440 and 2001/14 in so far as:

—	It has not laid down the conditions necessary to guarantee the financial balance of infrastructure management;

—	It has not adopted the necessary measures to require all infrastructure managers to reduce charges for access to the network and management costs;

—	It has not adopted the implementing measures necessary to guarantee the application of the principle of direct cost in determining the charges to be paid for track access to service facilities, and finally

—	It has not adopted a system of measures to encourage railway undertakings and infrastructure management to minimise disruption and improve the performance of the railway network.

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (OJ 1991 L 237, Special edition in Hungarian, Chapter 7, Volume 1, p. 341).

(2) Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29, Special edition in Hungarian, Chapter 7, volume 5, p. 404).

4.12.2010

Official Journal of the European Union

C 328/21

Appeal brought on 1 October 2010 by the Federal Republic of Germany against the order of the General Court (First Chamber) of 14 July 2010 in Case T-571/08 Federal Republic of Germany v European Commission

(Case C-475/10 P)

()

2010/C 328/37

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze, J. Möller and N. Graf Vitzthum, acting as Agents)

Other party to the proceedings: European Commission

Form of order sought

—	Set aside the order of the General Court of the European Union of 14 July 2010 in Case T-571/08 Federal Republic of Germany v European Commission;

—	order the European Commission to pay the costs.

Pleas in law and main arguments

This appeal has been brought against the order of the General Court on a procedural issue dismissing as inadmissible the appellant’s action against the Commission’s information injunction of 30 October 2008 in proceedings concerning State aid to Deutsche Post AG (‘DPAG’).

By the decision at issue, the Commission ordered the appellant to supply information about all of DPAG’s costs and revenue in the period 1989 to 2007, even though the privatisation of DPAG — in the context of which the transfers at issue were largely made — had already been concluded in 1994. Instead of resolving the preliminary legal issue as to which periods of time are, in fact, to be taken into account, the Commission proceeded to request information about DPAG’s revenue and costs situation in respect of the entire period from privatisation until the present, without giving any consideration to the time and expenditure involved. The Commission thereby placed an unreasonable burden on the appellant and on the undertaking concerned.

The Court of Justice is required to clarify, fundamentally, whether the Commission may in fact require a Member State to supply any information at all in State aid proceedings without being subject to direct judicial review. If the General Court’s legal assessment that such decisions are unchallengeable is correct, the Member States and undertakings concerned would always be required to go to considerable — also financial — lengths in order to comply with such injunctions, even though they regard them as unlawful. Moreover, there is a risk of proliferation of business secrets, knowledge of which may in certain circumstances be entirely irrelevant to the State aid proceedings.

The General Court’s order under appeal is erroneous in law in a number of respects.

First, the General Court erred in law in its interpretation of the concept of a challengeable act and failed to have regard to the relevant case-law in so far as it considered the act being challenged ‘on the basis of its substance’. An assessment of an act on the basis of its material legal effects is relevant only if there is no decision available which is binding on the basis of its legal form alone. Given that the binding nature of the Commission decision at issue, adopted pursuant to Article 10(3) of Regulation No 659/1999, derives from its legal form alone, there is no need to examine further whether the measure was specifically intended by its author to produce legal effects with regard to the appellant.

Second, the General Court erred in law in its assessment of the provisional nature of the information injunction in that, by reference to case-law concerning the admissibility of an action brought against the initiation of an investigation procedure under competition law, it erroneously concluded that the definitive nature of the decision is relevant also to the admissibility of the action against the Commission’s information injunction at issue.

Third, the General Court erred in law in its assessment of the legal effects of the information injunction in that it failed to recognise that a measure produces binding legal effects if it is capable of affecting the interests of the person to whom it is addressed by bringing about a distinct change in his legal position. Such is the case with regard to an information injunction, since failure to comply with it entails sanctions, as can be seen from the fact that Member States are precluded from relying on the proposition that the factual basis of the case is incomplete and the Commission is permitted to take a decision on the basis of the documents in the file. Moreover, it entails a lowering of the standard of proof by reference to which the Commission can assume that the facts asserted by it have been proved. This represents a procedural advantage for the Commission and an associated worsening of the relevant Member State’s position in the main investigation procedure. As a result of the information injunction, the appellant was faced with the choice of not complying with its obligations — while being precluded from invoking the proposition that the factual basis of the case is incomplete and the Commission’s standard of proof is lowered — or being de facto compelled to supply a disproportionate amount of information in order to protect its rights of defence. The latter, in addition to the legal disadvantage suffered, invariably entails an extraordinary amount of time and expense for which no compensation is provided. Beyond the scope of the main proceedings also, the information injunction can produce legal effects with regard to the Member State concerned, in so far as non-compliance could lead to infringement proceedings under Article 258 TFEU and, in extreme cases, to penalty payment proceedings under Article 260 TFEU.

Fourth, the General Court’s decision is contrary to the rule of law and the requirement of legal certainty in that it deems the only protection against an excessive information injunction to be non-compliance. Such an approach is unreasonable and infringes the principles referred to above. Legal protection against unlawful information injunctions cannot be dependent on a Member State’s non-compliance with such an injunction. The possibility of challenging an information injunction represents the only means of preventing the Member State’s duty of loyalty from being exposed to the Commission’s unfettered discretion and, in turn, allows the Commission to comply with its duty of sincere cooperation with the Member States.

Finally, the General Court erred in its assessment of responsibilities in State aid cases in so far as it determined that protection against excessive information injunctions is afforded by Member States’ refusal to supply information which, in their view, is not required for the purposes of ascertaining the facts. That entails the transfer to the Member States of the duty to ascertain the facts and to determine the subject-matter of the procedure, a transfer which is alien to the division of responsibilities under State aid law. The transfer of responsibilities indicated by the General Court is incompatible with the division of competences provided for in Articles 107 TFEU and 108 TFEU, exposes the Member States to the risk of an error of assessment and absolves the Commission to the extent indicated above from the duty to undertake a careful examination of the facts in administrative proceedings.

4.12.2010

Official Journal of the European Union

C 328/22

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) lodged on 1 October 2010 — ‘projektart’ Errichtungsges mbH, Eva Maria Pepic and Herbert Hilbe v Grundverkehrs-Landeskommission Vorarlberg

(Case C-476/10)

()

2010/C 328/38

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg

Parties to the main proceedings

Applicants:‘projektart’ Errichtungsges mbH, Eva Pepic and Herbert Hilbe

Defendant: Grundverkehrs-Landeskommission Vorarlberg

Questions referred

Is Article 6(4) of Directive 88/361/EEC (1) of 24 June 1988 for the implementation of Article 67 of the Treaty, according to which existing national legislation regulating purchases of secondary residences may be upheld, still applicable to the purchase of secondary residences situated in a Member State of the EU by a national of the Principality of Liechtenstein, which forms part of the EEA?

Does national legislation which, on the basis of Article 6(4) of Council Directive 88/361/EEC of 24 June 1988, prohibits a national of the Principality of Liechtenstein from purchasing a secondary residence situated in a Member State of the EU conflict with the provisions of the EEA Agreement concerning the free movement of capital, so that a national authority must disregard such national legislation?

(1) OJ 1988 L 178, p. 5.

4.12.2010

Official Journal of the European Union

C 328/22

Appeal brought on 27 September 2010 by European Commission against the judgment of the General Court (First Chamber) delivered on 7 July 2010 in Case T-111/07: Agrofert Holding a.s. v European Commission

(Case C-477/10 P)

()

2010/C 328/39

Language of the case: English

Parties

Appellant: European Commission (represented by: B. Smulders, P. Costa de Oliveira, V. Bottka, Agents)

Other parties to the proceedings: Agrofert Holding a.s., Kingdom of Sweden, Republic of Finland, Kingdom of Denmark, Polski Koncern Naftowy Orlen SA

Form of order sought

The appellant claims that the Court should:

—	quash the judgment of the General Court (First Chamber) of 7 July 2010 in Case T-111/07 Agrofert Holding a.s. v. Commission;

—	to give final judgment in the matters that are the subject of this Appeal; and

—	to order the Applicant in Case T-111/07 to pay the costs of the Commission arising from that case and from the present appeal.

Pleas in law and main arguments

The present Appeal concerns the interpretation of the exceptions to the right to access to documents relating to (i) the protection of the purpose of inspections, investigations and audits (hereafter ‘the investigations exception’), (ii) the protection of the commercial interests of a natural or legal person (hereafter, the ‘commercial interests’ exception), (iii) the protection of the decision-making process of the Commission (hereafter, the ‘decision-making process’ exception) and, (iv) the protection of legal advice (hereafter, the ‘legal advice’ exception). These are laid down, respectively, in Article 4 (2), third indent, in Article 4 (2), first indent, in Article 4 (3), second subparagraph and in Article 4 (2), second indent of 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 (1) (hereafter ‘Regulation 1049/2001’).

More precisely, this Appeal covers the application of these exceptions to the documents in a Commission file concerning a merger control procedure in accordance with Council Regulation (EC) No 139/2004 (2) (hereafter the ‘Merger Regulation’).

The Commission considers that in the judgement under appeal the General Court made errors of law in its interpretation of the aforesaid exceptions by failing to take into account the specific features of competition law procedures and guarantees offered by the Merger Regulation to the undertakings participating in the merger proceedings. In particular, the General Court in its judgment did not seek to establish a genuine and harmonious balance between the two applicable legal regimes in this case. Instead it interpreted erroneously the rules on access to documents and, in so doing, it rendered the merger rules inapplicable.

The first question submitted for consideration to the Court is the scope of the professional secrecy obligation, as set out in the Merger Regulation and in Article 339 TFEU, for the purposes of interpreting the exceptions to the right of access, in particular the ‘investigations’ and the ‘commercial interests’ exception.

The second question submitted to the Court is the conclusion of the General Court according to which there were no particular circumstances in this case leading to the refusal of access to documents, without it being necessary for the Commission to examine, in a concrete and individual manner, each document requested and to provide a detailed reasoning of the refusal relating to the content of each document requested.

The third question is the restrictive interpretation of the ‘investigations’ exception, according to which this exception cannot apply after the adoption of the Commission decision terminating the administrative merger control procedure.

The fourth question submitted to the Court concerns the extent of the obligation to state reasons for the purposes of the demonstrating the risk of disclosure in particular for the protection of ‘commercial interests’, the ‘decision-making process’ and ‘legal advice’.

Finally, the fifth question to the Court concerns the interpretation of the rules relating to partial access. It is the Commission's position that in order for it to effectively conduct its enquiries relating to mergers, it must comply with the obligations imposed on it by the Merger Regulation, in particular those related to professional secrecy, irrespective of the fact that its decision has become definitive. Furthermore, when the procedural rules governing a particular field of activity, as interpreted by the case-law, afford protection to certain documents, such as the internal documents of the. Commission, it must be recognised that such documents benefit from a general presumption of non accessibility under Regulation 1049/2001. The judgment of the General Court has cast doubts on the scope of the Commission's ability to conduct its enquiries in this matter as well as on the rights of the parties having submitted documents to it and this Appeal is designed to permit the Court to clarify the correct approach.

The Commission therefore submits this Appeal in order to permit the Court to rule on the fundamental issues raised by the General Court's judgment and to lay down a coherent and harmonious interpretation of the two legal instruments concerned.

(1) OJ L 145, p. 43.

(2) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings OJ L 24, p. 1.

4.12.2010

Official Journal of the European Union

C 328/24

Action brought on 5 October 2010 — European Commission v Kingdom of Sweden

(Case C-479/10)

()

2010/C 328/40

Language of the case: Swedish

Parties

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

Defendant: Kingdom of Sweden

Form of order sought

—

Declare that, by exceeding the limit values of PM10 in ambient air in 2005, 2006 and 2007 in zones SW 2 and SW 4 and in 2005 and 2006 in zone SW 5, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC (1) of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air;

—	Order Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

Article 5(1) of Directive 1999/30 provides that Member States are to take the measures necessary to ensure that concentrations of PM10 in ambient air do not exceed the limit values laid down in Section I of Annex III as from the dates specified therein. The relevant date in this case is 1 January 2005.

It is apparent from the reports sent by Sweden to the Commission concerning 2005 to 2007 that the limit values for PM10 have been exceeded in zones SW 2 and SW 4 during that entire period, and in zone SW 5 in 2005 and 2006.

Accordingly, Sweden has failed to fulfil its obligations under Article 5(1) of Directive 1999/30 in respect of those zones and those years.

(1) OJ L 163, p. 41.

4.12.2010

Official Journal of the European Union

C 328/24

Action brought on 5 October 2010 — European Commission v Kingdom of Sweden

(Case C-480/10)

()

2010/C 328/41

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: R. Lyal and K. Simonsson, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

—

Declare that, by in practice limiting the regime for value added tax (VAT) groups to providers of financial services and insurance services, the Kingdom of Sweden has failed to fulfil its obligations under Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, and

—	order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The Swedish rules on VAT groups are contrary to Article 11 of the VAT Directive, since the application of the rules is limited to undertakings which are active within the financial sector. In the view of the Commission, national regimes for VAT groups must apply to all undertakings which are established in the Member State applying the arrangements, irrespective of the type of activity carried out by the undertaking.

The common system of VAT is a uniform system. Introduction of a special regime into that system must consequently, in principle, be done in such a way that the regime is generally applicable.

There is nothing in the wording of Article 11 of the VAT Directive to indicate that a Member State can limit the application of a regime for VAT groups to certain undertakings which are active within a certain sector.

The aim of Article 11 of the VAT Directive also tends to suggest that the provision is to be understood as applying to all undertakings in all sectors.

Furthermore, the Swedish rules on VAT groups are incompatible with the European Union law principle of equal treatment.

4.12.2010

Official Journal of the European Union

C 328/25

Reference for a preliminary ruling from the Corte dei Conti, Sezione Giurisdizionale per la Regione Siciliana (Italy) lodged on 6 October 2010 — Teresa Cicala v Regione Siciliana

(Case C-482/10)

()

2010/C 328/42

Language of the case: Italian

Referring court

Corte dei Conti, Sezione Giurisdizionale per la Regione Siciliana

Parties to the main proceedings

Applicant: Teresa Cicala

Defendant: Regione Siciliana

Questions referred

Are the interpretation and application of Article 3 of Law 241/1990 and of Article 3 of Sicilian Regional Law 10/1991 — in relation to Article 1 of Law 241/90, which requires the Italian administrative authorities to apply the principles of European Union law, pursuant to the obligation to state reasons for the acts of public authorities laid down in the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and in the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union — to the effect that measures of public authorities in a private-law form — that is to say, measures relating to individual rights and which are in any event mandatory, in matters relating to pensions — may be exempt from the obligation to state reasons, compatible with European Union law, and does such a case amount to infringement of an essential procedural requirement governing an administrative measure?

Is the first sentence of Article 21g(2) of Law 241/1990, as interpreted by the administrative case-law — in relation to the obligation to state reasons for an administrative measure laid down by Article 3 of Law 241/1990 and by Sicilian Regional Law 10/1991, in conjunction with the obligation to state reasons for the acts of public authorities laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union — compatible with Article 1 of Law 241/1990, which requires the administrative authorities to apply the principles of European Union law, and, consequently, are the interpretation and application of that interpretation whereby the authorities may supplement a statement of reasons for an administrative measure in court proceedings compatible and admissible?

4.12.2010

Official Journal of the European Union

C 328/25

Action brought on 6 October 2010 — European Commission v Kingdom of Spain

(Case C-483/10)

()

2010/C 328/43

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: H. Støvlbæk and R. Vidal Puig, Agents)

Defendant: Kingdom of Spain

Form of order sought

—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 4(1), 11(2), 14(1) and 30(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, (1) and under Article 10(7) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways. (2)

—	Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission submits that the Kingdom of Spain has failed to comply with the following provisions of the above-mentioned directives:

1.	Article 4(1) of Directive 2001/14/EC, in so far as the level of railway infrastructure charges is ‘determined’ exclusively by the State authorities, the function of the ‘infrastructure manager’, Administrador de Infraestructuras Ferroviarias (ADIF), being reduced to merely collecting the charges;

2.	Article 11 of Directive 2001/14/EC, since the charging scheme introduced by the Spanish authorities does not set out any performance scheme in accordance with the criteria laid down in that article;

Article 30(1) of Directive 2001/14/EC, since the Spanish legislation does not ensure that the regulatory body (el Comité de Regulación Ferroviaria) is sufficiently independent vis-à-vis ADIF (the railway infrastructure manager) and RENFE-Operadora (a railway undertaking attached to the Spanish Ministry of Public Works);

4.	Article 10(7) of Directive 91/440/EEC, because the regulatory body (el Comité de Regulación Ferroviaria) lacks the means necessary to perform the function conferred on it under that article of monitoring the competition in the rail services markets;

Article 13(2) and Article 14(1) of Directive 2001/14/EC in so far as the Spanish legislation lays down criteria for the allocation of railway infrastructure capacity which are discriminatory; these may in fact result in the allocation of train paths for a longer term than one working timetable period; the criteria are also lacking in detail.

(1) OJ 2001 L 75, p. 29.

(2) OJ 1991 L 237, p. 25.

4.12.2010

Official Journal of the European Union

C 328/26

Action brought on 8 October 2010 — European Commission v Hellenic Republic

(Case C-485/10)

()

2010/C 328/44

Language of the case: Greek

Parties

Applicant: European Commission (represented by: B. Stromsky and M. Konstantinidis)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

—

declare that, by failing to take, within the period prescribed, all the measures necessary to implement Commission Decision E(2008) 3118 of 2 July 2008 (as rectified by the Commission Decision of 13 August 2008) on aid granted to Hellenic Shipyards SA or, in any event, by failing to give sufficient information to the Commission on the measures taken in accordance with Article 19 of the decision, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 3, 5, 6, 8, 9 and 11 to 18 of that decision and under the Treaty on the Functioning of the European Union;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The subject of the Commission’s action is the non-implementation by the Hellenic Republic of the Commission's decision relating to illegal State aid in favour of Hellenic Shipyards SA which must be recovered from the non-military part of that undertaking.

The Commission points out that the Hellenic Republic should have ensured implementation of the decision within four months of the date of its notification. The decision was published on 13 August 2008 and the Commission did not grant any extension for implementation of the decision. Consequently, the period for compliance formally expired on 13 December 2008.

The Commission states that, in accordance with the settled case-law of the Court, the only justification that may be put forward by a Member State in an action for failure to fulfil obligations brought by the Commission pursuant to Article 108(2) of the Treaty on the Functioning of the European Union is that is absolutely impossible for it properly to implement the decision.

However, in this case the Greek authorities have never raised the argument of absolute impossibility of implementation. On the contrary, from the outset they expressed their intention to implement the decision as rapidly as possible. Nevertheless, the Commission notes that as of the date on which this action was lodged, they have not taken any steps that would constitute even partial implementation of the decision.

The Commission considers that Greece has not taken the necessary action to implement the decision either in accordance with the solution discussed between its services and the competent Greek authorities or in any other appropriate way.

4.12.2010

Official Journal of the European Union

C 328/26

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 18 October 2010 — Barbara Mercredi v Richard Chaffe

(Case C-497/10)

()

2010/C 328/45

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Barbara Mercredi

Defendants: Richard Chaffe

Questions referred

Please clarify the appropriate test for determining the habitual residence of a child for the purpose of:

(a)	Article 8 of EC Regulation 2201/2003 (1)

(b)	Article 10 of EC Regulation 2201/2003

2.	Is a Court an ‘institution or other body’ to which rights of custody can be attributed for the purposes of the provisions of EC Regulation 2201/2003?

Does Article 10 have a continuing application after the courts of the requested Member State have rejected an application for the return of the child under the 1980 Hague Abduction Convention on the basis that Articles 3 and 5 are not made out?

In particular, how should a conflict between a determination of the requested state that the requirements of Articles 3 and 5 of the 1980 Hague Abduction Convention are not met and a determination of the requesting state that the requirements of Articles 3 and 5 are met be resolved?

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000

OJ L 338, p. 1

4.12.2010

Official Journal of the European Union

C 328/28

Judgment of the General Court of 29 September 2010 — Al-Faqih v Council

(Joined Cases T-135/06 to T-138/06) (1)

(Common foreign and security policy - Combating terrorism - Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Freezing of funds - Fundamental rights - Right to respect for property, right to be heard and right to effective judicial review)

2010/C 328/46

Language of the case: English

Parties

Applicants: Al-Bashir Mohammed Al-Faqih (Birmingham, United Kingdom); Sanabel Relief Agency Ltd (Birmingham); Ghunia Abdrabbah (Birmingham); and Taher Nasuf (Manchester, United Kingdom) (represented initially by: N. Garcia-Lora, Solicitor and S. Cox, Barrister and subsequently by N. Garcia-Lora and E. Grieves, Barrister)

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

Interveners in support of the defendants: Commission of the European Communities (represented initially by: P.J. Kuijper and subsequently by C. O’Reilly and J. Aquilina, and subsequently by E. Paasivirta and P. Aalto, and finally by E. Paasivirta and M. Konstantinidis, Agents); and the United Kingdom of Great Britain and Northern Ireland (represented by: C. Gibbs, Z. Bryanston-Cross and S. Ossowski, Agents, assisted by A. Dashwood, Barrister)

interveners,

Re:

Application for annulment of Article 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 freezing of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2001 L 139, p. 9), as amended for the sixty-third time by Commission Regulation (EC) No 246/2006 of 10 February 2006 (OJ 2006 L 40, p. 13), which added the applicants’ names to Annex I to Regulation No 881/2002.

Operative part of the judgment

The Court:

1.	Joins Cases T-135/06 to T-138/06 for the purposes of judgment.

Annuls Article 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 freezing of funds and other financial resources in respect of the Taliban of Afghanistan, and amending for the sixty third time by Commission Regulation (EC) No 246/2006 of 10 February 2006 in so far as it concerns the applicants Al-Bashir Mohammed Al-Faqih, Taher Nasuf, Ghunia Abdrabbah, and Sanabel Relief Agency Ltd.

3.	Orders the Council of the European Union to pay, in addition to its own costs, those incurred by the applicants, and the sums advanced by way of legal aid by the cashier of the General Court.

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

(1) OJ C 165, 15.7.2006.

4.12.2010

Official Journal of the European Union

C 328/28

Judgment of the General Court of 12 October 2010 — Asenbaum v OHIM (WIENER WERKSTÄTTE)

(Joined Cases T-230/08 and T-231/08) (1)

(Community trade mark - Applications for Community word mark WIENER WERKSTÄTTE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

2010/C 328/47

Language of the case: German

Parties

Applicant: Paul Asenbaum (Vienna, Austria) (represented by: P. Vögel and E. Ploil, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 10 April 2008 (Cases R 1573/2006-4 and R 1571/2006-4) concerning two applications for registration of the word sign WIENER WERKSTÄTTE as a Community trade mark.

Operative part of the judgment

The Court:

1.	Orders that Cases T-230/08 and T-231/08 shall be joined for the purposes of the judgment;

2.	Dismisses the actions.

3.	Orders Mr Asenbaum to pay the costs.

(1) OJ C 223, 30.8.2008.

4.12.2010

Official Journal of the European Union

C 328/29

Judgment of the General Court of 21 October 2010 — Agapiou Joséphidès v Commission and EACEA

(Case T-439/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus - Documents emanating from a third party - Partial refusal of access - Action for annulment - Time-limit for action - Inadmissibility - Objection of illegality - Exception relating to the protection of the privacy and integrity of the individual - Exception relating to the protection of commercial interests - Duty to give reasons)

2010/C 328/48

Language of the case: French

Parties

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

Defendant: European Commission (represented by: M. Owsiany-Hornung and G. Rozet, acting as Agents); and Education, Audiovisual and Culture Executive Agency (EACEA) (represented by: H. Monet, acting as Agent)

Re:

Annulment, firstly, of the decision of the EACEA of 1 August 2008, concerning a request for access to certain documents relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus and, secondly, of Commission Decision C(2007) 3749 of 8 August 2008 relating to an individual decision to award a subsidy within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ms Kalliope Agapiou Joséphidès to pay the costs.

(1) OJ C 237, 20.12.2008.

4.12.2010

Official Journal of the European Union

C 328/29

Judgment of the General Court of 21 October 2010 — Umbach v Commission

(Case T-474/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a contract concluded under the TACIS programme - Request for access concerning a dispute between the applicant and the Commission before a Belgian civil court - Partial refusal of access - Request for access based on the principles deriving from the EU Treaty - Overriding public interest)

2010/C 328/49

Language of the case: German

Parties

Applicant: Dieter C. Umbach (Bangkok, Thailand) (represented by: M. Stephani, lawyer)

Defendant: European Commission (represented by: P. Costa de Oliveira and T. Scharf, acting as Agents)

Re:

Application for annulment of the Commission’s decision of 2 September 2008 refusing the applicant access to certain data in documents concerning a contract headed ‘TACIS Service Contract No 98.0414’ relating to assistance in the drafting of an administrative code for the Russian Federation

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders Mr Dieter C. Umbach to pay the costs.

(1) OJ C 32, 7.2.2009.

4.12.2010

Official Journal of the European Union

C 328/30

Order of the General Court of 5 October 2010 — Provincie Groningen and Provincie Drenthe v Commission

(Case T-69/09) (1)

(Annulment action - ERDF - Decision reducing the financial assistance and ordering the partial repayment of the sums paid - Regional body - No direct concern - Inadmissibility)

2010/C 328/50

Language of the case: Dutch

Parties

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

Defendant: European Commission (represented by: A. Steiblytė and W. Roels, Agents)

Re:

Application for partial annulment of Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund (ERDF) within the framework of the single programming document for the Groningen-Drenthe region coming under objective 2 — No 97.07.13.003 — granted in accordance with Commission Decision C(1997) 1362 of 26 May 1997.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Provincie Groningen and Provincie Drenthe are ordered to pay the costs.

(1) OJ C 90, 18.4.2009.

4.12.2010

Official Journal of the European Union

C 328/30

Order of the President of the General Court of 15 October 2010 — Nexans France v Joint Undertaking Fusion for Energy

(Case T-415/10 R)

(Application for interim measures - Tendering procedure - Rejection of a tender - Application for suspension of operation of a measure - No urgency)

2010/C 328/51

Language of the case: French

Parties

Applicant: Nexans France SAS (Clichy, France) (represented by: J.-P. Tran Thiet and J.-F. Le Corre, lawyers)

Defendant: European Joint Undertaking for ITER and the Development of Fusion Energy (represented by: A. Verpoint, Agent and C. Kennedy-Loest, C. Thomas, M. Farley, Solicitors, J. Derenne and N. Pourbaix, lawyers)

Re:

Application for suspension of operation of decisions taken by the defendant, in a tendering procedure, to reject the applicant’s bid and to award the contract for supply of TF and PF conductors to another tenderer.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

4.12.2010

Official Journal of the European Union

C 328/30

Order of the President of the General Court of 19 October 2010 — Nencini v Parliament

(Case T-431/10 R)

(Interim measures - Member of the European Parliament - Recovery of allowances paid in reimbursement of parliamentary assistance expenses and of travel costs - Application for stay of execution - Lack of urgency)

2010/C 328/52

Language of the case: Italian

Parties

Applicant: Riccardo Nencini (Barberino di Mugello, Italy) (represented by: F. Bertini, lawyer)

Defendant: European Parliament (represented by: N. Lorens, A. Caiola and D. Moore, acting as Agents)

Re:

Application for stay of execution of a number of acts of the Parliament relating to the recovery of parliamentary allowances wrongly received

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

4.12.2010

Official Journal of the European Union

C 328/31

Action brought on 13 August 2010 — Morte Navarro v Parliament

(Case T-280/09)

()

2010/C 328/53

Language of the case: Spanish

Parties

Applicant: José Carlos Morte Navarro (Zaragoza, Spain) (represented by: J. González Buitrón, lawyer)

Defendant: European Parliament

Form of order sought

—

annul the Decision of 5 May 2009, issue number 202660, of the European Parliament’s Committee on Petitions, by which it closed Petition No 1818-08 submitted by Mr. Morte Navarro, give a fresh decision that declares admissible Petition No 1818-08 submitted by Mr. Morte Navarro to the European Parliament and examines that petition in accordance with the legally established procedure, and order the defendant to pay the costs;

—	in the alternative, if the above claim does not succeed, annul the above-mentioned Decision of 5 May 2009, and

—	order the European Parliament’s Committee on Petitions to adopt a new decision that determines whether or not the petition submitted by Mr. Morte Navarro is admissible, and order the defendant to pay the costs.

Pleas in law and main arguments

This action is brought against the Decision of the European Parliament’s Committee on Petitions of 5 May 2009, by which it decided to take no further action on the petition submitted by the applicant on the ground that it clearly does not come within the jurisdiction of the European Union.

In his petition, the applicant requested that an investigation be initiated by the European Parliament with a view to the latter, pursuant to Article 7 of the Treaty on European Union, asking the Council to declare the existence of a serious and persistent breach by the Spanish State of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, referred to in Article 6(1) of the Treaty on European Union.

In support of his claims, the applicant alleges the lack of a proper statement of reasons in the contested decision, given that it sets out no arguments, other than the simple assertion that the issue raised clearly does not fall within the area of activity of the European Union, which would enable him to be informed of the reasons and grounds that have led the European Parliament’s Committee on Petitions to take no further action on the petition.

4.12.2010

Official Journal of the European Union

C 328/31

Action brought on 7 September 2010 — Brighton Collectibles v OHIM — Felmar (BRIGHTON)

(Case T-403/10)

()

2010/C 328/54

Language in which the application was lodged: English

Parties

Applicant: Brighton Collectibles, Inc. (City of Industry, USA) (represented by: R. Delorey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Felmar (Paris, France)

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 30 June 2010 in case R 408/2009-4;

—	Annul all costs orders made against the applicant by the Office for Harmonisation in the Internal Market (Trade Marks and Designs); and

—	Order the defendant to pay the costs of the 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 ‘BRIGHTON’, for goods in class 25

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

Mark or sign cited: Non-registered word and figurative trade marks ‘BRIGHTON’ and ‘Brighton’, used in the course of trade in the United Kingdom, Ireland, Germany and Italy in respect of belts; well-known word and figurative trade marks ‘BRIGHTON’ and ‘Brighton’, used in the course of trade in the United Kingdom, Ireland, Germany and Italy in respect of leather goods, hats, jewellery and watches

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 207/2009, as the Board of Appeal erred in law, in finding that the earlier rights on which the opposition was based not to have been substantiated; infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly excluded likelihood of confusion.

4.12.2010

Official Journal of the European Union

C 328/32

Action brought on 8 September 2010 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

(Case T-404/10)

()

2010/C 328/55

Language in which the application was lodged: English

Parties

Applicant: National Lottery Commission (London, United Kingdom) (represented by: B. Brandreth, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Mediatek Italia Srl (Napoli, Italy), Giuseppe De Gregorio (Napoli, Italy)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in case R 1028/2009-1;

—	Remit the case to the Cancellation Division;

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a hand with two crossed fingers and a smiling face for goods and services in classes 9, 16, 25, 28 and 41 — Community trade mark registration No 4800389

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) and 53(2)(c) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 53(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in law in its assessment of this article and in its approach to the assessment of the facts, and failed to exercise its powers of investigation. The applicant also considers that the Board of Appeal failed to exercise the full remit of its powers under Article 78 of Council Regulation (EC) No 207/2009.

4.12.2010

Official Journal of the European Union

C 328/32

Action brought on 15 September 2010 — Yoshida Metal Industry v OHMI — Pi-Design and Others (surface covered with black circles)

(Case T-416/10)

()

2010/C 328/56

Language in which the application was lodged: English

Parties

Applicant: Yoshida Metal Industry Co., Ltd (Niigata, Japan) (represented by: S. Verea, K. Muraro, M. Balestriero, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Pi-Design AG (Triengen, Switzerland), Bodum France SA (Neuilly sur Seine, France), Bodum Logistics A/S (Billund, Denmark)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2010 in case R 1237/2008-1;

—	Confirm the decision of the Cancellation Division of 15 July 2008 regarding Community trade mark application No 1372580;

—	Confirm the validity of Community trade mark registration No 1372580;

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a surface covered with black circles for goods in classes 8 and 21 — Community trade mark registration No 1372580

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the parties requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on absolute grounds for refusal pursuant to Article 7 of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the application for declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Annulled the contested decision and declared the Community trade mark registration invalid

Pleas in law: Infringement of Article 7(1)(e)(ii) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of this article are applicable to the contested Community trade mark.

4.12.2010

Official Journal of the European Union

C 328/33

Action brought on 17 September 2010 — Václav Hrbek trading as BODY-HF v OHMI — The Outdoor Group (ALPINE PRO SPORTSWEAR & EQUIPMENT)

(Case T-434/10)

()

2010/C 328/57

Language in which the application was lodged: English

Parties

Applicant: Václav Hrbek trading as BODY-HF (Prague, Czech Republic) (represented by: C. Jäger, lawyer)

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

Other party to the proceedings before the Board of Appeal: The Outdoor Group Ltd (Northampton, United Kingdom)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 8 July 2010 in case R 1441/2009-2;

—	Order the defendant to reject opposition No B1276692 and to allow the application No 5779351 for registration in its entirety;

—	Order the defendant to bear the costs of the proceedings;

—	Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal and the Opposition Division, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ALPINE PRO SPORTSWEAR & EQUIPMENT’, for goods in classes 18, 24, 25 and 28 — Community trade mark application No 5779351

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

Mark or sign cited: Community trade mark registration No 2165017 of the figurative mark ‘alpine’, for goods in classes 18 and 25

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 65(2) and 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal misused its power by the ruling of the contested decision as it lacks objectivity and legal basis, and erroneously applied the criteria to establish a likelihood of confusion between the earlier trademark and the contested trademark.

4.12.2010

Official Journal of the European Union

C 328/34

Action brought on 24 September 2010 — Fulmen v Council

(Case T-439/10)

()

2010/C 328/58

Language of the case: French

Parties

Applicant: Fulmen (Tehran, Iran) (represented by: A. Kronshagen, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Annul point 11 of Section I B of the annex to Council Regulation (EU) No 668/2010 concerning restrictive measures against Iran, and the Council's decision of 26 July 2010 in so far as it concerns the applicant;

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

Pleas in law and main arguments

The applicant seeks annulment of Council implementing Regulation (EU) No 668/2010 implementing Article 7(2) of Regulation (EC) No 423/2007, (1) and Council Decision 2010/413/CFSP, (2) concerning restrictive measures against Iran with the aim of preventing nuclear proliferation, in so far as the applicant's name has been placed on the list of persons, entities and bodies whose funds and economic resources are frozen pursuant to that provision.

In support of its action the applicant submits that the contested Council decision should be annulled since there is no relevant decision of a competent authority justifying, at the time of its adoption, the inclusion of the applicant on the list of organisations involved in Iran's nuclear or ballistic missiles activities.

The applicant also alleges an infringement of procedural guarantees in that its rights of defence and its right to a fair hearing have been infringed in so far as:

—	the Council did not sufficiently reason its decision to include the applicant's name on the contested list;

—	the factors held against the applicant were not communicated prior to the Council's decision; and

—	the applicant was not provided with the opportunity to effectively express its point of view on those factors.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25).

(2) Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

4.12.2010

Official Journal of the European Union

C 328/34

Action brought on 24 September 2010 — Mahmoudian v Council

(Case T-440/10)

()

2010/C 328/59

Language of the case: French

Parties

Applicant: Fereydoun Mahmoudian (Tehran, Iran) (represented by: A. Kronshagen, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Annul point 2 of Section I A of the annex to Council Regulation (EU) No 668/2010 concerning restrictive measures against Iran, and the Council's decision of 26 July 2010 in so far as it concerns the applicant;

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

Pleas in law and main arguments

The pleas in law and arguments raised by the applicant are identical to those raised in Case T-439/10 Fulmen v Council, concerning the company of which the applicant is the managing director.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25).

(2) Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

4.12.2010

Official Journal of the European Union

C 328/35

Appeal brought on 20 September 2010 by Christian Kurrer against the judgment of the Civil Service Tribunal delivered on 8 July 2010 in Case F-139/06, Kurrer v Commission

(Case T-441/10 P)

()

2010/C 328/60

Language of the case: French

Parties

Appellant: Christian Kurrer (Watermael-Boitsfort, Belgium) (represented by M. Velardo, lawyer)

Other party to the proceedings: European Commission

Forms of order sought by the appellant

—	Annulment of the judgment in Case F-139/06 Kurrer v Commission;

—	Annulment of the decision of 27 March 2006 in so far as it classifies the applicant as a probationary official in grade A*6, step 2;

—	In the alternative, reference of the case back to the Civil Service Tribunal for judgment;

—	Costs against the Commission, including those of the procedure at first instance.

Pleas in law and main arguments

In this appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 8 July 2010 in Case F-139/06 Kurrer v Commission, dismissing the application in which the appellant, formerly a member of the temporary staff classified in grade A* 8, had sought the annulment of the decision whereby the Commission: (i) appointed the appellant, following an open competition published before the entry into force of the new Staff Regulations of the European Union, as a probationary official, in so far as that decision classified him in grade A*6, step 2, pursuant to the rules of the new Staff Regulations; and (ii) did not maintain his promotion points.

In support of his appeal, the appellant argues that, on a proper interpretation of Article 5(4) of Annex XIII to the Staff Regulations, all members of the temporary staff having passed an internal or open competition should keep their grade on classification as titular officials, whereas the CST held that that benefit should be reserved for members of the temporary staff moving to a higher category at the time of their establishment.

The appellant makes four pleas in law, claiming:

—

lack of reasoning and error of law, the CST having ruled only very marginally on discrimination between members of the temporary staff recruited by the European Commission and those recruited by the European Parliament and the Court of Auditors of the European Union, the latter having, at the time of their classification, kept their grade and seniority irrespective of the classification laid down in the notice for the competition which they passed;

—	infringement of the rules on the interpretation of Community law, in so far as the interpretation followed by the CST was not based either on the wording or the logic of Article 5(4) of Annex XIII to the Staff Regulations;

—

infringement of the principle of equal treatment and the Charter of Fundamental Rights of the European Union, and an error of law, the interpretation followed by the CST having infringed the principle whereby two situations not being substantially different may not be treated differently, inasmuch as there is no substantial difference between members of the temporary staff established on moving to a different category and those classified as officials following an open competition; moreover, some members of the temporary staff who had become officials following an open competition had kept their promotion points, which was not the case with the appellant;

—	infringement of Community law, and in particular of the eligibility for a career and of the eligibility of members of the temporary staff to become officials.

4.12.2010

Official Journal of the European Union

C 328/36

Appeal brought on 20 September 2010 by Salvatore Magazzu against the judgment of the Civil Service Tribunal delivered on 8 July 2010 in Case F-126/06, Magazzu v Commission

(Case T-442/10 P)

()

2010/C 328/61

Language of the case: French

Parties

Appellant: Salvatore Magazzu (Brussels, Belgium) (represented by M. Velardo, lawyer)

Other party to the proceedings: European Commission

Forms of order sought by the appellant

—	Annulment of the judgment in Case F-126/06 Magazzu v Commission;

—	Annulment of the decision of 13 December 2005 in so far as it classifies the applicant as a probationary official in grade A*6, step 2, as from 1 January 2006;

—	Reference of the case back to the Civil Service Tribunal for judgment;

—	Costs against the Commission, including those of the procedure at first instance.

Pleas in law and main arguments

The pleas in law and main arguments raised by the appellant are essentially identical or similar to those raised in Case T-441/10 P Kurrer v Commission.

4.12.2010

Official Journal of the European Union

C 328/36

Appeal brought on 20 September 2010 by Stefano Sotgia against the judgment of the Civil Service Tribunal delivered on 8 July 2010 in Case F-130/06, Sotgia v Commission

(Case T-443/10 P)

()

2010/C 328/62

Language of the case: French

Parties

Appellant: Stefano Sotgia (Dublin, Ireland) (represented by M. Velardo, lawyer)

Other party to the proceedings: European Commission

Forms of order sought by the appellant

—	Annulment of the judgment in Case F-130/06 Sotgia v Commission;

—	Annulment of the decision of 11 April 2006 in so far as it classifies the applicant as a probationary official in grade A*6, step 2, as from 16 April 2006;

—	In the alternative, reference of the case back to the Civil Service Tribunal for judgment;

—	Costs against the Commission, including those of the procedure at first instance.

Pleas in law and main arguments

The pleas in law and main arguments raised by the appellant are essentially identical or similar to those raised in Case T-441/10 P Kurrer v Commission.

4.12.2010

Official Journal of the European Union

C 328/36

Action brought on 23 September 2010 — Apple v OHMI — Iphone Media (IPH IPHONE)

(Case T-448/10)

()

2010/C 328/63

Language in which the application was lodged: English

Parties

Applicant: Apple, Inc. (Cupertino, USA) (represented by: M. Engelman, barrister and J. Olsen, solicitor)

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

Other party to the proceedings before the Board of Appeal: Iphone Media, SA (Seville, Spain)

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 21 July 2010 in case R 1084/2009-4;

—	Uphold the applicant’s opposition;

—

In the alternative, then applicant requests that its opposition be upheld in respect of such goods and services for which it is found that a likelihood of confusion exists and/or for such goods and services where it is determined there exists a risk of the Application Mark taking unfair advantage of, or being detrimental to, the distinctive character or repute of the applicant’s mark;

—	Order the other party to the proceedings before the Board of Appeal to pay the costs of the 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 figurative mark ‘IPH IPHONE’, for goods and services in classes 16, 35, 38, 41 and 42 — Community trade mark application No 5562822

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

Mark or sign cited: Community trade mark registration No 2901007 of the word mark ‘IPHONE’, for goods and services in classes 9, 38 and 42

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 8(1)(b) and 8(5) of Council Regulation (EC) No 207/2009, as the Board of Appeal misapplied the provisions of these articles to the contested trade mark.

4.12.2010

Official Journal of the European Union

C 328/37

Action brought on 24 September 2010 — ClientEarth v Council

(Case T-452/10)

()

2010/C 328/64

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom), (represented by: S. Hockman QC, Barrister)

Defendant: Council of the European Union

Form of order sought

—	Declare the defendant in violation of Regulation (EC) No 1049/2001 (1);

—	Declare the Council in violation of Article 294(6) TFEU for failure to inform the European Parliament fully of the reasons which led it to adopt its first reading position;

—	Annul the contested decision of 26 July 2010 (Ref. 15/c/01/10), by which the Council provided a negative reply under Article 8(3) of Regulation (EC) No 1049/2001, thereby withholding document No 6865/09;

—	Order the defendant to provide access to the requested document; and

—	Order the defendant to pay applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening party.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of the Council’s decision of 26 July 2010, by which the defendant failed to provide the applicant access to document No 6865/09 which contains an opinion of the Legal Service of the defendant concerning the Commission’s proposal for the recast of Regulation (EC) No 1049/2001 and, in particular, the European Parliament’s recommended amendments contained in the Cashman report.

In support of his appeal, the applicant submits the following pleas in law:

Firstly, he contested decision violates Article 4(2) second indent of Regulation (EC) No1049/2001 and Article 294(6) TFEU. The disclosure of the requested legal advice would not undermine the protection of legal advice as it would not undermine the Council’s interest in requesting and receiving frank, objective and comprehensive legal advice. The first reading stage of the legislative procedure should imply disclosure of legal advice on admissibility of European Parliament’s proposed amendments.

Secondly, the contested decision violates article 4(3) first subparagraph of Regulation (EC) No 1049/2001. Article 4(3) is not applicable to the protection of legal advice. Even if it were, the disclosure of the requested advice would not seriously undermine the Council’s decision-making process. Disclosure would not undermine the Legal Service’s capacity to represent the Council’s position in court proceedings free from all external influence as well as the independence of the Council’s Legal Service, nor impede internal discussions of the Council on the Parliament’s amendments.

In addition, the contested decision violates Article 4(2) last indent and Article 4(3) of Regulation (EC) No 1049/2001, for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal. The Council does not balance the protection of legal advice against the public interest in the document being made accessible in the light of the advantages stemming from increased openness and of the fact that access to the requested advice would enable citizens to participate more closely in the recast process of Regulation (EC) No 1049/2001, which concerns the public at large since it provides it with the basis on which to exercise its right to have access to documents held by EU institutions.

Finally, the contested decision violates Article 4(6) of Regulation (EC) No 1049/2001 for failure to provide partial access to the requested document.

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

4.12.2010

Official Journal of the European Union

C 328/38

Action brought on 24 September 2010 — Northern Ireland Department of Agriculture and Rural Development v Commission

(Case T-453/10)

()

2010/C 328/65

Language of the case: English

Parties

Applicants: Northern Ireland Department of Agriculture and Rural Development (Belfast, United Kingdom), (represented by: K. Brown, Solicitor and D. Wyatt QC, Barrister)

Defendant: European Commission

Form of order sought

—	Annul Commission Decision No 2010/399/EU (1) (notified under document C(2010) 4894) of 15 July 2010, to the extent of the entry relating to a 5 % flat-rate correction of expenditure amounting to 18 600 258,71 Euro incurred in Northern Ireland during the financial year 2007; and

—	Award costs against the defendant.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the partial annulment of Commission Decision No 2010/399/EU (notified under document C(2010) 4894) of 15 July 2010, to the extent it excluded from European Union financing the entry relating to a 5 % flat-rate correction of expenditure amounting to 18 600 258,71 Euro incurred in Northern Ireland during the financial year 2007.

In support of his appeal, the applicant submits the following pleas in law:

Firstly, the Commission reached its decision as regards the contested entry on the basis errors of law and fact since the deficiencies in the key controls identified by it and the possible consequences on the declaration of eligible hectares during the 2006 claim year could not have posed a risk of 5 % to the entirety of relevant expenditures in Northern Ireland during that year. Such over-declarations could not have increased the reference amounts derived from payments to farmers during the years 2000-2002, and accordingly, could only have increased the number, and not the value, of the payments entitlements established in 2005. Approximately 78 % of the amount of the payment entitlements to be allocated and divided between eligible hectares declared by farmers in 2005 was determined by payments to the farmers concerned during the years 2000-2002 and would remain unaffected by errors in determining the number of eligible hectares in 2005 which were repeated in 2006. Furthermore, the provisions for reductions and exclusions, or penalties, apply subject to the principle of retrospective adjustment of payment entitlements, and subject to the principle that where a farmer makes an over-declaration of eligible hectares and payment entitlements, but the area of land determined to be eligible is sufficient to activate all the payment entitlements to which he is actually entitled, no penalty is payable. The Commission has misinterpreted the provisions which lay down these principles, and accordingly significantly over-estimated the amounts recoverable from farmers in Northern Ireland in respect of over-declaration during the claim year 2006.

In addition, the Commission infringed the principle of proportionality since it has assessed the probable loss as being 5 % of the entirety of the expenditure incurred, even though the underlying principle to be applied in cases where it is not possible to make a precise assessment of losses to the relevant European Union funding funds is that the rate of correction must be clearly related to the probable loss. That assessment made by the Commission has been based on two erroneous premises; the first erroneous premise is that it is irrelevant hat errors in over-determination of eligible land in 2005 and 2006 could have had no adverse effect upon approximately 78 % of the total payment entitlements to be allocated to farmers, and accordingly could not to this extent have posed a risk to the funding. In addition, the second erroneous premise is that the Commission significantly over-estimated the amounts recoverable from farmers in Northern Ireland in the event of over-declarations in 2006. Finally, since the Commission’s application of a 5 % flat-rate reduction is based on a significant over-estimate of the actual probable loss to the European Union funding funds, it follows that in the circumstances of the case a 5 % flat-rate reduction was excessive, and thus disproportionate.

(1) Commission Decision of 15 July 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2010) 4894) (OJ 2010 L 184, p. 6).

4.12.2010

Official Journal of the European Union

C 328/39

Action brought on 30 September 2010 — Anicav v Commission

(Case T-454/10)

()

2010/C 328/66

Language of the case: English

Parties

Applicant: Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav) (Naples, Italy), (represented by: J. da Cruz Vilaça, S. Estima Martins and S. Carvalho de Sousa, lawyers)

Defendant: European Commission

Form of order sought

—	Annul the provisions of Article 52 and Annex VIII of Commission Regulation No 1580/2007 (1) as amended by Commission Regulation No 687/2010 (2); and

—	Order the defendant 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 partial annulment of Commission Regulation No 1580/2007 as amended by Commission Regulation No 687/2010.

In support of his appeal, the applicant submits the following pleas in law:

Firstly, the applicant alleges that the contested measure breaches the Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (the ‘Single CMO Regulation’) (OJ 2007 L 299, p. 1).

By failing to (i) include processing activities in Annex VIII of Commission Regulation No 1580/2007 and to (ii) exclude preparation, packaging and post-processing activities from the value of marketed production of products intended to be processed, the contested measure breaches the Single CMO Regulation, in so far as the latter establishes that the provisions on producer organisations, namely the granting of aid, shall apply only to products covered by the common market organisation for fruit and vegetables.

Secondly, ther applicant alleges that the contested measure breaches the principle of non-discrimination; by granting to producer organisations aid that covers industrial operations also carried out by private industries, the contested measure breaches the principle of non-discrimination which prohibits treating comparable situations differently, unless such treatment is objectively justified.

Finally, the applicant alleges that the contested measure breaches the principle of proportionality; by granting to producer organisations aid that covers industrial operations also carried out by private industries, the contested measure breaches the principle of proportionality in so far as it exceeds what would be necessary to achieve a hypothetical objective of the Common Agricultural Policy related to the vertical integration of producer organisations.

(1) Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350, p. 1).

(2) Commission Regulation (EU) No 687/2010 of 30 July 2010 amending Regulation (EC) No 1580/2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2010 L 199, p. 12).

4.12.2010

Official Journal of the European Union

C 328/39

Action brought on 27 September 2010 — McBride v Commission

(Case T-458/10)

()

2010/C 328/67

Language of the case: English

Parties

Applicant: Peter McBride (Downings, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4758 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Peadar Elaine II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court of Justice delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4758 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Peadar Elaine II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court of Justice delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application on the basis, of the use of replacement capacity from a number of smaller vessels for the Peadar Elaine II, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded.

Finally, the applicant alleges that the Commission breached the right to good administration. It is submitted that Commission’s refusal to assess the merits of his application constitutes a breach of its obligations under Article 41 of the Charter of Fundamental Rights of the European Union, and in particular, of his right to have his application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘fairly and within a reasonable time’.

4.12.2010

Official Journal of the European Union

C 328/40

Action brought on 27 September 2010 — McBride v Commission

(Case T-459/10)

()

2010/C 328/68

Language of the case: English

Parties

Applicant: Hugh McBride (Downings, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4748 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Heather Jane II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4748 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Heather Jane II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application on the basis, of the use of replacement capacity from a number of smaller vessels for the Heather Jane II, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded.

4.12.2010

Official Journal of the European Union

C 328/41

Action brought on 27 September 2010 — Mullglen v Commission

(Case T-460/10)

()

2010/C 328/69

Language of the case: English

Parties

Applicant: Mullglen Ltd (Killybegs, Ireland), (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4757 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Pacelli, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4757 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Pacelli, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. In particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Pacelli is manifestly flawed, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Pacelli.

Finally, the applicant alleges that the Commission breached the right to equal treatment. It is submitted that Commission’s rejection of the application because of the greater volume under the main deck of his proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compared to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Commission Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the Commission Decision notified under document C(2010) 4765 of 13 July 2010.

4.12.2010

Official Journal of the European Union

C 328/42

Action brought on 27 September 2010 — Boyle v Commission

(Case T-461/10)

()

2010/C 328/70

Language of the case: English

Parties

Applicant: Cathal Boyle (Killybegs, Ireland), (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4751 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Marie Dawn, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4751 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Marie Dawn, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Marie Dawn is manifestly flawed, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Marie Dawn.

4.12.2010

Official Journal of the European Union

C 328/43

Action brought on 27 September 2010 — Flaherty v Commission

(Case T-462/10)

()

2010/C 328/71

Language of the case: English

Parties

Applicant: Thomas Flaherty (Kilronan, Ireland), (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4764 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Westward Isle, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649; and

—	Order the defendant 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 notified under document C(2010) 4764 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Westward Isle, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

Secondly, the applicant sumits that the Commission breached an esential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursunat to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Westward Isle is manifestly flawded, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Westward Isle.

4.12.2010

Official Journal of the European Union

C 328/44

Action brought on 27 September 2010 — Ocean Trawlers v Commission

(Case T-463/10)

()

2010/C 328/72

Language of the case: English

Parties

Applicant: Ocean Trawlers Ltd (Killybegs, Ireland), (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4750 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Golden Rose, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649; and

—	Order the defendant 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 notified under document C(2010) 4750 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Golden Rose, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649.

In support of his application, the applicant submits the following pleas in law:

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Golden Rose is manifestly flawed, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Golden Rose.

4.12.2010

Official Journal of the European Union

C 328/45

Action brought on 27 September 2010 — Fitzpatrick v Commission

(Case T-464/10)

()

2010/C 328/73

Language of the case: English

Parties

Applicant: Patrick Fitzpatrick (Kileany, Ireland), (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4761 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Shauna Ann, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4761 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Shauna Ann, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application on that basis is unfounded, since the use of replacement capacity from a number of smaller vessels for the Shauna Ann meant that there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered.

Finally, the applicant alleges that the Commission breached the applicant’s right to good administration. It is submitted that Commission’s refusal to assess the merits of its application constitutes a breach of its obligations under Article 41 of Charter of Fundamnetal Rights of the European Union (OJ 2010 C 83, p. 389), and in particulr, of his right to have its application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘fairly and within a reasonable time’.

4.12.2010

Official Journal of the European Union

C 328/46

Action brought on 27 September 2010 — McHugh v Commission

(Case T-465/10)

()

2010/C 328/74

Language of the case: English

Parties

Applicant: Eamon McHugh (Killybegs, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4767 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new pelagic trawler, the Antartic, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4767 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new pelagic trawler, the Antartic, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. In particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel, the Antartic, as its assumption that the proposed new vessel’s ‘fishing effort’ is greater than that of the vessels replaced, are manifestly flawed.

Finally, the applicant alleges that the Commission breached its right to equal treatment. It is submitted that Commission’s rejection of his application because of the greater volume under the main deck of the proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compare to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Commission Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the decision contained in Commission Decision notified under document C(2010) 4765 of 13 July 2010.

4.12.2010

Official Journal of the European Union

C 328/47

Action brought on 27 September 2010 — Hannigan v Commission

(Case T-466/10)

()

2010/C 328/75

Language of the case: English

Parties

Applicant: Eugene Hannigan (Killybegs, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4754 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Niamh Eoghan, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

—	Order the defendant 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 notified under document C(2010) 4754 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Niamh Eoghan, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

In addition, it is submitted that the impugned decision contains a number of manifest errors in its assessment of the applicant’s application for safety tonnage. In particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the use of replacement capacity from a number of smaller vessels for the Niamh Eoghan, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded.

Finally, the applicant alleges that the Commission breached its right to good administration. It is submitted that Commission’s refusal to assess the merits of his application constitutes a breach of its obligations under article 41 of the Charter of Fundamental Rights of the European Union, and in particular, of his right to have his application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘firly and within a reasonable time’.

4.12.2010

Official Journal of the European Union

C 328/48

Action brought on 27 September 2010 — Murphy v Commission

(Case T-467/10)

()

2010/C 328/76

Language of the case: English

Parties

Applicant: Larry Murphy (Castletownbere, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision notified under document C(2010) 4753 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new pelagic trawler, to replace the MFV Menhaden, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649; and

—	Order the defendant 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 notified under document C(2010) 4753 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Menhaden, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649.

In support of his application, the applicant submits the following pleas in law:

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

Secondly, the applicant submits that the Commission breached an esential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursunat to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Menhaden is manifestly flawded, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Menhaden.

4.12.2010

Official Journal of the European Union

C 328/49

Action brought on 4 October 2010 — Portugal v Commission

(Case T-475/10)

()

2010/C 328/77

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, assisted by C. Botelho Moniz and P. Gouveia e Melo, lawyers)

Defendant: European Commission

Form of order sought

—	repeal Commission Decision C(2010) 4891 final of 20 July 2010, concerning the parafiscal charge to promote wine applied by Portugal — State aid No C-43/2004 (ex NN 38/2003); in the alternative, failing that,

—	annul the seventh and ninth conditions of Article 3(2) of the Decision; and, in either case,

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

Pleas in law and main arguments

(a)	Error of law, by infringing Article 107(1) of the EC Treaty by classifying as state resources that part of the proceeds of the promotional tax applied to funding support for the promotion and advertising of wine, under the terms of Decree-Law No 119/97 of 15 May;

(b)

Error of law, by infringing Articles 107(1) and 296 of the EC Treaty and of Commission Regulation (EC) No 1860/2004, (1) in so far as the Commission classified the support for the promotion and advertising of wine as public aid without analysing whether it is liable to restrict competition or whether it could constitute de minimis aid;

(c)

Error in assessing the facts, by finding that the promotional tax, as a mechanism to fund promotional and advertising initiatives in other Member States and third countries, discriminates against imported products and infringes Article 110 of the EC Treaty, and infringement of the principle of good administration, by not carrying out additional investigation measures after the request for information of 24 April 2006 in order to respond to the doubts that the Commission still had in this regard;

(d)

Error of law, regarding the application of Article 108 of the EC Treaty and Article 7(4) of Council Regulation (EC) No 659/1999, (2) and having regard to the principles of proportionality and of equal treatment, in so far as — even if one accepts the legality of the analysis carried out by the Commission in the Decision (which is not the case) — the seventh condition laid down in Article 3(2) of the Decision contradicts the analysis and the conclusions that the Commission presented in the grounds of the Decision;

e)	Error of law, in so far as the ninth condition laid down in Article 3(2) of the Decision infringes Articles 108 and 296 of the EC Treaty, Articles 6(1) and 7(4) of Council Regulation (EC) No 659/1999 (2), and also the principles of proportionality, of equal treatment and of the rights of defence.

(1) Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sectors.

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

4.12.2010

Official Journal of the European Union

C 328/50

Action brought on 8 October 2010 — The Pukka Luggage Company v OHIM — Jesus Miguel Azpiroz Arruti (PUKKA)

(Case T-483/10)

()

2010/C 328/78

Language in which the application was lodged: English

Parties

Applicant: The Pukka Luggage Company Ltd (London, United Kingdom) (represented by: K. E. Gilbert and M. H. Blair, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Jesús Miguel Azpiroz Arruti (San Sebastián, Spain)

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 29 July 2010 in case R 1175/2008-4;

—	In the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘luggage’;

—	Or in the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘hard suitcases, hard trolley cases’;

—	Order the defendant and the other party to the proceedings before the Board of Appeal to bear their costs of the proceedings as well as those incurred by the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘PUKKA’, for goods in class 18 — Community trade mark application No 4061545

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

Mark or sign cited: Spanish trade mark registration No 1570450 of the figurative mark ‘PUKAS’, for goods in class 18; Community trade mark registration No 19802 of the figurative mark ‘PUKAS’, for goods and services in classes 25, 28 and 39

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Rejected the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of the similarity of the goods and in its assessment of the similarity of the contested trade mark in relation to the earlier trade mark.

4.12.2010

Official Journal of the European Union

C 328/50

Action brought on 14 October 2010 — Gas Natural Fenosa SDG v Commission

(Case T-484/10)

()

2010/C 328/79

Language of the case: Spanish

Parties

Applicant: Gas Natural Fenosa SDG, SA (Madrid, Spain) (represented by: F. González Díaz and F. Salerno, lawyers)

Defendant: European Commission

Form of order sought

—	Annul, under Article 263 TFEU, the Decision of the European Commission of 29 September 2010;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The Decision challenged in these proceedings approves the Spanish legislation designed to pay compensation in respect of the additional costs borne by those electricity producers who, as a result of a public-service obligation, must ensure that a part of their production uses domestic coal.

Gas Natural Fenosa submits that the Decision is contrary to Community law and accordingly seeks its annulment on the basis of the following pleas:

1.	First, the Decision infringes Article 108(2) TFEU and Article 4(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (1) inasmuch as the disputed aid raises doubts as to its compatibility with the common market.

Second, the Decision infringes a number of provisions of primary and secondary law and the aid cannot therefore be regarded as compatible with the common market, namely:

—

Community legislation concerning the environment, specifically Article 4 TEU and Article 191 TFEU and the rules implementing environmental obligations and, in particular, Directive 2003/87/EC, as recently amended by Directive 2009/29/EC, (2) in that the contested measure promotes the operation of installations which increase the level of gas emissions into the atmosphere, is in breach of the prohibition on allocating new free emission allowances and promotes mining activities which represent a serious threat to the natural environment.

—

The Treaty rules concerning the internal market, specifically Articles 34 and 49 TFEU, since the measure impedes and renders more financially onerous the importation of electricity generated from coal other than Spanish coal and of gas as well as the plans for expanding the capacity for generating electricity from gas and/or imported coal.

—	Articles 101 and 102 TFEU in conjunction with Article 4(3) TEU, in that the measure promotes anti-competitive conduct on the part of producers of Spanish coal.

—	Article 126(1) TFEU, given that the contested measure entails an unnecessary and disproportionate increase in public costs.

—	Regulation (EC) No 1407/2002, (3) in that the contested measure authorises an increase in the volume of aid already granted by previous measures and causes a distortion in the market for the production of electric power.

Third, the Decision infringes Articles 3(2) and 11(4) of the Second Electricity Market Directive (Directive 2003/54/EC) (4) and Article 106(2) TFEU as well as the Community framework for state aid in the form of public service compensation and the principle of proportionality, since (i) the conditions laid down by those provisions for the establishment of a service of general economic interest for reasons of security of supply are not met and (ii) in any event, there are other less costly ways of achieving the objectives pursued by the contested measure.

(1) OJ 1999 L 83, p. 1.

(2) Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ 2009 L 140, p. 63).

(3) Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1).

(4) Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37).

4.12.2010

Official Journal of the European Union

C 328/51

Action brought on 14 October 2010 — Iberdrola v Commission

(Case T-486/10)

()

2010/C 328/80

Language of the case: Spanish

Parties

Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado and E. Barbier de la Serre, lawyers)

Defendant: European Commission

Form of order sought

—	Annul the Decision;

—	order the Commission to pay all the costs incurred in the proceedings.

Pleas in law and main arguments

This action is brought against the same decision as that challenged in Case T-484/10 Gas Natural Fenosa SDG v Commission and Case T-490/10 Endesa v Commission.

In the applicant’s submission, the Commission made a series of errors of law and manifest errors of assessment in holding, following a preliminary examination in accordance with Article 4(3) of Regulation (EC) No 659/1999, (1) that the public service compensation notified by the Kingdom of Spain was justified pursuant to the EU rules on State aids. The applicant puts forward five pleas in support of its application for annulment.

First, the applicant complains that the Commission failed to initiate the formal investigation procedure provided for in Article 4(4) of the Regulation, although there were serious doubts as to the compatibility of the notified aid with the internal market. Accordingly, the applicant claims that the Commission clearly infringed Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999.

By its second plea, which is in two parts, the applicant submits, in the first part, that the Commission made errors of law and of assessment in holding that the measure notified by the Kingdom of Spain reflects the need to pay compensation in respect of the cost of supplying a service of general economic interest, justified on grounds of security of supply, although there are no problems of security of supply and it is not anticipated that any will arise in the medium term. In the second part of the plea, the applicant claims that the Commission made a manifest error of assessment in finding the measure notified by the Kingdom of Spain to be compatible with the internal market on the basis of Article 106(2) TFEU and the Third Electricity Directive [2009/72/EC].

By its third plea, the applicant argues that the State aid authorised by the Commission breaches the temporal and material limits laid down in Regulation (EC) No 1407/2002 (2) and in the Proposal for a Council Regulation concerning State aid to facilitate the closure of uncompetitive coal mines.

By its fourth plea, the applicant maintains that the Commission has acted in breach of the principle of sound administration, which requires it to examine with due care and attention and in an impartial manner all relevant aspects of the matter, since it failed to deem it appropriate to seek all the opinions necessary for it to be fully informed about all data relevant to the case before adopting its decision and, instead, approved the notified measure at the preliminary stage.

By its fifth plea, which is in three parts, the applicant submits that the Commission has infringed the principle established by the case-law which prevents the Commission from declaring compatible with the internal market State aid that infringes other provisions of the Treaty: in particular, the Commission disregarded the fact that the measure infringes the rules which give effect to the principle of free movement of goods, the objectives pursued by the directives concerning the internal market for electricity and the European Union’s objectives concerning sustainability.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2) Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1).

4.12.2010

Official Journal of the European Union

C 328/52

Action brought on 14 October 2010 — Endesa and Endesa Generación v Commission

(Case T-490/10)

()

2010/C 328/81

Language of the case: Spanish

Parties

Applicants: Endesa, SA (Madrid, Spain), Endesa Generación, SA (Seville, Spain), (represented by: M. Merola, lawyer)

Defendant: European Commission

Form of order sought

—	Declare the application for annulment admissible;

—	Declare the application to be founded and annul the Decision in its entirety;

—	order the Commission to pay all the costs incurred by the applicants.

Pleas in law and main arguments

This action is brought against the same decision as that challenged in Case T-484/10 Gas Natural Fenosa SDG v Commission and Case T-486/10 Iberdrola v Commission.

The applicants put forward three pleas in support of their action:

The first plea in law alleges that the Commission made a manifest error when it concluded that the notified measure was covered by Directive 2003/54/EC. (1) In relation to that plea, the applicants claim that:

—

The Commission made a manifest error in having interpreted Article 11(4) of Directive 2003/54/EC as not requiring the national authorities to put forward, and prove the existence of, reasons concerning security of supply in order to be able to adopt measures which are incompatible with the rules pursuing harmonisation in the directive. Such an interpretation is in breach of the obligation to give a restrictive interpretation to a provision establishing an exception.

—

The Commission’s interpretation of Article 11(4) of Directive 2003/54/EC would mean that Member States could make indefinite use of a rule which may, by virtue of Article 114 of the Treaty, be of only transitory application. The Commission’s interpretation is therefore incompatible with the legal basis of Directive 2003/54/EC.

—	The Commission made a manifest error in having calculated the 15 % threshold laid down in Directive 2003/54/EC in such a way that it does not have the practical effect sought by the European Union legislature.

—	The Commission made a manifest error given that there are no problems of security of supply in Spain such as to justify the adoption of the notified measure.

—

The notified measure does not comply with the conditions laid down in Article 3(2) of Directive 2003/54/EC, which provides that public service obligations must be clearly defined, transparent, non discriminatory, verifiable and must guarantee equality of access for EU electricity companies to national consumers.

The second plea alleges that the Commission made a manifest error in holding that Article 106(2) of the Treaty is applicable to the notified measure. On the basis of that, the applicants maintain that:

—	The Commission made a manifest error in taking the view that the provision made by Article 11(4) of Directive 2003/54/EC renders it unnecessary to consider whether in the present case the mandatory conditions for establishing a public service obligation is met.

—	The Commission made a manifest error in failing to assess the proportionality of the notified measure correctly and in having limited that analysis to determining that the compensation was not excessive.

—	In its application of Article 106(2) of the Treaty, the Commission failed to assess the infringement which the notified measure entailed for the right to property laid down in the Charter of Fundamental Rights of the European Union.

In relation to their third plea, concerning infringement of certain rules relating to procedural matters, the applicants claim that:

—

The Commission infringed Article 108 of the Treaty and Article 4(4) of Regulation (EC) No 659/1999 (2) in failing to initiate a formal investigation procedure, despite the fact that there was objective and coherent evidence showing that the assessment of the compatibility of the notified measure entailed serious difficulties.

—	In using the pre-notification phase in order to avoid opening a formal investigation procedure, the Commission misused its powers.

(1) Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37).

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

4.12.2010

Official Journal of the European Union

C 328/53

Action brought on 7 October 2010 — Melli Bank v Council

(Case T-492/10)

()

2010/C 328/82

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 5 of Table B of Annex II to Council Decision 2010/413/CFSP (1) in so far as it relates to the applicant;

—	annul paragraph 3 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (2) in so far as it relates to the applicant;

—	declare Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) inapplicable to the applicant; and

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Implementing Regulation No 668/2010 and of Council Decision 2010/413/CFSP in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. Furthermore, the applicant applies, in accordance with Article 277 TFUE, for the inapplicability of Article 7(2)(d) of Council Regulation (EC) No 423/2007.

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

First, the applicant argues that the contested regulation and decision were adopted in violation of the applicant’s rights of defence and its right to effective judicial protection since the reasons given by the Council are insufficient for the applicant to understand the basis on which it has been designated and has consequently had its assets frozen. Furthermore, the applicant claims that the Council has failed to provide it with the evidence and/or documents from the file on which the Council has relied and accordingly the applicant has been unable to make effective representations regarding its designation.

Second, the applicant contends that the substantive criteria for its designation are not met and/or the Council committed a manifest error of assessment in determining whether or not those criteria were met. The applicant states that it is not ‘owned or controlled’ by an entity engaged in, directly associated with, or providing support for, Iran’s alleged proliferation-sensitive nuclear activities or development of nuclear weapon delivery systems within the meaning given to the expression ‘owned or controlled’ in Melli Bank v Council Court’s judgment (T-246/08) (4).

Third, the applicant argues that in so far as Article 7(2)(d) of Council Regulation (EC) No 423/2007 and/or Article 20(1)(b) of Council Decision 2010/413/CFSP are mandatory and require the Council to designate any subsidiary of a designated parent, the same are unlawful.

Fourth, the applicant submits that the substantive criteria for the designation of its parent and therefore the applicant are not met and/or the Council committed a manifest error of assessment in determining whether or not those criteria were met. The applicant argues that in so far as its parent is successful in its challenges to Council Regulation (EC) No 1100/2009 (5) (Case T-35/10) (6) and Council Decision 2008/475/EC (7) (Case T-390/08 (8)), Council Implementing Regulation (EU) No 668/2010 and Council Decision 2010/413/CFSP must be annulled in so far as they apply to the applicant.

Fifth, the applicant claims that its designation and the freezing of all its assets worldwide have no rational relationship with the aim being pursued by the Council and violates its right to property. Further it contends that the restrictive measures imposed are disproportionate in that they inflict considerable harm on the applicant and are not the least restrictive means that could have been employed.

(1) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

(2) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran, OJ 2007 L 103, p. 1

(4) Joint Cases T-246/08 et T-332/08, Melli Bank v Council, [2009] ECR II-2629, currently under appeal as Case C-380/09 P, Melli Bank v Council, OJ 2009 C 282, p. 30

(5) Council Regulation (EC) No 1100/2009 of 17 November 2009 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran and repealing Decision 2008/475/EC, OJ 2009 L 303, p. 31

(6) Case T-35/10, Bank Melli Iran v Council, OJ 2010 C 100, p. 47

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

(8) Joint Case T-390/08, Bank Melli Iran v Council, [2009] ECR II-3967, currently under appeal as Case C-548/09 P, Bank Melli Iran v Council, OJ 2010 C 80, p. 10

4.12.2010

Official Journal of the European Union

C 328/54

Action brought on 7 October 2010 — Persia International Bank v Council

(Case T-493/10)

()

2010/C 328/83

Language of the case: English

Parties

Applicant: Persia International Bank plc (London, United Kingdom) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 2 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

—	annul paragraph 4 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

—	declare Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) inapplicable to the applicant; and

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran, OJ 2007 L 103, p. 1

4.12.2010

Official Journal of the European Union

C 328/55

Action brought on 7 October 2010 — Bank Saderat Iran v Council

(Case T-494/10)

()

2010/C 328/84

Language of the case: English

Parties

Applicant: Bank Saderat Iran (Tehran, Iran) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

—	annul paragraph 7 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

The three pleas in law relied on by the applicant are identical or similar to the first, second and fifth pleas relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

4.12.2010

Official Journal of the European Union

C 328/55

Action brought on 7 October 2010 — Bank Saderat v Council

(Case T-495/10)

()

2010/C 328/85

Language of the case: English

Parties

Applicant: Bank Saderat plc (London, United Kingdom) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

—	annul paragraph 7 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

—	declare Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) inapplicable to the applicant; and

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran, OJ 2007 L 103, p. 1

4.12.2010

Official Journal of the European Union

C 328/56

Action brought on 7 October 2010 — Bank Mellat v Council

(Case T-496/10)

()

2010/C 328/86

Language of the case: English

Parties

Applicant: Bank Mellat (Tehran, Iran) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 2 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

—	annul paragraph 4 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

The three pleas in law relied on by the applicant are identical or similar to the first, second and fifth pleas relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

4.12.2010

Official Journal of the European Union

C 328/56

Action brought on 7 October 2010 — Divandari v Council

(Case T-497/10)

()

2010/C 328/87

Language of the case: English

Parties

Applicant: Ali Divandari (Tehran, Iran) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Wyatt, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 1 of Table A of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

—	annul paragraph 2 of Table A of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

—	order the Council to pay the costs of the application.

Pleas in law and main arguments

The four pleas in law relied on by the applicant are identical or similar to the first, second and fifth pleas relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

4.12.2010

Official Journal of the European Union

C 328/58

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Vivier v Commission

(Case F-29/05) (1)

(Civil service - Members of the temporary staff - Classification in grade - Grades laid down in the call for applications - Amendment of the rules governing classification of staff - Transitional provisions - Article 12(3) of Annex XIII to the Staff Regulations - Application by analogy)

2010/C 328/91

Language of the case: French

Parties

Applicant: Jean-François Vivier (Petten, Netherlands) (represented by: initially, S. Orlandi, A. Coolen and É. Marchal, lawyers, subsequently by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: initially, H. Krämer and K. Herrmann, acting as Agents, subsequently by J. Currall, acting as Agent)

Re:

Annulment of the Commission’s decision classifying the applicant at grade A*6 at the time of his recruitment as a member of the temporary staff

Operative part of the judgment

The Tribunal:

1.	Annuls the European Commission’s classification decision, as annexed to the amendment of 21 July 2004 to the temporary staff contract signed by Mr Vivier on 10 June 2004;

2.	Orders the European Commission to bear its own costs and to pay the costs of Mr Vivier.

(1) OJ C 193, 6.8.2005, p. 31. (Case originally registered at the Court of First Instance of the European Communities as Case T-196/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)

4.12.2010

Official Journal of the European Union

C 328/58

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Gudrun Schulze v European Commission

(Case F-36/05) (1)

(Civil service - Officials - Appointment - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules governing classification in grade at the time of recruitment - Classification in step - Article 32 of the Staff Regulations - Articles 2, 5 and 12 of Annex XIII to the Staff Regulations - Discrimination on grounds of age - Equal pay for work of equal value - Principle of good administration - Duty to have regard for the welfare of officials)

2010/C 328/92

Language of the case: French

Parties

Applicant: Gudrun Schulze (Brussels, Belgium) (represented by: initially, S. Rodrigues and A. Jaume, lawyers, and subsequently by S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Šulce, acting as Agents)

Re:

First, annulment of the Commission’s decision classifying the applicant, who was placed on a reserve list prior to the entry into force of the new Staff Regulations, under the less favourable provisions of those regulations (Article 12 of Annex XIII to Regulation (EC, Euratom) No 723/2004 amending the Staff Regulations of Officials) and, second, an application for damages

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders each party to bear its own costs.

(1) OJ C 193, 6.8.2005, p. 36. (Case originally registered at the Court of First Instance of the European Communities as Case T-207/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)

4.12.2010

Official Journal of the European Union

C 328/59

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Jacobs v Commission

(Case F-41/05) (1)

(Civil service - Officials - Appointment - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Classification in grade under the new, less favourable rules - Article 12(3) of Annex XIII to the Staff Regulations)

2010/C 328/93

Language of the case: French

Parties

Applicant: Kurt Jacobs (Bruges, Belgium) (represented by: L. Vogel, lawyer)

Defendant: European Commission (represented by: H. Krämer and K. Herrmann, acting as Agents)

Re:

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders each party to bear its own costs.

(1) OJ C 205, 20.8.2005, p. 26. (Case originally registered at the Court of First Instance of the European Communities as Case T-220/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)

4.12.2010

Official Journal of the European Union

C 328/59

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Torijano Montero v Council

(Case F-76/05) (1)

(Civil service - Officials - Appointment - Candidates placed on a reserve list of a competition published prior to the entry into force of the new Staff Regulations - Classification in grade under the new, less favourable rules - Article 5 of the Staff Regulations - Article 12 of Annex XIII to the Staff Regulations - Principle of equality - Principle of protection of legitimate expectations - Duty to have regard for the welfare of officials - Proportionality)

2010/C 328/94

Language of the case: French

Parties

Applicant: Javier Torijano Montero (Brussels, Belgium) (represented by: initially, S. Rodrigues and A. Jaume, lawyers, and subsequently, S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Sulce, acting as Agents)

Re:

Annulment of the Council’s decision classifying the applicant, who was placed on a reserve list prior to the entry into force of the new Staff Regulations, under the less favourable provisions of those regulations (Article 12 of Annex XIII to Regulation (EC, Euratom) No 723/2004 amending the Staff Regulations of Officials)

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders each party to bear its own costs.

(1) OJ C 281, 12.11.2005, p. 23. (Case originally registered at the Court of First Instance of the European Communities as Case T-302/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)

4.12.2010

Official Journal of the European Union

C 328/59

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Toth v Commission

(Case F-107/05) (1)

(Civil service - Member of the temporary staff - Classification in grade - Grades laid down in the call for applications - Amendment of the rules governing classification of members of the temporary staff after publication of the call for applications - Classification in grade under the new, less favourable rules - Transitional provisions - Application by analogy - Article 12(3) of Annex XIII to the Staff Regulations - Proportionality - Principle of good administration)

2010/C 328/95

Language of the case: French

Parties

Applicant: Gergely Toth (Besozzo, Italie) (represented by: initially, S. Rodrigues and Y. Minatchy, lawyers, subsequently by S. Rodrigues, C. Bernard-Glanz and R. Albelice, lawyers, and finally by S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Šulce, acting as Agents, and subsequently by K. Zieleśkiewicz and M. Bauer, acting as Agents)

Re:

First, annulment of the Commission’s decision classifying the applicant at grade A*6 on his appointment as a member of the temporary staff and, secondly, an application for damages

Operative part of the judgment

The Tribunal:

1.	Annuls the European Commission’s decision classifying Mr Toth at grade A*6, step 2, contained in Article 3 of the temporary staff contract signed on 17 January 2005;

2.	Dismisses the remainder of the application;

3.	Orders the European Commission to bear its own costs and to pay the costs of the applicant.

4.	Orders the Council of the European Union, intervener, to bear its own costs.

(1) OJ C 22, 28.1.2006, p. 15. (Case originally registered at the Court of First Instance of the European Communities as Case T-401/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)

4.12.2010

Official Journal of the European Union

C 328/60

Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — de Luca v Commission

(Case F-20/06) (1)

(Civil service - Officials - Appointment - Officials advancing to a higher function group by open competition - Candidate placed on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules governing classification in grade at the time of recruitment - Classification in grade pursuant to the new, less favourable rules - Article 5(2) and Article 12(3) of Annex XIII to the Staff Regulations)

2010/C 328/96

Language of the case: French

Parties

Applicant: Patricia de Luca (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and M. Simm, acting as Agents)

Re:

Annulment of the Commission’s decision of 23 February 2005 appointing the applicant, an official already graded at A*10 and a successful candidate in a competition for grades A5/A4, to a post as an administrator in the Directorate-General for Justice, Freedom and Security in so far as it alters her classification in grade from A*10 to A*9

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders each party to bear its own costs.

(1) OJ C 108, 6.5.2006, p. 31.

4.12.2010

Official Journal of the European Union

C 328/60

Judgment of the Civil Service Tribunal (Third Chamber) of 30 September 2010 — Lebedef and Jones v Commission

(Case F-29/09) (1)

(Civil Service - Officials - Remuneration - Article 64 of the Staff Regulations - First subparagraph of Article 3(5) and Article 9 of Annex XI to the Staff Regulations - Weighting - Equal treatment)

2010/C 328/97

Language of the case: French

Parties

Applicant: Georgio Lebedef (Senningerberg, Luxembourg) and Trevor Jones (Ernzen, Luxembourg) (represented by: F. Frabetti and J.-Y. Vergnaud, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: K. Zieleśkiewicz and M. Bauer, acting as Agents)

Re:

Application for annulment of the decision refusing to bring the purchasing power of remunerations in Luxembourg to a level equivalent to that of the purchasing power of remunerations in Brussels and, in the alternative, application for annulment of the applicants’ remuneration statements issued with effect from 15 June 2008.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Lebedef and Mr Jones to pay all the costs, with the exception of those incurred by the Council of the European Union;

3.	Orders the Council of the European Union, intervener, to bear its own costs.

(1) OJ C 129, 6.6.2009, p. 21.

4.12.2010

Official Journal of the European Union

C 328/61

Judgment of the Civil Service Tribunal (Second Chamber) of 14 October 2010 — W v Commission

(Case F-86/09) (1)

(Civil Service - Contractual agents - Remuneration - Family benefits - Couple of persons of the same sex - Household allowance - Condition governing the grant - Access to legal marriage - Notion - Article 1(2)(c)(iv) of Annex VII to the Staff Regulations)

2010/C 328/98

Language of the case: French

Parties

Applicant: W (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Annulment of the decision not to grant the household allowance to the applicant on the ground that the applicant and his partner have access to legal marriage in Belgium

Operative part of the judgment

The Tribunal:

1.	Annuls the decisions of the Commission of 5 March 2009 and 17 July 2009 refusing W the benefit of the grant of the household allowance provided for in Article 1 of Annex VII to the Staff Regulations of the European Union;

2.	Orders the European Commission to pay all the costs.

(1) OJ C 11, 16.1.2010, p. 40.

4.12.2010

Official Journal of the European Union

C 328/61

Action brought on 4 October 2010 — Blessemaille v Parliament

(Case F-93/10)

()

2010/C 328/100

Language of the case: French

Parties

Applicant: Philippe Blessemaille (Remich, Luxembourg) (represented by: E. Boigelot and S. Woog, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Application for annulment of the defendant’s decision not to include the applicant on the list of officials promoted to grade AST 8 under the 2009 promotion procedure and for compensation in respect of the non-material damage suffered

Form of order sought

—	Annul the decision of the Parliament, published on 2 December 2009, not to include the applicant on the list of officials promoted from grade AST 7 to grade AST 8 under the 2009 promotion procedure;

—

As a result of that annulment, carry out a new comparative examination of the merits of the applicant and the other candidates under the 2008 and 2009 promotion procedures and accord to the applicant the promotion to grade AST 8 with retroactive effect as from 1 January 2008 as well the payment of interest on arrears of remuneration as from 1 January 2008 at two points above the European Central Bank rate for main refinancing operations, without, however, calling into question the promotions of the other officials promoted;

—	Order the Parliament to pay to the applicant the sum of EUR 3 500 as compensation for the non-material damage suffered as a result of his not being promoted on 1 January 2008, subject to the possibility of an increase in the course of the proceedings;

—

In the alternative, if the Tribunal should take the view that the promotion to grade AST 8 cannot take effect before 1 January 2009, order the Parliament to pay additional damages as compensation for material damage of an amount corresponding to the difference in salary between that actually received in 2008 and that which should have been received in 2008 following the promotion on 1 January 2008, and calculated in respect of the period either from 1 January to 31 December 2008 or from 1 January to 31 August 2008, depending on the date on which the disputed promotion is deemed to have taken effect (respectively 1 January 2009 or 1 September 2008);

—	Order the Parliament to pay the costs.

4.12.2010

Official Journal of the European Union

C 328/62

Action brought on 8 October 2010 — Eberhard Bömcke v EIB

(Case F-95/10)

()

2010/C 328/101

Language of the case: French

Parties

Applicant: Eberhard Bömcke (Athus, Belgium) (represented by: D. Lagasse, lawyer)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the decision taken by the Director of Human Resources of the defendant confirming that the applicant’s mandate as staff representative has expired and application for damages

Form of order sought

—	Annul the decision of the Director of Human Resources of the EIB notified to the applicant by letter of 22 September 2010 and received on 24 September 2010;

—	Order the EIB to pay compensation for the non-material harm caused to the applicant by the above decision and in that regard award him the sum of EUR 25 000;

—	Order the EIB to pay the costs.

		ISSN 1725-2423 doi:10.3000/17252423.C_2010.328.eng
Official Journal of the European Union		C 328

English edition	Information and Notices	Volume 53 4 December 2010

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2010/C 328/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 317, 20.11.2010	1