30.7.2011

Official Journal of the European Union

C 226/2

Judgment of the Court (First Chamber) of 16 June 2011 (references for a preliminary ruling from the Bundesgerichtshof, Amtsgericht Schorndorf (Germany)) — Gebr. Weber GmbH v Jürgen Wittmer (C-65/09), Ingrid Putz v Medianess Electronics GmbH

(Joined Cases C-65/09 and C-87/09) (1)

(Consumer protection - Sale of consumer goods and associated guarantees - Directive 1999/44/EC - Article 3(2) and (3) - Replacement of defective goods as the only remedy - Defective goods already installed by the consumer - Obligation on the seller to remove the defective goods and install the replacement goods - Absolute lack of proportionality - Consequences)

2011/C 226/02

Language of the case: German

Referring courts

Bundesgerichtshof, Amtsgericht Schorndorf

Parties to the main proceedings

Applicants: Gebr. Weber GmbH (C-65/09), Ingrid Putz (C-87/09)

Defendants: Jürgen Wittmer (C-65/09), Medianess Electronics GmbH (C-87/09)

Re:

References for a preliminary ruling — Bundesgerichtshof, Amtsgericht Schorndorf — Interpretation of Article 3(2) and (3) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12) — Sale to a consumer of goods lacking conformity through no fault of the seller — Goods correctly installed by the consumer — National legislation under which, in the absence of other forms of remedy, the seller is not obliged to replace goods lacking conformity if the cost would be unreasonable — Compatibility of that legislation with the Community provisions cited above — If incompatible, interpretation of the concept of ‘replacement free of charge’ in Article 3(3) of the above directive — Liability of the seller for the cost of dismantling goods lacking conformity correctly installed by the consumer

Operative part of the judgment

Article 3(2) and (3) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as meaning that, where consumer goods not in conformity with the contract which were installed in good faith by the consumer in a manner consistent with their nature and purpose, before the defect became apparent, are restored to conformity by way of replacement, the seller is obliged either to remove the goods from where they were installed and to install the replacement goods there or else to bear the cost of that removal and installation of the replacement goods. That obligation on the seller exists regardless of whether he was obliged under the contract of sale to install the consumer goods originally purchased.

Article 3(3) of Directive 1999/44 must be interpreted as precluding national legislation from granting the seller the right to refuse to replace goods not in conformity, as the only remedy possible, on the ground that, because of the obligation to remove the goods from where they were installed and to install the replacement goods there, replacement imposes costs on him which are disproportionate with regard to the value that the goods would have if there were no lack of conformity and the significance of the lack of conformity. That provision does not, however, preclude the consumer’s right to reimbursement of the cost of removing the defective goods and of installing the replacement goods from being limited, in such a case, to the payment by the seller of a proportionate amount.

(1) OJ C 90, 18.4.2009.

30.7.2011

Official Journal of the European Union

C 226/3

Judgment of the Court (Third Chamber) of 9 June 2011 — Comitato ‘Venezia vuole vivere’ (C-71/09 P), Hotel Cipriani Srl (C-73/09 P), Società Italiana per il gas SpA (Italgas) (C-76/09 P) v Coopservice — Servizi di fiducia Soc. coop. rl, European Commission, Italian Republic

(Joined Cases C-71/09 P, C-73/09 P and C-76/09 P) (1)

(Appeals - Actions for annulment - Admissibility - Locus standi - Interest in bringing an action - Objection of lis alibi pendens - State aid - Multisectoral aid scheme - Reductions in social security contributions - Decision 2000/394/EC - Compensatory nature - Whether intra-Community trade affected - Impact on competition - Extent of control - Burden of proof - Duty to state reasons - Article 87(2)(b) and (3)(b) to (d) EC - Regulation (EC) No 659/1999 - Articles 14 and 15)

2011/C 226/03

Language of the case: Italian

Parties

Appellants: Comitato «Venezia vuole vivere» (represented by: A. Vianello, avvocato) (C-71/09 P), Hotel Cipriani Srl (represented by: A. Bianchini and F. Busetto, avvocati) (C-73/09 P), Società Italiana per il gas SpA (Italgas) (represented by: M. Merola, M. Pappalardo and T. Ubaldi, avvocati) (C-76/09 P)

Other parties to the proceedings: Coopservice — Servizi di fiducia Soc. coop. rl (represented by: A. Bianchini, avvocato), European Commission (represented by: V. Di Bucci and E. Righini, Agents, assisted by A. Dal Ferro, avvocato), Italian Republic (represented by: I. Bruni, and subsequently by G. Palmieri, Agents, assisted by P. Gentili, avvocato dello Stato)

Re:

Appeal brought against the judgment in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission by which the Court of First Instance (Sixth Chamber, Extended Composition) dismissed the actions for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50)

Operative part of the judgment

The Court:

1.	Dismisses the appeals of the Comitato ‘Venezia vuole vivere’, Hotel Cipriani Srl and Società Italiana per il gas SpA (Italgas) and the cross-appeal of Coopservice — Servizi di fiducia Soc. coop. rl;

2.	Dismisses the cross-appeal of the European Commission;

3.	Orders the Comitato ‘Venezia vuole vivere’, Hotel Cipriani Srl, Società Italiana per il gas SpA (Italgas) and Coopservice — Servizi di fiducia Soc. coop. rl to pay in equal shares the costs relating to the main appeals and to the cross-appeal of the latter;

4.	Orders the European Commission to pay the costs in relation to its cross-appeal;

5.	Orders the Italian Republic to bear its own costs.

(1) OJ C 113, 16.5.2009.

30.7.2011

Official Journal of the European Union

C 226/3

Judgment of the Court (Fourth Chamber) of 9 June 2011 — European Commission v French Republic

(Case C-383/09) (1)

(Failure of a Member State to fulfil obligations - Habitats Directive - Inadequacy of measures taken to protect the species Cricetus cricetus (European hamster) - Deterioration of habitats)

2011/C 226/04

Language of the case: French

Parties

Applicant: European Commission (represented by: O. Beynet and D. Recchia, Agents)

Defendant: French Republic (represented by: G. de Bergues and S. Menez, Agents)

Re:

Failure of a Member State to fulfil its obligations — Failure to take the measures necessary to comply with Article 12(1)(d) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora de (OJ 1992 L 206, p. 7) — Inadequacy of measures taken to protect the species Cricetus cricetus (European Hamster) — Deterioration of habitats

Operative part of the judgment

The Court:

Declares that, by failing to establish a programme of measures to ensure strict protection of the European hamster (Cricetus cricetus), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2006/105/EC of 20 November 2006;

2.	Orders the French Republic to pay the costs.

(1) OJ C 312, 19.12.2009.

30.7.2011

Official Journal of the European Union

C 226/4

Judgment of the Court (Third Chamber) of 9 June 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Central Bank

(Case C-401/09 P) (1)

(Appeal - Admissibility - Power of attorney - Consortium - Public contracts - Negotiated procedure - IT consultancy and IT development services - Rejection of the tender - Rules of Procedure of the General Court - Interest in bringing proceedings - Ground for exclusion - Permit required by national law - Obligation to state reasons)

2011/C 226/05

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, dikigoros)

Other party to the proceedings: European Central Bank (represented by: F. von Lindeiner and G. Gruber, Agents)

Re:

Appeal brought against the order of the Court of First Instance (Fourth Chamber) of 2 July 2009 in Case T-279/06 Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Central Bank (ECB) dismissing an action for annulment of the decision of the European Central Bank (ECB) of 31 July 2006 rejecting the tender submitted by the applicant in the negotiated procedure for the provision of IT consultancy and IT development services to the ECB (OJ 2005 S 137-135345) and of the decision to award the contract to another tenderer

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

(1) OJ C 11, 16.1.2010.

30.7.2011

Official Journal of the European Union

C 226/4

Judgment of the Court (Third Chamber) of 9 June 2011 (reference for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal)) — José Maria Ambrósio Lavrador, Maria Cândida Olival Ferreira Bonifácio v Companhia de Seguros Fidelidade-Mundial SA

(Case C-409/09) (1)

(Insurance against civil liability in respect of the use of motor vehicles - Directives 72/166/EEC, 84/5/EEC and 90/232/EEC - Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles - Conditions for limitation - Victim’s contribution to his own loss or injury - Liability for risk - Provisions applicable to a child third party who is the victim of an accident)

2011/C 226/06

Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings

Applicants: José Maria Ambrósio Lavrador, Maria Cândida Olival Ferreira Bonifácio

Defendant: Companhia de Seguros Fidelidade-Mundial SA

Re:

Reference for a preliminary ruling — Supremo Tribunal de Justiça — Interpretation of Article 1 of the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33) — Extent of compulsory third party insurance cover — Provisions applicable to third party victims of an accident who are minors

Operative part of the judgment

The Court (Third Chamber) hereby rules:

Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, must be interpreted as not precluding national provisions falling within civil liability law that allow exclusion or limitation of the right of the victim of an accident to claim compensation under the civil liability insurance of the motor vehicle involved in the accident, on the basis of an individual assessment of the exclusive or partial contribution of that victim to his own loss or injury.

(1) OJ C 11, 16.1.2010.

30.7.2011

Official Journal of the European Union

C 226/5

Judgment of the Court (Third Chamber) of 9 June 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-465/09 P and C-468/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-466/09 P and C-469/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-467/09 P and C-470/09 P) v European Commission, Comunidad autónoma del País Vasco — Gobierno Vasco, Comunidad autónoma de La Rioja, Confederación Empresarial Vasca (Confebask)

(Case C-465/09 P) (1)

(Appeals - State aid - Action for annulment - Decision initiating the formal investigation procedure under Article 88(2) EC - Subsequent final decisions finding that State aid schemes implemented by Spain in 1993 for certain newly established firms in Álava, Vizcaya and Guipúzcoa were not compatible with the common market - Corporation tax exemptions - Lis pendens - Concept of ‘authorised aid’ - Legitimate expectations - Compliance with a reasonable time-limit - No notification)

2011/C 226/07

Language of the case: Spanish

Parties

Appellants: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-465/09 P and C-468/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-466/09 P and C-469/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-467/09 P and C-470/09 P) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados)

Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre and C. Urraca Caviedes, Agents), Comunidad autónoma del País Vasco — Gobierno Vasco (I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados), Comunidad autónoma de La Rioja (J. Criado Gámez and M. Martínez Aguirre, abogados), Confederación Empresarial Vasca (Confebask)

Intervener in support of the appellants: Kingdom of Spain (N. Díaz Abad)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 9 September 2009 in Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 Diputación Foral de Álava and Others v Commission, by which the Court held, in Cases T-30/01 to T-32/01, that there was no longer any need to adjudicate on an application for annulment of Commission Decision of 28 November 2000 to initiate the procedure under Article 88(2) EC in relation to the tax advantages in the form of corporation tax exemption for certain newly established firms granted by provisions adopted by the Diputación Foral de Álava, the Diputación Foral de Guipúzcoa and the Diputación Foral de Vizcaya, in the form of corporation tax exemption for certain newly established firms and, in Cases T-86/02 to T-88/02, dismissed an application for annulment of Commission Decisions 2003/28/EC, 2003/86/EC and 2003/192/EC of 20 December 2001 on a State aid scheme in the form of corporation tax exemption implemented by Spain in 1993 for certain newly established firms in Álava (T-86/02), Vizcaya (T-87/02) and Guipúzcoa (T-88/02) (OJ 2003 L 17, p. 20, OJ 2003 L 40, p. 11, and OJ 2003 L 77, p. 1, respectively)

Operative part of the judgment

The Court:

1.	Dismisses the appeals.

2.	Orders the Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, the Territorio Histórico de Álava — Diputación Foral de Álava and the Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa to pay in equal shares the costs relating to the present appeals.

3.	Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 37, 13.02.2011.

30.7.2011

Official Journal of the European Union

C 226/5

Judgment of the Court (Third Chamber) of 9 June 2011 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Eleftheri tileorasi AE ‘ALTER CHANNEL’, Konstantinos Giannikos v Ipourgos Tipou kai Meson Mazikis Enimerosis, Ethniko Simvoulio Radiotileorasis

(Case C-52/10) (1)

(Directive 89/552/EEC - Television broadcasting activities - Article 1(d) - ‘Surreptitious advertising’ - Intentional nature - Presentation of cosmetic dental treatment during a television broadcast)

2011/C 226/08

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Eleftheri tileorasi AE ‘ALTER CHANNEL’, Konstantinos Giannikos

Defendants: Ipourgos Tipou kai Meson Mazikis Enimerosis, Ethniko Simvoulio Radiotileorasis

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 1(c) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Article 1(c) of Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) — Television programme consisting in the presentation of cosmetic dental treatment — Concept of ‘surreptitious advertising’

Operative part of the judgment

Article 1(d) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, is to be interpreted as meaning that the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising.

(1) OJ C 100, 17.4.2010.

30.7.2011

Official Journal of the European Union

C 226/6

Judgment of the Court (Third Chamber) of 9 June 2011 (reference for a preliminary ruling from the Tribunale ordinario di Vicenza (Italy)) — Electrosteel Europe SA v Edil Centro SpA

(Case C-87/10) (1)

(Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Regulation (EC) No 44/2001 - Special jurisdiction - Article 5(1)(b), first indent - Court of the place of performance of the contractual obligation on which the application is based - Sale of goods - Place of delivery - Contract containing the clause ‘Delivered Ex Works’)

2011/C 226/09

Language of the case: Italian

Referring court

Tribunale ordinario di Vicenza

Parties to the main proceedings

Applicant: Electrosteel Europe SA

Defendant: Edil Centro SpA

Re:

Reference for a preliminary ruling — Tribunale Ordinario di Vicenza — Interpretation of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special jurisdiction — Meaning of ‘the place where, under the contract, the goods were delivered or should have been delivered’ — Final destination of the goods covered by the contract or the place in which the seller is discharged of his obligation to deliver

Operative part of the judgment

The first indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of distance selling, the place where the goods were or should have been delivered pursuant to the contract must be determined on the basis of the provisions of that contract.

In order to verify whether the place of delivery is determined ‘under the contract’, the national court seised must take account of all the relevant terms and clauses of that contract which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms drawn up by the International Chamber of Commerce in the version published in 2000.

If it is impossible to determine the place of delivery on that basis, without referring to the substantive law applicable to the contract, the place of delivery is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction.

(1) OJ C 100, 17.4.2010.

30.7.2011

Official Journal of the European Union

C 226/6

Judgment of the Court (First Chamber) of 9 June 2011 (reference for a preliminary ruling from the Fővarosi Bíróság (Hungary)) — Bábolna Mezőgazdasági Termelő, Fejlesztő és Kereskedelmi Zrt. v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-115/10) (1)

(Common agricultural policy - Regulation (EC) No 1782/2003 - Complementary direct national aid - Conditions for grant)

2011/C 226/10

Language of the case: Hungarian

Referring court

Fővarosi Bíróság

Parties to the main proceedings

Applicant: Bábolna Mezőgazdasági Termelő, Fejlesztő és Kereskedelmi Zrt.

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Re:

Reference for a preliminary ruling — Fővárosi Bíróság — Interpretation of Article 1(4) of Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 L 355, p. 1), and Articles 1 and 10(a) of Council Regulation (EC) No 1259/1999 of 17 May 1999 establishing common rules for direct support schemes under the common agricultural policy (OJ 1999 L 160, p. 113) — National legislation excluding producers engaged in a liquidation procedure from national complementary aid linked to the single area payment regime — Whether Member States may lay down conditions for eligibility for national complementary aid which do not apply to the grant of the Community aid in question

Operative part of the judgment

Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, as amended by Council Decision 2004/281/EC of 22 March 2004, must be interpreted as meaning that it prohibits national legislation which excludes from the benefit of complementary national aid legal persons carrying out an agricultural activity in the territory of the Member State in question, on the ground that they are the subject of voluntary dissolution proceedings, where a condition relating to the absence of such proceedings has not been the subject of prior authorisation by the European Commission.

(1) OJ C 134, 22.5.2010.

30.7.2011

Official Journal of the European Union

C 226/7

Judgment of the Court (Eighth Chamber) of 9 June 2011 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Campsa Estaciones de Servicio SA v Administración del Estado

(Case C-285/10) (1)

(Sixth VAT Directive - Articles 11A(1) and 27 - Taxable amount - Extension of the rules on application for private use to transactions between connected parties where prices are patently lower than open market prices)

2011/C 226/11

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Campsa Estaciones de Servicio SA

Defendant: Administración del Estado

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 6, 11 and 27 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) — Extension of rules on application of goods and services for private use to transactions between connected parties where the price is patently lower than the open market value

Operative part of the judgment

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, must be interpreted as precluding a Member State from applying to transactions, such as those in the main proceedings, effected between connected parties having agreed a price which is patently lower than the open market price, a rule for determining the taxable amount other than the general rule laid down in Article 11A(1)(a) of that directive, by extending the scope of the rules for determining the taxable amount on the application of goods and services for private use by a taxable person, within the meaning of Articles 5(6) and 6(2) of that directive, when the procedure provided for in Article 27 of that directive to obtain authorisation for such derogation from that general rule has not been followed by that Member State.

(1) OJ C 246, 11.9.2010.

30.7.2011

Official Journal of the European Union

C 226/7

Judgment of the Court (Fourth Chamber) of 16 June 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Zollamt Linz Wels v Laki DOOEL

(Case C-351/10) (1)

(Community Customs Code - Regulation implementing the Customs Code - Articles 555(1)(c) and 558(1) - Vehicle which has entered the customs territory under the temporary importation procedure with total relief from import duties - Vehicle used for internal traffic - Unlawful use - Incurring of a customs debt - National authorities competent to levy customs duties)

2011/C 226/12

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Zollamt Linz Wels

Defendant: Laki DOOEL

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Articles 204(1)(a) and 215 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), Articles 555(1)(c) and 558(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1) and Article 61 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Transport of goods by road in the European Union — Use of a vehicle that is not authorised in the Member State of destination of the goods — Place where the customs debt arises — Competence of the Member State of origin or of the Member State of destination

Operative part of the judgment

Article 555(1) and Article 558(1)(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001, must be interpreted as meaning that the irregularity in respect of the use of a vehicle imported into the European Union under the temporary importation procedure with total relief from import duties which is used for internal traffic must be regarded as occurring at the moment of crossing the border of the Member State in which the vehicle is used in breach of the national provisions in the field of transport, that is to say, without authorisation to unload given by the Member State of unloading, the authorities of that Member State being responsible for levying those duties.

(1) OJ C 274, 9.10.2010.

30.7.2011

Official Journal of the European Union

C 226/8

Judgment of the Court (Seventh Chamber) of 9 June 2011 (reference for a preliminary ruling from the Conseil d’État — Belgium) — Intercommunale Intermosane SCRL, Fédération de l’industrie et du gaz v État belge

(Case C-361/10) (1)

(Internal market - Technical standards and regulations - Procedure for the provision of information in the field of technical standards and regulations and rules on Information Society services - Minimum safety requirements for certain old electrical installations at places of work)

2011/C 226/13

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Intercommunale Intermosane SCRL, Fédération de l’industrie et du gaz

Defendant: État belge

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 1(11) and the first subparagraph of Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37) — Procedure for the provision of information and rules on information society services — Obligation to notify draft technical regulations — Minimum safety requirements for certain old electrical installations at places of work

Operative part of the judgment

Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that national provisions such as those at issue in the main proceedings do not amount to technical regulations, within the meaning of that provision, the drafts of which must be the subject of the communication provided for in the first subparagraph of Article 8(1) of that directive.

(1) OJ C 274, 9.10.2010.

30.7.2011

Official Journal of the European Union

C 226/8

Judgment of the Court (Eighth Chamber) of 9 June 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-458/10) (1)

(Failure of a Member State to fulfil obligations - Directive 98/83/EC - Water intended for human consumption - Incomplete and incorrect transposition)

2011/C 226/14

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and O. Beynet, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Incomplete and incorrect transposition of Article 9(3)(b), (c) and (e) of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ L 330, p. 32) — Distribution of drinking water not complying with the required parametric values — Derogations scheme

Operative part of the judgment

The Court:

1.	Declares that, by failing to transpose completely and correctly Article 9(3)(b), (c) and (e) of Council Directive of 3 November 1998 on the quality of water intended for human consumption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

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

(1) OJ C 346, 18.12.2010.

30.7.2011

Official Journal of the European Union

C 226/9

Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 11 April 2011 — Fra.bo S.p.A. v Deutsche Vereinigung des Gas- und Wasserfaches e.V. (DVGW) — Technisch-Wissenschaftlicher Verein

(Case C-171/11)

2011/C 226/15

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Fra.bo S.p.A.

Defendant: Deutsche Vereinigung des Gas- und Wasserfaches e.V. (DVGW) — Technisch-Wissenschaftlicher Verein

Intervener: DVGW-Cert GmbH

Questions referred

Is Article 28 EC (now Article 34 TFEU), if appropriate in conjunction with Article [86(2)] EC (Article [106(2)] TFEU), to be interpreted as meaning that private-law establishments which have been set up for the purpose of drawing up technical standards in a particular field and certifying products on the basis of those technical standards are bound by the aforementioned provisions when drawing up technical standards and in the certification process if the national legislature expressly regards the products in respect of which certificates have been issued as lawful, thus making it at least considerably more difficult in practice to distribute products in respect of which certificates have not been issued?

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

Is Article 81 EC (Article 101 TFEU) to be interpreted as meaning that the activity pursued by a private-law establishment in the field of drawing up technical standards and certifying products on the basis of those technical standards, as defined in paragraph 1, is to be regarded as ‘economic’ if the establishment is controlled by undertakings?

If the first part of this question is answered in the affirmative:

Is Article 81 to be interpreted as meaning that the drawing-up of technical standards and the certification of products on the basis of those technical standards by an association of undertakings is capable of impeding trade between the Member States if a product lawfully manufactured and distributed in another Member State cannot be distributed in the importing Member State, or can be distributed there only with considerable difficulty, because it does not meet the requirements of the technical standard and, in the light of the predominance of the technical standard on the market and of a legal provision adopted by the national legislature to the effect that a certificate from the association of undertakings must indicate compliance with the requirements laid down by law, distribution without such a certificate is virtually impossible, and if the technical standard would not be applicable if it had been adopted directly by the national legislature because it infringes the principles of the free movement of goods?

30.7.2011

Official Journal of the European Union

C 226/9

Reference for a preliminary ruling from the Arbeitsgericht Ludwigshafen am Rhein (Germany), lodged on 11 April 2011 — Georges Erny v Daimler AG — Werk Wörth

(Case C-172/11)

2011/C 226/16

Language of the case: German

Referring court

Arbeitsgericht Ludwigshafen am Rhein

Parties to the main proceedings

Applicant: Georges Erny

Defendant: Daimler AG — Werk Wörth

Questions referred

Does a provision concerning part-time working for older employees, contained in an individual contract, which stipulates that the agreed top-up amount is to be calculated in accordance with the German Order on Minimum Net Pay in the case also of frontier workers from France, such as Paragraph 5(1) of the contract of part-time working for older employees concluded between the parties, infringe Article 45 TFEU, as specifically implemented by Article 7(4) of Council Regulation (EEC) No 1612/68 (1) of 15 October 1968?

If the Court of Justice answers Question 1 in the affirmative:

In the light of the provisions of Article 45 TFEU, as specifically implemented by Article 7(4) of Regulation (EEC) No 1612/68, are provisions of this kind in collective agreements, such as Point 8.3 of the general works council agreement of 24 July 2000 and Paragraph 7 of the collective agreement of 23 November 2004, to be interpreted as meaning that, in the case of frontier workers, the top-up amount is not to be calculated in accordance with the table set out in the Order on Minimum Net Pay?

(1) Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English special edition 1968(II), p. 475).

30.7.2011

Official Journal of the European Union

C 226/10

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 13 April 2011 — Finanzamt Steglitz v Ines Zimmermann

(Case C-174/11)

2011/C 226/17

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Steglitz

Respondent: Ines Zimmermann

Questions referred

Does Article 13(A)(1)(g) and/or (2)(a) 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 (1) permit the national legislature to make the exemption of out-patient care services for those who are sick or in need of care dependent on the fact that, in the case of such organisations, ‘the costs of the care have been borne in at least two thirds of cases wholly or mainly by the statutory social security or social welfare authorities in the previous calendar year’ (Paragraph 4(16)(e) of the Umsatzsteuergesetz 1993)?

Is it relevant to the answer to this question, having regard to the principle of the neutrality of VAT, that the national legislature treats the same services as exempt under different conditions where they are carried out by officially recognised voluntary welfare associations, and corporations, associations of persons and funds serving purposes of voluntary welfare which are affiliated as members of a welfare association (Paragraph 4(18) of the Umsatzsteuergesetz 1993)?

(1) OJ 1977 L 145, p. 1.

30.7.2011

Official Journal of the European Union

C 226/10

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 April 2011 — HIT hoteli, igralnice, turizem d.d. Nova Gorica and HIT LARIX, prirejanje posebnih iger na sreco in turizem d.d. v Bundesminister für Finanzen

(Case C-176/11)

2011/C 226/18

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: HIT hoteli, igralnice, turizem d.d. Nova Gorica and HIT LARIX, prirejanje posebnih iger na sreco in turizem d.d.

Defendant: Bundesminister für Finanzen

Question referred

Is a rule of national law which permits the domestic advertising of casinos located outside the national territory only where the legal protection for gamblers in those foreign locations corresponds to the protection under domestic law compatible with the freedom to provide services?

30.7.2011

Official Journal of the European Union

C 226/10

Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1, Oviedo (Spain) lodged on 27 April 2011 — Susana Natividad Martínez Álvarez v Consejería de la Presidencia, Justicia e Igualdad del Principado de Asturias

(Case C-194/11)

2011/C 226/19

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 1, Oviedo

Parties to the main proceedings

Applicant: Susana Natividad Martínez Álvarez

Defendant: Consejería de la Presidencia, Justicia e Igualdad del Principado de Asturias

Question referred

Is Article 7(1) of Directive 2003/88/EC (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in relation to Article 31(2) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a domestic provision (such as Article 502(4) of the Ley Orgánica del Poder Judicial 6/1985 of 1 July) which provides that when temporary incapacity for work arises during leave which has already started, the leave can be deemed interrupted only if such incapacity involves admission to hospital, thus excluding other situations of incapacity, in which there would be no right to take the leave at a later date?

(1) OJ 2003 L 299, p. 9.

30.7.2011

Official Journal of the European Union

C 226/11

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 2 May 2011 — Georg Köck v Schutzverband gegen unlauteren Wettbewerb

(Case C-206/11)

2011/C 226/20

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Georg Köck

Respondent: Schutzverband gegen unlauteren Wettbewerb

Question referred

Do Articles 3(1) and 5(5) of Directive 2005/29/EC (1) of the European Parliament and of the Council 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 (Unfair Commercial Practices Directive) or other provisions of that directive preclude a national provision under which the announcement of a clearance sale without the authorisation of the competent administrative authority is not permitted and for that reason must be prohibited in court proceedings, without it being necessary in those proceedings for the court to consider whether such a commercial practice is misleading, aggressive or otherwise unfair?

(1) Directive 2005/29/EC of the European Parliament and of the Council 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 (‘Unfair Commercial Practices Directive’) (Text with EEA relevance) (OJ 2005 L 149, p. 22).

30.7.2011

Official Journal of the European Union

C 226/11

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 May 2011 — Jyske Bank Gibraltar Limited v Administración del Estado

(Case C-212/11)

2011/C 226/21

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Jyske Bank Gibraltar Limited

Defendant: Administración del Estado

Question referred

Does Article 22(2) of Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing permit a Member State to make it a mandatory requirement that the information which must be provided by credit institutions operating in its territory without a permanent establishment be forwarded directly to its own authorities responsible for the prevention of money laundering, or, on the other hand, must the request for information be directed to the Financial Intelligence Unit of the Member State in whose territory the addressee institution is situated?

(1) OJ 2005 L 309, p. 15.

30.7.2011

Official Journal of the European Union

C 226/11

Action brought on 10 May 2011 — European Commission v French Republic

(Case C-216/11)

2011/C 226/22

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls and O. Beynet, Agents)

Defendant: French Republic

Form of order sought

—

Declare that, by using a purely quantitative criterion to assess the commercial character of the holding by individuals of manufactured tobacco from another Member State, by applying that criterion by individual vehicle (and not by person), and globally in respect of all tobacco products by purely and simply precluding the importation by individuals of tobacco products from another Member State where the quantity exceeds 2 kilograms by individual vehicle, the French Republic has failed to fulfil its obligations under Council Directive 92/12/EEC of 25 February 1992, (1) and in particular Articles 8 and 9 thereof, and under Article 34 of the Treaty on the Functioning of the European Union;

—	Order the French Republic to pay the costs.

Pleas in law and main arguments

First, the Commission criticises the defendant for using a purely quantitative criterion for determining the existence of an infringement, whereas the levels referred to in Article 9(2) of the abovementioned Directive 92/12 (and in Article 32(3) of Directive 2008/118 (2)) are merely guide levels and may not, in any circumstances, be the only factor to consider when determining whether the tobacco is actually held for commercial purposes or by the individual transporting it for their own use.

In addition, the Commission states that the thresholds of 1 and 2 kg laid down by Articles 575 G and H of the General Tax Code apply to the tobacco products held (cigarettes, smoking tobacco, cigars, etc) as a whole, whereas the minimum levels provided for under the directives are cumulative guide levels, provided for in relation to each type of tobacco product.

The applicant also states that French legislation establishes limits per vehicle, and not per person, which leads purely and simply to an accumulation of the quantities transported in the same vehicle, independently of the number of persons present in the vehicle.

Second, the applicant relies on the infringement of Article 34 TFEU to the extent that the national provisions preclude the importation of certain quantities of tobacco products into France from another Member State, even where they are held for the individual’s own use. They therefore constitute ‘measures of equivalent effect to quantitative restrictions on imports’ which have the objective or effect of treating goods from other Member States less favourably.

The Commission rejects, third, the justifications relied on by the defendant relating, inter alia, to the lack of fiscal harmonisation at European level and to the necessity of ensuring the objective of protection of public health by reinforcing the fight against smoking.

(1) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

(2) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

30.7.2011

Official Journal of the European Union

C 226/12

Reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands) lodged on 16 May 2011 — DHL Danzas Air & Ocean (Netherlands) BV v Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat

(Case C-227/11)

2011/C 226/23

Language of the case: Dutch

Referring court

Rechtbank Haarlem

Parties to the main proceedings

Applicant: DHL Danzas Air & Ocean (Netherlands) BV

Defendant: Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat

Questions referred

1.	Must the active network analysers [of the type J6801B] be classified under heading 9030 40 or under heading 9031 80?

2.	Is Commission Regulation (EC) No 129/2005 (1) of 20 January 2005 … invalid because in that regulation the Commission incorrectly classified the network analysers mentioned in points 3 and 4, namely, under CN code 9031 80 39, instead of under code 9030 40?

(1) Concerning the classification of certain goods in the Combined Nomenclature and amending Regulation (EC) No 955/98 (OJ 2005 L 25, p. 37).

30.7.2011

Official Journal of the European Union

C 226/12

Action brought on 19 May 2011 — French Republic v European Parliament

(Case C-237/11)

2011/C 226/24

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A. Adam, Agents)

Defendant: European Parliament

Form of order sought

—	Annul the vote of the European Parliament of 9 March 2011 concerning the calendar of session periods of the Parliament for 2012;

—	Order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant relies on a single plea in law in support of its action alleging, first, infringement of Protocol No 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, annexed to the TFEU, and of Protocol No 3 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, annexed to the EAEC Treaty and, second, failure to comply with the judgment of the Court in Case C-345/95 France v Parliament [1997] ECR I-5235.

According to the French Government, by laying down that two of the twelve periods of monthly plenary sessions which must take place in Strasbourg every year will be shortened from 4 to 2 days and will take place, in 2012, during the same week of October, the European Parliament has sought to circumvent the rule according to which the twelve periods of monthly plenary sessions, including the budget session, must take place in Strasbourg. The contested vote amounts, in practice, to the abolition of one of the twelve periods of monthly plenary sessions which must take place in Strasbourg every year. Its only objective is thus to reduce the length of time members of the European Parliament spend at the seat of the European Parliament, which is not justified by any requirement relating to the internal organisation of the Parliament’s work.

30.7.2011

Official Journal of the European Union

C 226/13

Action brought on 19 May 2011 — French Republic v European Parliament

(Case C-238/11)

2011/C 226/25

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A. Adam)

Defendant: European Parliament

Form of order sought

—	annul the deliberations of the European Parliament of 9 March 2011 relating to the calendar of periods of sessions of the Parliament for the year 2013;

—	order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant puts forward a single plea in support of its action, alleging, first, infringement of the Protocol No 6 on the location of the seats of the institutions and of certain bodies, agencies and departments of the European Union, annexed to the TEU and the TFEU, and of Protocol No 3 on the location of the seats of the institutions and of certain bodies, agencies and departments of the European Union, annexed to the ECSC Treaty, and, second, non-compliance with the judgment of the Court of 1 October 1997 in Case C-345/95 France v Parliament [1997] ECR I-5235.

According to the French Government, in providing that two of the 12 periods of monthly plenary sessions which must be held each year in Strasbourg are to be reduced from four to two days and will take place, in 2013, during the same week of October, the European Parliament sought to circumvent the rule that the 12 periods of monthly plenary sessions, including the budget session, must be held in Strasbourg. The contested deliberation leads, in reality, to one of the 12 periods of monthly plenary sessions which must be held in Strasbourg being eliminated. Its sole objective is thus to diminish the length of time the MEPs are present at the seat of the European Parliament, without its being justified by internal organisational requirements relating to the work of the Parliament.

30.7.2011

Official Journal of the European Union

C 226/13

Appeal brought on 19 May 2011 by Siemens AG against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Case T-110/07 Siemens AG v European Commission

(Case C-239/11 P)

2011/C 226/26

Language of the case: German

Parties

Appellant: Siemens AG (represented by: Drs I. Brinker, C. Steinle, M. Hörster, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

1.	Set aside the judgment of the General Court (Second Chamber) of 3 March 2011 (Case T-110/07) in so far as the appellant is adversely affected by that judgment;

2.	Partially annul the Commission Decision of 24 January 2007 (COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns the appellant, In the alternative, cancel or reduce the fine imposed on the appellant in that decision;

3.	In the alternative to the second head of claim, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law;

4.	In any event, order the Commission to pay the costs incurred by the appellant in respect of the proceedings before the General Court and the Court of Justice

Pleas in law and main arguments

The present appeal is directed against the judgment of the General Court by which that court dismissed the action brought by the appellant against Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear).

The appellant relies on seven grounds of appeal in total:

First of all, the General Court infringed the fundamental right to a fair hearing (Article 6 ECHR in conjunction with Article 6(3) TEU and the second paragraph of Article 47 of the Charter of Fundamental Rights) and the rights of the defence (Article 48(2) of the Charter of Fundamental Rights) in that it based its finding that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 conclusively on the testimony of a witness, without having given the appellant the possibility of questioning that witness.

Secondly, the General Court in concluding that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 distorted evidence and failed to have regard to common experience. The General Court therefore wrongly assumed that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 and determined the duration of the infringement incorrectly.

Thirdly, the General Court wrongly held that the rules on limitation of actions did not apply to the period before 22 April 1999 and incorrectly assumed that there was a single and continuous infringement.

Fourthly, the General Court infringed the principle of equal treatment in that it approved of the Commission’s use of different reference years in establishing the relative weight of the undertakings which participated in the infringement and of the resulting erroneous classification of the appellant according to Section 1A of the Guidelines on fines.

Fifthly, the General Court did not reduce the increase in the basic amount of the fine, which is supposed to ensure that there is sufficient deterrent effect, in accordance with the difference in size between the appellant and ABB and thus infringed the principle of equal treatment.

Sixthly, the General Court infringed Article 6 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union in that it did not make any use of its unlimited right to review the Commission’s decisions on fines.

Seventhly, the General Court disregarded the scope of the obligation to state reasons arising out of Article 296 TFEU (ex Article 253 EC) in that it made insufficient demands in respect of the requirements arising from the obligation to state reasons applicable to the calculation of the deterrent multiplier.

30.7.2011

Official Journal of the European Union

C 226/14

Reference for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Lithuania) lodged on 20 May 2011 — Lietuvos geležinkeliai AB v Vilniaus teritorinė muitinė, Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

(Case C-250/11)

2011/C 226/27

Language of the case: Lithuanian

Referring court

Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės

Parties to the main proceedings

Applicant: Lietuvos geležinkeliai AB

Defendants: Vilniaus teritorinė muitinė, Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

Questions referred

1.	Should the exemption from import duties laid down in Article 112(1)(a) of Regulation No 918/83 (1) and Article 107(1)(a) of Regulation No 1186/2009 (2) be understood as applying to motor vehicles [motorinės transporto priemonės] that are locomotives?

2.	Should the exemption from value added tax laid down in Article 82(1)(a) of Directive 83/181/EEC (3) and Article 84(1)(a) of Directive 2009/132/EC (4) be understood as applying to motor vehicles [motorinės transporto priemonės] that are locomotives?

If the answer to the second question is in the affirmative, do legal rules such as those laid down in Article 82(1)(a) of Directive 83/181/EEC and Article 84(1)(a) of Directive 2009/132/EC have to be interpreted as prohibiting a Member State from restricting the cases of exemption from import VAT for fuel by providing that such an exemption is applicable exclusively to fuel that is admitted into the territory of the European Union in the standard tanks of automotive vehicles and is necessary for the operation of those vehicles?

(1) Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (OJ 1983 L 105, p. 1).

(2) Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (OJ 2009 L 324, p. 23).

(3) Council Directive 83/181/EEC of 28 March 1983 determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods (OJ 1983 L 105, p. 38).

(4) Council Directive 2009/132/EC of 19 October 2009 determining the scope of Article 143(b) and (c) of Directive 2006/112/EC as regards exemption from value added tax on the final importation of certain goods (OJ 2009 L 292, p. 5).

30.7.2011

Official Journal of the European Union

C 226/15

Reference for a preliminary ruling from the Amtsgericht Geldern (Germany) lodged on 24 May 2011 — Nadine Büsch and Björn Siever v Ryanair Ltd

(Case C-255/11)

2011/C 226/28

Language of the case: German

Referring court

Amtsgericht Geldern

Parties to the main proceedings

Applicants: Nadine Büsch and Björn Siever

Defendant: Ryanair Ltd

Questions referred

Does the right to compensation laid down in Article 7 of the Air Passenger Rights Regulation (1) constitute a claim for damages which is subject to the limits of liability set out in the Montreal Convention, by virtue of the first sentence of Article 29 (2) thereof, where it is to be granted because of a long delay of a flight?

Is the right to compensation under Article 7 of the Air Passenger Rights Regulation non-compensatory within the meaning of the second sentence of Article 29 of the Montreal Convention in so far as it exceeds the damage incurred by the air passenger as a result of the long delay? Does this preclude a right to compensation entirely or does such a right arise in the event of delays only in the amount of the damage actually incurred?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

(2) Council Decision of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38).

30.7.2011

Official Journal of the European Union

C 226/15

Reference for a preliminary ruling from Supreme Court (Ireland) made on 26 May 2011 — Peter Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government v An Bord Pleanala

(Case C-258/11)

2011/C 226/29

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicants: Peter Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government

Defendant: An Bord Pleanala

Questions referred

1.	What are the criteria in law to be applied by a competent authority to an assessment of the likelihood of a plan or project the subject of Article 6(3) of the Habitats Directive (1), having ‘an adverse effect on the integrity of the site’?

2.	Does the application of the precautionary principle have as its consequence that such a plan or project cannot be authorised if it would result in the permanent non-renewable loss of the whole or any part of the habitat in question?

3.	What is the relationship, if any, between Article 6(4) and the making of the decision under Article 6(3) that the plan or project will not adversely affect the integrity of the site?

(1) Council Directive 92/43/EEC of 21 May 1992. OJ L 206, p. 7

30.7.2011

Official Journal of the European Union

C 226/16

Reference for a preliminary ruling from Supreme Court of the United Kingdom (United Kingdom) made on 25 May 2011 — Regina on the application of David Edwards, Lilian Pallikaropoulos v Environment Agency, First Secretary of State, Secretary of State for Environment, Food and Rural Affairs

(Case C-260/11)

2011/C 226/30

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicants: David Edwards, Lilian Pallikaropoulos

Defendants: Environment Agency, First Secretary of State, Secretary of State for Environment, Food and Rural Affairs

Questions referred

How should a national court approach the question of awards of costs against a member of the public who is an unsuccessful claimant in an environmental claim, having regard to the requirements of Article 9(4) of the Aarhus Convention, as implemented by article 10a 85/337/EEC (1) and article 15a 96/61/EEC (2) (‘the Directives’)?

Should the question whether the cost of the litigation is or is not ‘prohibitively expensive’ within the meaning of Article 9(4) of the Aarhus Convention as implemented by the Directives be decided on an objective basis (by reference, for example, to the ability of an ‘ordinary’ member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?

3.	Or is this entirely a matter for the national law of the Member State subject only to achieving the result laid down by the Directives, namely that the proceedings in question are not ‘prohibitively expensive’?

4.	In considering whether proceedings are, or are not, ‘prohibitively expensive’, is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?

5.	Is a different approach to these issues permissible at the stage of (i) an appeal or (ii) a second appeal from that which requires to be taken at first instance?

(1) Council Directive 85/337/EEC of 27 June 1985. OJ L 175, p. 40

(2) Council Directive 96/61/EC of 24 September 1996. OJ L 257, p. 26

30.7.2011

Official Journal of the European Union

C 226/16

Reference for a preliminary ruling from the Latvijas Republikas Augstākās tiesas Senāts (Republic of Latvia) lodged on 26 May 2011 — Ainārs Rēdlihs v Valsts ieņēmumu dienests

(Case C-263/11)

2011/C 226/31

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: Ainārs Rēdlihs

Defendant: Valsts ieņēmumu dienests

Questions referred

Is a natural person who has acquired goods (a forest) for his own needs and who makes a supply of goods to alleviate the consequences generated by force majeure (for example, a storm) a taxable person for the purposes of VAT, within the meaning of Article 9(1) of Directive 2006/112/EC (1) and Article 4(1) and (2) of the Sixth Council Directive 77/388/EEC, (2) who is required to pay VAT? In other words, does such a supply of goods constitute an economic activity within the meaning of those rules of European Union law?

Does a regulation, under which a fine can be imposed on a person who has not registered on the register of taxable persons for the purposes of VAT, in an amount equivalent to the tax that would normally be due for the value of the goods supplied, even though that person would not have to pay the tax if he had registered on the register, comply with the principle of proportionality?

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

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

30.7.2011

Official Journal of the European Union

C 226/17

Appeal brought on 30 May 2011 by the European Commission against the judgment delivered by the General Court (Third Chamber) on 22 March 2011 in Case T-369/07 Republic of Latvia v European Commission

(Case C-267/11 P)

2011/C 226/32

Language of the case: Latvian

Parties

Appellant: European Commission (represented by: E. White and I. Rubene)

Other parties to the proceedings: Republic of Latvia, Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

—	Set aside the judgment under appeal.

—	Order the Republic of Latvia to pay the costs.

Grounds of appeal and main arguments

The single ground of appeal is based on a failure to respect the three-month time-limit laid down in Article 9(3) of Directive 2003/87/EC. (1)

The Commission considers that, in its analysis, the General Court treated the first and second sentences of Article 9(3) as one and, consequently, that its interpretation is not in line with the objectives laid down in that paragraph.

That interpretation of Article 9(3) of the directive is contrary to the interpretation which the General Court adopted in another case, in which it rightly considered that the second sentence of Article 9(3) constituted a separate legal basis.

In its interpretation of Article 9(3) of the directive, the Commission relies on the literal wording of the provision, which is fully in line with the objective pursued by that provision. Consequently, if the Commission rejects the national allocation plan notified by a Member State, the latter will be required to amend that plan taking account of the Commission's objections and will not be able to execute the plan until the Commission has approved the amendments, for which there is no time-limit.

The Commission notes that the contested decision was a decision on the amendments to the national allocation plan and not on the notified national allocation plan itself.

However, given that the General Court did not consider that the second sentence of Article 9(3) of the directive established a different procedure, it found itself required to consider the notified amendments as notification of a new national allocation plan and, as a result, required to apply the three-month time-limit incorrectly.

(1) OJ 2003 L 275, p. 32.

30.7.2011

Official Journal of the European Union

C 226/17

Action brought on 31 May 2011 — European Commission v Kingdom of Sweden

(Case C-270/11)

2011/C 226/33

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: C. Tufvesson and F. Coudert, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

—	Declare that Sweden failed to fulfil its obligations under Article 260(1) TFEU in that it has not adopted the measures necessary to comply with the judgment of the Court of Justice in Case C-185/09;

—

Order Sweden to pay the Commission, to the account ‘European Union own resources’, a daily penalty of EUR 40 947,20 for each day that the necessary measures are not taken to comply with the judgment of the Court in Case C-185/09, from the day on which the judgment in the present case is delivered until the day on which the judgment in Case C-185/09 is complied with inclusive;

—

Order Sweden to pay the Commission, to the same account, a fixed daily amount of EUR 9 597 for each day that the necessary measures are not taken to comply with the judgment of the Court in Case C-185/09, from the day on which the judgment in Case C-185/09 was delivered until the day on which judgment is delivered in the present case or until the day on which the measures necessary to comply with that judgment in Case C-185/09 are taken, if that is earlier; and

—	Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In the judgment of the Court of 4 February 2010 (Case C-185/09 Commission v Kingdom of Sweden), the Court held:

‘By failing, within the period prescribed, to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, the Kingdom of Sweden has failed to fulfil its obligations under that directive.’

The Kingdom of Sweden has still not adopted any measures to comply with the judgment of the Court in Case C-185/09. The Commission has therefore brought proceedings in accordance with Article 260(2) of the Treaty on the Functioning of the European Union and claims that the Kingdom of Sweden should pay financial penalties.

30.7.2011

Official Journal of the European Union

C 226/18

Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 6 June 2011 — MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General

(Case C-277/11)

2011/C 226/34

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: MM

Defendants: Minister for Justice, Equality and Law Reform, Ireland, Attorney General

Question referred

In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of Council Directive 2004/83/EC (1) require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?

(1) OJ L 304, p. 12

30.7.2011

Official Journal of the European Union

C 226/18

Action brought on 1 June 2011 — European Commission v Ireland

(Case C-279/11)

2011/C 226/35

Language of the case: English

Parties

Applicant: European Commission (represented by: P. Oliver, Agent)

Defendant: Ireland

The applicant claims that the Court should:

—	declare that, by failing to take the necessary measures to comply with the judgment of this Court in Case C-66/06 Commission v Ireland, Ireland has failed to fulfil its obligations under Article 260 TFEU;

—	order Ireland to pay to the Commission a lump sum of EUR 4 174,8 multiplied by the number of days between the ruling in Case C-66/06 and either compliance by Ireland with that ruling or the judgment in the present proceedings, whichever is the sooner;

—	order Ireland to pay to the Commission a penalty payment of EUR 33 080,32 from the date of the judgment in the present proceedings to the date of compliance by Ireland with the ruling in Case C-66/06; and

—	order Ireland to pay the costs.

Pleas in law and main arguments

Some two and a half years after the Court’s judgment of 20 November 2008, in case C-66/06, declaring that Ireland had not adopted measures fully transposing articles 2(1) and 4(2) to (4) of Council directive 85/337/EEC (1), Ireland has still failed to take the measures necessary to comply with that judgment. Therefore, the Commission proposes that Ireland should be ordered to pay a fine and a periodic penalty payment to reflect the serious nature of that infringement and its impact on the pursuit of the objectives pursued by the Community legislature.

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment

OJ L 175, p. 40

30.7.2011

Official Journal of the European Union

C 226/19

Action brought on 20 June 2011 — European Commission v Italian Republic

(Case C-312/11)

2011/C 226/36

Language of the case: Italian

Parties

Applicant: European Commission (represented by: J. Enegren and C. Cattabriga, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

—

declare that, by not placing all employers under an obligation to make reasonable accommodation for all disabled persons, the Italian Republic has failed to fulfil its obligation to implement, fully and correctly, Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

By not placing all employers under an obligation to make reasonable accommodation for all disabled persons, the Italian Republic has failed to fulfil its obligation to implement, fully and correctly, Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

Article 5 of Directive 2000/78 places Member States under an obligation of general application to make reasonable accommodation to enable persons with a disability to have access to, to participate in, or to advance in employment, or to undergo training. Those measures must apply — consistently with the principle of proportionality and depending upon the specific circumstances — to all disabled persons and must concern all aspects of the employment relationship and all employers.

There is no trace in the Italian legislation of measures implementing that general obligation. Admittedly, there are the provisions of Law No 68/1999, which, in a number of areas, offer a level of assurance and facilitation which is higher even than that required under Article 5 of Directive 2000/78. However, those provisions do not concern all disabled persons; they are not enforceable against all employers; they do not concern all the various aspects of the employment relationship; or they merely indicate an objective which requires subsequent implementing measures if it is to be achieved.

30.7.2011

Official Journal of the European Union

C 226/20

Judgment of the General Court of 16 June 2011 — Air liquide v Commission

(Case T-185/06) (1)

2011/C 226/37

Language of the case: French

Parties

Applicant: Air liquide, société anonyme pour l’étude et l’exploitation des procédés Georges Claude (Paris, France) (represented by: R. Saint-Esteben, M. Pittie and P. Honoré, lawyers)

Defendant: European Commission (represented initially by F. Arbault and O. Beynet, and subsequently by V. Bottka, P. Van Nuffel and B. Gencarelli, Agents)

Re:

Application for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), in so far as it concerns the applicant.

Operative part of the judgment

The Court:

Annuls Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), in so far as it concerns L’Air liquide, SA pour l’étude et l’exploitation des procédés Georges Claude;

2.	Orders the European Commission to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/20

Judgment of the General Court of 16 June 2011 — Solvay v Commission

(Case T-186/06) (1)

(Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Duration of the infringement - Concepts of ‘agreement’ and ‘concerted practice’ - Access to the file - Fines - Leniency Notice - Equal treatment - Legitimate expectations - Obligation to state the reasons on which the decision is based)

2011/C 226/38

Language of the case: English

Parties

Applicant: Solvay SA (Brussels, Belgium) (represented initially by O.W. Brouwer, D. Mes, lawyers, M. O’Regan and A. Villette, Solicitors, and subsequently by O.W. Brouwer, A. Stoffer, lawyer, M. O’Regan and A. Villette)

Defendant: European Commission (represented initially by F. Arbault, and subsequently by V. Di Bucci and V. Bottka, Agents, and by M. Gray, Barrister)

Re:

Action for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) and for annulment or reduction of the fine imposed on the applicant

Operative part of the judgment

The Court:

Annuls Article 1(m) of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case C.38.620 — Hydrogen peroxide and perborate) in so far as the European Commission found therein that Solvay SA had participated in the infringement during the period prior to May 1995;

2.	Sets the amount of the fine imposed on Solvay in Article 2(h) of Decision C(2006) 1766 final at EUR 139,5 million;

3.	Dismisses the action as to the remainder;

4.	Orders Solvay to bear 80 % of its own costs and to pay 80 % of the Commission’s;

5.	Orders the Commission to bear 20 % of its own costs and to pay 20 % of Solvay’s.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/21

Judgment of the General Court of 16 June 2011 — FMC Foret v Commission

(Case T-191/06) (1)

2011/C 226/39

Language of the case: English

Parties

Applicant: FMC Foret, SA (Barcelona, Spain) (represented by: M. Seimetz, lawyer, and C. Stanbrook QC)

Defendant: European Commission (represented initially by F. Arbault, and subsequently by V. Di Bucci and V. Bottka, Agents, and by M. Gray, Barrister)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders FMC Foret SA to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/21

Judgment of the General Court of 16 June 2011 — Caffaro v Commission

(Case T-192/06) (1)

(Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Fines - Limitation period - Differential treatment - Duration of the infringement - Attenuating circumstances)

2011/C 226/40

Language of the case: Italian

Parties

Applicant: Caffaro Srl (Milan, Italy) (represented by: A. Santa Maria and C. Biscaretti di Ruffia, lawyers)

Defendant: European Commission (represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, Agents)

Re:

Application for annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), in so far as in that decision the Commission imposes a fine jointly and severally on the applicant and SNIA SpA and, in the alternative, a reduction of that fine.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Caffaro Srl to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/21

Judgment of the General Court of 16 June 2011 — SNIA v Commission

(Case T-194/06) (1)

(Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Imputability of the infringement - Acquisition of a company liable for the infringement - Rights of the defence - Consistency between the statement of objections and the contested decision - Obligation to state the reasons on which the decision is based)

2011/C 226/41

Language of the case: Italian

Parties

Applicant: SNIA SpA (Milan, Italy) (represented by: A. Santa Maria, B. Biscaretti di Ruffia and E. Gambaro, lawyers)

Defendant: European Commission (represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders SNIA SpA to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/22

Judgment of the General Court of 16 June 2011 — Solvay Solexis v Commission

(Case T-195/06) (1)

(Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Duration of infringement - Concept of ‘agreement’ and ‘concerted practice’ - Access to the file - Fines - Equal treatment - Leniency Notice - Obligation to state the reasons on which the decision is based)

2011/C 226/42

Language of the case: Italian

Parties

Applicant: Solvay Solexis SpA (Milan, Italy) (represented by: T. Salonico and G.L. Zampa, lawyers)

Defendant: European Commission (represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, acting as Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Solvay Solexis SpA to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/22

Judgment of the General Court of 16 June 2011 — Edison v Commission

(Case T-196/06) (1)

2011/C 226/43

Language of the case: Italian

Parties

Applicant: Edison S.p.A. (Milan, Italy) (represented by: M. Siragusa, R. Casati, M. Beretta, P. Merlino and E. Bruti Liberati, lawyers)

Defendant: European Commission (represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, Agents)

Re:

Operative part of the judgment

The Court:

1.	Annuls Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), in so far as it concerns Edison SpA.;

2.	Orders the European Commission to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/22

Judgment of the General Court of 16 June 2011 — FMC v Commission

(Case T-197/06) (1)

2011/C 226/44

Language of the case: English

Parties

Applicant: FMC Corp. (Philadelphia, Pennsylvania, United States) (represented by: C. Stanbrook QC and Y. Virvilis, lawyer)

Defendant: European Commission (represented initially by F. Arbault, and subsequently by V. Di Bucci, V. Bottka and X. Lewis, Agents, and by M. Gray, Barrister)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders FMC Corp. to pay the costs.

(1) OJ C 212, 2.9.2006.

30.7.2011

Official Journal of the European Union

C 226/23

Judgment of the General Court of 16 June 2011 — Bavaria v European Commission

(Case T-235/07) (1)

(Competition - Agreements, decisions and concerted practices - Netherlands beer market - Decision finding an infringement of Article 81 EC - Proof of the infringement - Access to the file - Fines - Principle of equal treatment - Reasonable period)

2011/C 226/45

Language of the case: Dutch

Parties

Applicant: Bavaria NV (Lieshout, Netherlands) (represented initially by O. Brouwer, D. Mes, A. Stoffer, and subsequently by O. Brouwer, A. Steffens and P. Schepens, lawyers)

Defendant: European Commission (represented initially by A. Bouquet, S. Noë and A Nijenhuis, and subsequently by A. Bouquet and S. Noë, acting as Agents, and M. Slotboom, lawyer)

Re:

Application for partial annulment of Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766 — Netherlands beer market) and, in the alternative, for reduction of the fine imposed on the applicant

Operative part of the judgment

The Court:

Annuls Article 1 of Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766) in so far as the European Commission found in it that Bavaria NV had participated in an infringement consisting in the occasional coordination of commercial conditions, other than prices, offered to individual customers in the on-trade segment in the Netherlands;

2.	Sets the amount of the fine imposed on Bavaria in Article 3(c) of Decision C(2007) 1697 at EUR 20 712 375;

3.	Dismisses the remainder of the action;

4.	Orders Bavaria to pay two-thirds of its own costs and of those of the European Commission;

5.	Orders the Commission to pay one third of its own costs and of those of the European Commission.

(1) OJ C 211, 8.9.2007.

30.7.2011

Official Journal of the European Union

C 226/23

Judgment of the General Court of 16 June 2011 — Heineken Nederland and Heineken v Commission

(Case T-240/07) (1)

2011/C 226/46

Language of the case: Dutch

Parties

Applicants: Heineken Nederland BV (Zoeterwoude, Netherlands) and Heineken NV (Amsterdam, Netherlands) (represented by: T. Ottervanger and M. de Jong, lawyers)

Defendant: European Commission (represented initially by A. Bouquet, S. Noë and A Nijenhuis, and subsequently by A. Bouquet and S. Noë, acting as Agents, and M. Slotboom, lawyer)

Re:

Operative part of the judgment

The Court:

Annuls Article 1 of Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766) in so far as the European Commission found in it that Heineken NV and Heineken Nederland BV had participated in an infringement consisting in the occasional coordination of commercial conditions, other than prices, offered to individual customers in the on-trade segment in the Netherlands;

2.	Sets the amount of the fine imposed on Heineken and Heineken Nederland in Article 3(a) of Decision C(2007) 1697 at EUR 197 985 937,5;

3.	Dismisses the remainder of the action;

4.	Orders Heineken and Heineken Nederland to pay two-thirds of their own costs and of those of the European Commission;

5.	Orders the Commission to pay one third of its own costs and of those of Heineken and Heineken Nederland.

(1) OJ C 211, 8.9.2007.

30.7.2011

Official Journal of the European Union

C 226/24

Judgment of the General Court of 16 June 2011 — Ziegler v Commission

(Case T-199/08) (1)

(Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid rigging - Appreciable effect on trade - Fines - 2006 Guidelines on the method of setting fines)

2011/C 226/47

Language of the case: French

Parties

Applicant: Ziegler SA (Brussels, Belgium) (represented by: J.-L. Lodomez and J. Lodomez, lawyers)

Defendant: European Commission (represented initially by A. Bouquet and O. Beynet, and subsequently by A. Bouquet and N. von Lingen, Agents)

Re:

Application for the annulment of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), and, in the alternative, the annulment or reduction of the fine imposed on the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ziegler SA to pay the costs, including those relating to the interim proceedings before the Court.

(1) OJ C 183, 19.7.2008.

30.7.2011

Official Journal of the European Union

C 226/24

Judgment of the General Court of 16 June 2011 — Team Relocations and Others v Commission

(Joined Cases T-204/08 and T-212/08) (1)

(Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid rigging - Single and continuous infringement - Imputability of the infringement - Fines - 2006 Guidelines on the method of setting fines)

2011/C 226/48

Language of the case: English

Parties

Applicants: Team Relocations NV (Zaventem, Belgium) (represented by: H. Gilliams and J. Bocken, lawyers) (Case T-204/08); Amertranseuro International Holdings Ltd (London, United Kingdom); Trans Euro Ltd (London); and Team Relocations Ltd (London) (represented by: L. Gyselen, lawyer) (Case T-212/08)

Defendant: European Commission (represented by: A. Bouquet, A. Antoniadis and N. von Lingen, Agents)

Re:

Application for the partial annulment of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), and, in the alternative, the annulment or reduction of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the actions;

2.	Orders Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd and Team Relocations Ltd to pay the costs.

(1) OJ C 197, 2.8.2008.

30.7.2011

Official Journal of the European Union

C 226/24

Judgment of the General Court of 16 June 2011 — Gosselin Group and Stichting Administratiekantoor Portielje v Commission

(Joined Cases T-208/08 and T-209/08) (1)

(Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid rigging - Single and continuous infringement - Concept of an undertaking - Imputability of the infringement - Fines - 2006 Guidelines on the method of setting fines - Gravity - Duration)

2011/C 226/49

Language of the case: Dutch

Parties

Applicants: Gosselin Group NV, formerly Gosselin World Wide Moving NV (Deurne, Belgium) (represented by: F. Wijckmans and S. De Keer, lawyers) (Case T-208/08); and Stichting Administratiekantoor Portielje (Rotterdam, Netherlands) (represented by: D. Van hove, lawyer) (Case T-209/08)

Defendant: European Commission (represented by: A. Bouquet and F. Ronkes Agerbeek, Agents)

Re:

Application for the annulment of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), as amended by Commission Decision C(2009) 5810 final of 24 July 2009, and, in the alternative, the annulment or reduction of the fine imposed on the applicants

Operative part of the judgment

The Court:

In Case T-208/08, annuls Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) in so far as that decision finds that Gosselin Group NV participated in the infringement of Article 81(1) EC from 30 October 1993 to 14 November 1996;

2.	Sets the amount of fine imposed on Gosselin Group in Article 2 of Decision C(2008) 926, as amended by Commission Decision C(2009) 5810 final of 24 July 2009, at EUR 2,32 million;

3.	Dismisses the action as to the remainder;

4.	In Case T-209/08, annuls Decision C(2008) 926, as amended by Decision C(2009) 5810, in so far as it relates to Stichting Administratiekantoor Portielje;

5.	In Case T-208/08, orders each party to bear its own costs;

6.	In Case T-209/08, orders the European Commission to pay the costs.

(1) OJ C 223, 30.8.2008.

30.7.2011

Official Journal of the European Union

C 226/25

Judgment of the General Court of 16 June 2011 — Verhuizingen Coppens v Commission

(Case T-210/08) (1)

(Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid-rigging - Single and continuous infringement - Burden of proof)

2011/C 226/50

Language of the case: Dutch

Parties

Applicant: Verhuizingen Coppens NV (Bierbeek, Belgium) (represented by: J. Stuyck and I. Buelens, lawyers)

Defendant: European Commission (represented by: A. Bouquet and S. Noë, Agents)

Re:

Operative part of the judgment

The Court:

1.	Annuls Article 1(i) and Article 2(k) of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services);

2.	Orders the European Commission to pay the costs.

(1) OJ C 197, 2.8.2008.

30.7.2011

Official Journal of the European Union

C 226/25

Judgment of the General Court of 16 June 2011 — Putters International v Commission

(Case T-211/08) (1)

(Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid rigging - Single and continuous infringement - Fines - 2006 Guidelines on the method of setting fines - Gravity - Duration)

2011/C 226/51

Language of the case: Dutch

Parties

Applicant: Putters International NV (Cargovil, Belgium) (represented by: K. Platteau, lawyer)

Defendant: European Commission (represented by: A. Bouquet and F. Ronkes Agerbeek, Agents)

Re:

Application for the partial annulment of Commission decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), and, in the alternative, the annulment or reduction of the fine imposed on the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Putters International NV to pay the costs.

(1) OJ C 197, 2.8.2008.

30.7.2011

Official Journal of the European Union

C 226/26

Judgment of the General Court of 22 June 2011 — Mundipharma v OHIM — Asociación Farmaceuticos Mundi (FARMA MUNDI FARMACEUTICOS MUNDI)

(Case T-76/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark ‘FARMA MUNDI FARMACEUTICOS MUNDI’ - Earlier Community figurative ‘markmundipharma’ - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 226/52

Language of the case: English

Parties

Applicant: Mundipharma GmbH (Limburg an der Lahn (Germany)) (represented by: F. Nielsen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Asociación Farmaceuticos Mundi (Alfafar, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 1 December 2008 (Case R 825/2008-2) concerning opposition proceedings between Mundipharma GmbH and Asociación Farmaceuticos Mundi.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mundipharma GmbH to pay the costs.

(1) OJ C 102, 1.5.2009.

30.7.2011

Official Journal of the European Union

C 226/26

Order of the General Court of 24 May 2011 — Sanyō Denki v OHIM — Telefónica 02 Germany (eneloop)

(Case T-309/09) (1)

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

2011/C 226/53

Language of the case: English

Parties

Applicant: Sanyō Denki Kabushiki Kaisha (Osaka, Japan) (represented by: initially, M. De Zorti, M. Koch and T. Grimm, and subsequently V. Schmitz-Fohrmann, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially, M. Ahlgren, and subsequently M. Ahlgren and J.F. Crespo Carillo, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Telefónica 02 Germany GmbH & Co. OHG (Munich, Germany) (represented by: A. Fottner and M. Müller, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 6 May 2009 (Case R 794/2008-2), relating to opposition proceedings between Telefónica O2 Germany GmbH & Co. OHG and Sanyō Denki Kabushiki Kaisha

Operative part of the order

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

2.	The applicant and the intervener are ordered to bear their own costs and those incurred by the defendant.

(1) OJ C 267, 7.11.2009.

30.7.2011

Official Journal of the European Union

C 226/26

Action brought on 25 May 2011 — Coin v OHIM — Dynamiki Zoi (Fitcoin)

(Case T-272/11)

2011/C 226/54

Language in which the application was lodged: English

Parties

Applicant: Coin SpA (Mestre, Italy) (represented by: P. Perani and G. Ghisletti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Dynamiki Zoi AE (Athens, Greece)

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 21 February 2011 in case R 1836/2010-2;

—	Subordinately, annul the challenged decision only as far as CTM application No 3725298 was allowed for goods in class 25; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘Fitcoin’, for goods and services in classes 16, 25, 28, 35, 36 and 41 — Community trade mark application No 3725298

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

Mark or sign cited in opposition: Community trade mark registration No 109827, of the figurative mark ‘coin’, for goods and services in classes 16, 25, 28 and 35; Community trade mark registration No 3308401, of the figurative mark ‘coin’, for goods and services in classes 16, 25, 28 and 35; Community trade mark registration No 3364511, of the figurative mark ‘coinyou’, for goods and services in classes 16, 35 and 36; Italian trade mark registration No 160126, of the figurative mark ‘coin’, for goods in class 25; Italian trade mark registration No 253233, of the figurative mark ‘coin’, for goods in classes 16, 25, 28, 35, 36 and 41; Italian trade mark registration No 240305, of the figurative mark ‘coin’, for goods and services in classes 16, 25, 35, 36 and 41; Italian trade mark registration No 169548, of the figurative mark ‘coin’, for goods in classes 16 and 28; Italian trade mark registration No 240286, of the figurative mark ‘coin’, for goods in class 25; International trade mark registration No R381015, of the figurative mark ‘coin’, for goods and services in classes 16, 25, 28, 35, 36 and 41; International trade mark registration No R363492, of the figurative mark ‘coin’, for goods and services in classes 16, 28, 35, 36 and 41; International trade mark registration No 260545, of the figurative mark ‘coin’, for goods in class 25; International trade mark registration No R299708, of the figurative mark ‘coin’, for goods and services in classes 35, 36 and 41; International trade mark registration No 299710, of the figurative mark ‘coin’, for goods in classes 16 and 28; International trade mark registration No R363491, of the figurative mark ‘coin’, for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Partially annulled the contested decision and upholded the opposition for goods in classes 28 and 41, and rejected the appeal for the remaining goods and services, therefore, allows the application for goods in classes 16, 25, 28, 35, 36 and 41

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal took account only of one of the possible meanings of the word FIT and found the existence of likelihood of confusion with reference to the main part of the relevant goods and services on the basis of such partial assessment.

30.7.2011

Official Journal of the European Union

C 226/27

Action brought on 30 May 2011 — Régie Networks and NRJ Global v Commission

(Case T-273/11)

2011/C 226/55

Language of the case: French

Parties

Applicants: Régie Networks (Lyons, France) and NRJ Global (Paris, France) (represented by: B. Geneste and C. Vannini, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	Annul Commission Decision C(2010) 6483 Final of 29 September 2010 concerning the aid scheme C 4/09 (ex N 679/97) implemented by France to promote radio broadcasting (OJ 2011 L 61, p. 22);

—	Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on six pleas in law.

First plea in law, alleging infringement of the principle of res judicata by the Court of Justice in its judgment in Case C-333/07 Régie Networks [2008] ECR I-10807, in so far as the Commission did not comply with the relevant grounds and the operative part of judgment, by disregarding, in re-examining the compatibility of the aid scheme at issue, the method by which that aid scheme was financed and which the Court had mentioned to it.

Second plea in law, alleging an error of law relating to the grounds of the contested decision in so far as the Commission artificially disassociated the unlawful method of financing from the aid scheme concerned, although it had declared in its decision to initiate the inter partes procedure of 16 September 2009 that the unlawful nature of the charge has the consequence that that aid scheme in its entirety is essentially and directly unlawful.

Third plea in law, alleging infringement of the rules of the Treaty relating to the freedom to provide services in so far as the unlawful nature of the charge financing that aid scheme is established by reason of the fact that the detailed rules for the territorial assessment are contrary to the principle of freedom to provide services. The applicants submit that the partial reimbursement, ordered by the contested decision, cannot in any event alter the nature of the aid scheme in question and retroactively make it consistent with the Treaty.

Fourth plea in law, alleging that the contested decision did not provide an adequate statement of reasons in so far as the Commission did not explain in detail how the conditions set out in the decision were capable of rendering the scheme compatible despite the finding that the method of financing was incompatible.

Fifth plea in law, alleging infringement of the principle of proportionality in so far as the applicants submit that by choosing to declare the aid scheme compatible by imposing retroactive conditions rather than purely and simply finding it incompatible, while exempting the French Republic from recovering the aid from the beneficiaries, the Commission infringed the principle of proportionality.

Sixth plea in law alleging abuse of process and infringement of Article 7 of Regulation (EC) No 659/1999 in so far as the Commission, at the end of the formal investigation procedure, adopted a conditional decision, even though not only had its doubts as regards the compatibility of the aid scheme not been removed but it was also satisfied that the scheme was incompatible. It infringed the provisions of Regulation No 659/1999 and therefore committed an abuse of process.

30.7.2011

Official Journal of the European Union

C 226/28

Action brought on 10 June 2011 — Buzzi Unicem v Commission

(Case T-297/11)

2011/C 226/56

Language of the case: Italian

Parties

Applicant: Buzzi Unicem (Casale Monferrato, Italy) (represented by: C. Osti and A. Prastaro, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the Contested Decision in its entirety for failure to state reasons, or to state adequate reasons, and the consequent breach of the applicant’s rights of defence and the principle of due process;

—	annul the Contested Decision in its entirety for excess and abuse of powers and for the consequent reversal of the burden of proof;

—

annul the Contested Decision, in whole or in part, as being ultra vires with respect to the powers conferred on the Commission under Article 18 [of Regulation No 1/2003]; and for breach of the principles of proportionality and due process, and failure to hear argument on an inter partes basis, in breach of the Commission’s ‘Best Practices’;

—	in any event, order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging failure to state reasons, or to state adequate reasons; breach of the rights of the defence; and breach of the principle of due process

—

the applicant objects that the Contested Decision fails to fulfil the Commission’s duty to state reasons and entails breach of the applicant’s rights of defence in that it does not provide, or provides in a manner that is wholly inadequate, information regarding the subject and purpose of the investigation.

Second plea in law, alleging excess and abuse of powers, and reversal of the burden of proof

—

the applicant claims that the Commission exceeded and abused its powers in that the request for information should be used to verify evidence already in its possession, not for compiling — in the absence of evidence — a comprehensive database on the market. That also amounts to a breach of the presumption of innocence and entails a complete reversal of the burden of proof.

Third plea in law, alleging that the Commission acted ultra vires with respect to the powers conferred upon it under Article 18 of Regulation No 1/2003

—

the applicant argues that the pattern of requests from the Commission is in excess of the powers conferred under Article 18, in accordance with which the Commission may request only information which is necessary as relating to the facts of which the undertaking can be aware and communicating to it the relevant documents in its possession.

Fourth plea in law, alleging breach of the principle of proportionality and that the Commission acted ultra vires in relation to Article 18

—

the applicant claims that the Contested Decision exceeds the limits laid down in Article 18 concerning necessity and breaches the principle of proportionality in that (i) it requests information which is unnecessary; (ii) it did not choose, from among a number of suitable measures, the course of action which would entail the least inconvenience for the undertaking; and (iii) the requests are excessively burdensome for the applicant.

Fifth plea in law, alleging breach of the Commission’s ‘Best Practices’ and the principle of sound administration

—

the applicant claims that the Commission acted in breach of its own ‘Best Practices’ in that it first asked the applicant to comment on the draft Contested Decision but did not then take any account of those comments; also in that the Contested Decision differs significantly from the draft. Furthermore, the applicant claims that the constant amendments to the requests constitute clear evidence of the lack of diligence which characterised the Commission’s conduct, in breach of the principle of sound administration.

30.7.2011

Official Journal of the European Union

C 226/29

Action brought on 16 June 2011 — Ben Ali v Council

(Case T-301/11)

2011/C 226/57

Language of the case: French

Parties

Applicant: Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali (Tunis, Tunisia) (represented by: A. de Saint Remy, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—	adopt a measure of organisation of procedure under Article 64 of the General Court’s Rules of Procedure, to ensure that the Commission disclose all documents relating to the adoption of the contested regulation;

—	annul Council Regulation (EU) No 101/2011 of 4 February 2011 [concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia] in so far as it concerns the applicant;

—	failing annulment, apply derogations in respect of financial assets serving basic needs, but also some extraordinary expenses assessed case by case;

—	order the Council of the European Union to pay the applicant an overall sum of EUR 50 000 in compensation for all forms of damage;

—	order the Council of the European Union to pay the applicant a sum of EUR 7 500 for legal expenses in support of the application;

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

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

First plea in law, alleging lack of sufficient legal basis since first, the measure is not aimed at the maintenance or restoration of peace and security and infringes the individual rights of the applicant, second, the statement of reasons for the decision contains inaccuracies and errors and, third the measure is disproportionate and unjustified.

2.	Second plea in law, alleging an infringement of the rights of the defence and of the right to an effective legal remedy.

Third plea in law, alleging an infringement of the duty to state reasons in the measure where, first, the freezing of funds is a penalty decided upon by a political body, second, no procedure for removal from the list is mentioned in the contested regulation, third, the applicant’s fundamental rights have been infringed at every stage of the procedure and, fourth, the statement of reasons for the measures is general, without foundation, vague and imprecise.

4.	Fourth plea in law, alleging a manifest error in assessment of the facts since the applicant’s participation in an unlawful act has not been proved.

5.	Fifth plea in law concerning the right to property to the extent that the measures are an unjustified restriction on the applicant’s right to property.

6.	Sixth plea in law, alleging an infringement of the principle of proportionality.

7.	Seventh plea in law concerning the right to life since the effect of the freezing of assets should not to be to jeopardise the applicant’s means of support and right to life.

30.7.2011

Official Journal of the European Union

C 226/29

Action brought on 16 June 2011 — Alumina v Council

(Case T-304/11)

2011/C 226/58

Language of the case: French

Parties

Applicant: Alumina d.o.o (Zvornik, Bosnia and Herzegovina) (represented by: J.-F. Bellis and B. Servais, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—	annul the anti-dumping duty imposed on the applicant by Council Implementing Regulation (EU) No 464/2011 of 11 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of zeolite A powder originating in Bosnia and Herzegovina;

—	order the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First, the applicant considers that the anti-dumping duty fixed in the contested regulation is unlawful since the method used to calculate the constructed normal value is in breach of Article 2(3) and (6) of the basic regulation. In the construction of the normal value, the defendant has used a profit margin of 58,89 % calculated on the basis of the applicant’s non-representative domestic sales. Use of such a profit margin is incompatible with Article 2 of the basic regulation. The construction of the normal value is affected by a fundamental contradiction since the method used by the defendant to construct the normal value obtains the same result as if the normal value had been based on the prices of the non-representative domestic sales. Such a method is contrary to the settled practice of the Commission and the Council and to the case-law of the General Court and the Court of Justice. Moreover, the chosen profit margin of 58,89 % is not ‘reasonable’. Lastly, the defendant is wrong to rely on case-law stemming from WTO rulings to apply a profit margin which is not ‘reasonable’ in the construction of the normal value applicable to the applicant’s exports.

Secondly, the applicant also considers that the method used to calculate the constructed normal value is in breach of the provisions of Article 2(6) of the basic regulation in that the applicant’s domestic sales were not made in the ‘ordinary course of trade’ within the meaning of the third subparagraph of Article 2(1) and the second subparagraph of Article 2(3) of the basic regulation.

30.7.2011

Official Journal of the European Union

C 226/30

Action brought on 17 June 2011 — Kadio Morokro v Council

(Case T-316/11)

2011/C 226/59

Language of the case: French

Parties

Applicant: Mathieu Kadio Morokro (Cocody, Côte d'Ivoire) (represented by: S. Le Damany, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Council Decision 2011/221/CFSP of 6 April 2011, (1) and Council Regulation (EU) No 330/2011 of 6 April 2011, (2) in so far as they concern him,

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

Pleas in law and main arguments

In support of his action, the applicant raises a plea alleging an infringement of the duty to state reasons in so far as the contested decision and regulation infringe Article 296 TFEU, pursuant to which legal acts of the European Union institutions must state the reasons on which they are based. The applicant submits, first, that the statement of reasons does not clarify why he was included on the list of persons, in the annex to the decision and the regulation, against whom certain restrictive measures were imposed and, second, that that failure to state reasons deprives him of the possibility to properly challenge the restrictive measures imposed on him.

(1) Council Decision 2011/221/CFSP of 6 April 2011, amending Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire (OJ 2011 L 93, p. 20).

(2) Council Regulation (EU) No 330/2011 of 6 April 2011, amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire (OJ 2011 L 93, p. 10).

30.7.2011

Official Journal of the European Union

C 226/31

Action brought on 3 March 2011 — ZZ v Council

(Case F-23/11)

2011/C 226/61

Language of the case: French

Parties

Applicant: ZZ (represented by: E. Boigelot and S. Woog, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision of the Council not to include the applicant in the list of officials promoted to grade AST 9 under the 2010 promotion procedure and compensation for the non-material harm suffered.

Form of order sought

—	Annul the decision of the Council, published on 21 May 2010 by Staff Note No 82/10, not to include the applicant in the list of officials promoted from grade AST 8 to grade AST 9 under the 2010 promotion procedure;

—

As a consequence of that annulment, undertake a fresh comparative examination of the merits of the applicant and of the other candidates for the 2010 promotion procedure and promote the applicant as a supernumerary to grade AST 9 with retroactive effect to 1 January 2010, with payment of interest on the arrears of remuneration at the rate fixed by the European Central Bank for main re-financing operations, with effect from 1 January 2010, increased by two percentage points, without, however, calling into question the promotion of the other officials promoted;

—

In the alternative, if the Tribunal were to consider that the applicant’s promotion to grade AST 9 cannot be made retroactively as a supernumerary, annul not only the decision not to include the applicant in the list of officials promoted from grade AST 8 to grade AST 9 under the 2010 promotion procedure but also the promotion decisions which led to the establishment of the list of officials promoted to grade AST 9, published on 21 May 2010;

—

In the further alternative, if the Tribunal were to consider that annulment of the promotion decisions sought in the alternative constituted an excessive penalty for the unlawfulness found, order the Council to pay compensation covering the damage to the applicant’s career caused by the delay in promotion between 1 January 2010 and the date on which promotion is granted;

—	Order the Council to pay the applicant the sum of EUR 3 500 as compensation for the non-material damage suffered by reason of his not being promoted on 1 January 2010, the right to increase that sum during the proceedings being reserved;

—	Order the Council to pay the costs.

30.7.2011

Official Journal of the European Union

C 226/31

Action brought on 12 May 2011 — ZZ v European Commission

(Case F-56/11)

2011/C 226/62

Language of the case: French

Parties

Applicant: ZZ (represented by: F. Frabetti, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to downgrade the applicant by two grades in the same function group.

Form of order sought

—	Annul the decision of the Appointing Authority of 6 July 2010 downgrading the applicant by two grades in the same function group following the decision of the Appointing Authority of 16 November 2009 opening disciplinary proceedings against the applicant;

—	Order the European Commission to pay the costs.

30.7.2011

Official Journal of the European Union

C 226/32

Action brought on 27 May 2011 — ZZ v FRONTEX

(Case F-61/11)

2011/C 226/63

Language of the case: English

Parties

Applicant: ZZ (represented by: S. A. Pappas, lawyer)

Defendant: European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX)

Subject-matter and description of the proceedings

The annulment of the decision to revoke a previous decision to renew the contract of employment of the applicant and annulment of some parts of assessment reports for the period from August 2006 to December 2009.

Form of order sought

The applicant claims that the European Union Civil Service Tribunal should:

—	Annul the decision of 24 January 2011 as confirmed by the email of 25 January 2011, by the decision of 28 March 2011 and by the letter of 4 May 2011 of the Executive Director of FRONTEX;

—	annul the 2009 appraisal to the extent it contains the diverging comment of the countersigning officer of 30 October 2009;

—	annul the 2010 FRONTEX Annual Assessment Report Form A, dated 21 June 2010 to the extent it contains the diverging comment of the countersigning officer of 20 June 2010;

—	order FRONTEX to pay the costs.

30.7.2011

Official Journal of the European Union

C 226/32

Action brought on 1 June 2011 — ZZ v Commission

(Case F-63/11)

2011/C 226/64

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the implied decision not to renew the applicant’s temporary staff contract

Form of order sought

—

Annul the implied decision adopted on 12 August 2010 by the Director General of OLAF (European Anti-Fraud Office), in his capacity as the authority authorised to conclude contracts of employment, not to renew the applicant’s contract, as is apparent, inter alia, from the lack of reply to the request sent to him by the applicant on 12 April 2011;

—	In so far as necessary, annul the decision adopted on 22 February 2011 by the authority authorised to conclude contracts of employment rejecting the claim brought by the applicant on the basis of Article 90(2) of the Staff Regulations;

—	In consequence, reinstate the applicant in the functions which he performed within OLAF, in the context of a prolongation of his contract in accordance with the statutory requirements;

—

In the alternative, and in the event that the claim for reinstatement made above should not be upheld, order the defendant to compensate the applicant for the material damage suffered, provisionally estimated ex aequo et bono at the difference in the remuneration which he received as a temporary staff member in OLAF and that which he receives in his present post (that is to say, around EUR 3 000 per month), at the very least for a length of time similar to that of his initial contract (four years) and beyond that period on the basis that that contract would have been renewed for a third time, entitling him to a contract of employment for an indefinite period;

—	In any event, order the defendant to pay a provisional ex aequo et bono sum of EUR 5 000 in compensation for the non-material damage, together with late-payment interest at the legal rate from the date of the judgment;

—	Order the Commission to pay the costs.

		ISSN 1725-2423 doi:10.3000/17252423.C_2011.226.eng
Official Journal of the European Union		C 226

English edition	Information and Notices	Volume 54 30 July 2011

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2011/C 226/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 219, 23.7.2011	1