(2011/C 232/01)

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

OJ C 226, 30.7.2011

Past publications

OJ C 219, 23.7.2011

OJ C 211, 16.7.2011

OJ C 204, 9.7.2011

OJ C 194, 2.7.2011

OJ C 186, 25.6.2011

OJ C 179, 18.6.2011

These texts are available on:

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

Appeal Chamber

(2011/C 232/02)

On 6 July 2011, the General Court decided that, for the period from 1 September 2011 to 31 August 2013, the Appeal Chamber will be composed of the President of the Court and, in rotation, two Presidents of Chambers.

The Judges who will sit with the President of the Appeal Chamber to make up the extended formation of five Judges will be the three Judges of the formation initially hearing the case and, in rotation, two Presidents of Chambers.

Criteria for assigning cases to Chambers

(2011/C 232/03)

On 6 July 2011, the General Court laid down the following criteria for the assignment of cases to the Chambers for the period from 1 September 2011 to 31 August 2013, in accordance with Article 12 of the Rules of Procedure:

1.	Appeals against the decisions of the Civil Service Tribunal shall be assigned to the Appeal Chamber as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure.

2.

Cases other than those referred to in paragraph 1 above shall be assigned to Chambers of three Judges as soon as the application has been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure. Cases referred to in this paragraph shall be allocated to the Chambers in turn, in accordance with the date on which they are registered at the Registry, following three separate rotas: — for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures; — for cases concerning intellectual property rights referred to in Article 130(1) of the Rules of Procedure; — for all other cases. In applying those rotas, the Chamber composed of four Judges which is sitting with three Judges shall be taken into consideration twice at each third turn. The President of the General Court may derogate from the rotas on the ground that cases are related or with a view to ensuring an even spread of the workload.

Designation of the Judge replacing the President as the Judge hearing applications for interim measures

(2011/C 232/04)

On 6 July 2011, the General Court decided, in accordance with Article 106 of the Rules of Procedure, to designate Judge Prek to replace the President of the General Court for the purpose of deciding applications for interim measures where the latter is absent or prevented from dealing with them, for the period from 1 September 2011 to 31 August 2012.

Judgment of the Court (First Chamber) of 16 June 2011 (reference for a preliminary ruling from the Rechtbank ’s-Gravenhage (Netherlands)) — Fatma Pehlivan v Staatssecretaris van Justitie

(Case C-484/07) (1)

(EEC-Turkey Association Agreement - Family reunification - First indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council - Child of a Turkish worker who lived together with that worker for more than three years, but married before the expiry of the three-year period laid down in that provision - National law calling into question, on that ground, the residence permit of the person concerned)

(2011/C 232/05)

Language of the case: Dutch

Referring court

Rechtbank ’s-Gravenhage, sitting at Roermond

Parties to the main proceedings

Applicant: Fatma Pehlivan

Defendant: Staatssecretaris van Justitie

Re:

Reference for a preliminary ruling — Rechtbank ’s-Gravenhage, sitting at Roermond — Interpretation of the first indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Association Agreement between the European Economic Community and Turkey — Child of a Turkish worker who resided with that worker for at least three years but who married a Turkish national in Turkey during that period without informing the competent authorities

Operative part of the judgment

The first indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, must be interpreted as meaning that:

—

that provision precludes legislation of a Member State under which a family member properly authorised to join a Turkish migrant worker who is already duly registered as belonging to the labour force of that State loses the enjoyment of the rights based on family reunification under that provision for the reason only that, having attained majority, he or she gets married, even where he or she continues to live with that worker during the first three years of his or her residence in the host Member State;

—

a Turkish national who, like the applicant in the main proceedings, comes within that provision may validly claim a right of residence in the host Member State on the basis thereof, notwithstanding the fact that he or she got married before the expiry of the three-year period laid down in that first indent of the first paragraph of Article 7 of Decision No 1/80, in the case where, during the whole of that period, he or she actually lived under the same roof as the Turkish migrant worker through whom he or she was admitted to the territory of that State on the ground of family reunification.

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(1)  OJ C 8, 12.1.2008.

Judgment of the Court (Grand Chamber) of 14 June 2011 (reference for a preliminary ruling from the Chambre de recours des écoles européennes) — Paul Miles and Others v European Schools

(Case C-196/09) (1)

(Reference for a preliminary ruling - Concept of ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU - Complaints Board of the European Schools - System of remuneration of teachers seconded to the European Schools - No adjustment of remuneration following depreciation in sterling - Compatibility with Articles 18 TFEU and 45 TFEU)

(2011/C 232/06)

Language of the case: French

Referring court

Chambre de recours des écoles européennes

Parties to the main proceedings

Applicants: Paul Miles, Robert Watson Mac Donald

Defendant: European Schools

Re:

Reference for a preliminary ruling — Complaints Board of the European Schools — Interpretation of Articles 12, 39 and 234 of the EC Treaty — Meaning of national court or tribunal for the purposes of Article 234 EC — Remuneration system for teachers on secondment to the European Schools — No arrangements for adapting the remuneration by reason of the pound sterling being devalued — Infringement of the principles of equal treatment and the freedom of movement for workers

Operative part of the judgment

The Court of Justice has no jurisdiction to rule on a reference for a preliminary ruling from the Complaints Board of the European Schools.

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(1)  OJ C 193, 15.8.2009.

Judgment of the Court (Second Chamber) of 22 June 2011 (Reference for a preliminary ruling from the Gerechtshof ’s-Gravenhage (Netherlands)) — Staat der Nederlanden v Denkavit Nederland BV and Others

(Case C-346/09) (1)

(Agriculture - Animal health - Directive 90/425/EEC - National temporary regulation intended to combat the spread of bovine spongiform encephalopathy by prohibiting the production of and trading in processed animal proteins for feeding to farmed animals - Application of that regulation before the entry into force of Decision 2000/766/EC requiring such prohibition - Application of that regulation to two products eligible for exemption from the prohibition required by that decision - Compatibility with Directive 90/425/EEC and Decisions 94/381/EC and 2000/766/EC)

(2011/C 232/07)

Language of the case: Dutch

Referring court

Gerechtshof ’s-Gravenhage

Parties to the main proceedings

Appellant: Staat der Nederlanden

Respondents: Denkavit Nederland BV, Cehave Landbouwbelang Voeders BV, Arie Blok BV, Internationale Handelsmaatschappij‘Demeter’ BV

Re:

Reference for a preliminary ruling — Gerechtshof ’s-Gravenhage — Interpretation of: Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29); Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein (OJ 1994 L 172, p. 23); Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2000 L 306, p. 32); and Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Council Decision 2000/766/EC concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2001 L 2, p. 32) — National legislation prohibiting the production and marketing of processed animal proteins for feeding farm animals — Date of entry into force and transitional period

Operative part of the judgment

The law of the European Union, in particular Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein and Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein, does not preclude national legislation which, with a view to affording protection against bovine spongiform encephalopathy, imposed a temporary prohibition on the production of and trading in processed animal proteins for feeding to farmed animals if the situation in the Member State concerned was so urgent as to justify the immediate adoption of such measures on serious grounds of public or animal health. It is for the referring court to establish whether that condition was met and the principle of proportionality observed.

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(1)  OJ C 282, 21.11.2009.

Judgment of the Court (Grand Chamber) of 14 June 2011 (reference for a preliminary ruling from the Amtsgericht Bonn (Germany)) — Pfleiderer AG v Bundeskartellamt

(Case C-360/09) (1)

(Competition - Administrative procedure - Documents and information provided under a national leniency programme - Possible negative effects of third-party access to such documents on the effectiveness and proper functioning of cooperation between the authorities forming the European Competition Network)

(2011/C 232/08)

Language of the case: German

Referring court

Amtsgericht Bonn

Parties to the main proceedings

Applicant: Pfleiderer AG

Defendant: Bundeskartellamt

Re:

Reference for a preliminary ruling — Amtsgericht Bonn — Interpretation of provisions of Community law on cartels, in particular Articles 11 and 12 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), and the second paragraph of Article 10 EC in conjunction with Article 3(1)(g) EC — Documents and information supplied to the Member States’ competition authorities by applicants for leniency pursuant to a national leniency programme — Possible negative effects of third-party access to such documents on the efficiency and proper functioning of the cooperation between the authorities constituting the European competition network

Operative part of the judgment

The provisions of European Union law on cartels, and in particular Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 TFEU and 102 TFEU, must be interpreted as not precluding a person who has been adversely affected by an infringement of European Union competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement. It is, however, for the courts and tribunals of the Member States, on the basis of their national law, to determine the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.

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(1)  OJ C 297, 5.12.2009.

Judgment of the Court (Fourth Chamber) of 22 June 2011 (reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic)) — Marie Landtová v Česká správa socialního zabezpečení

(Case C-399/09) (1)

(Freedom of movement for workers - Social security - Agreement on social security entered into by two Member States before accession to the European Union - Member State competent to determine the value of completed periods of insurance - Old-age pension - Supplementary benefit paid solely to nationals and residents of a Member State)

(2011/C 232/09)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Marie Landtová

Defendant: Česká správa socialního zabezpečení

Re:

Request for a preliminary ruling — Nejvyšší správní soud — Interpretation of Article 12 EC and Articles 3(1) and 7(2)(c), 10 and 46 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) together with point 6 of Part A of Annex III thereto — Old age pension — Determination of the Member State competent to determine the value of completed periods of insurance — Effects of Community legislation on an agreement on social security between two Member States entered into before their accession to the European Union.

Operative part of the judgment

1.

The provisions of point 6 of Annex III(A) to Council Regulation (EC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 and as amended by Regulation (EC) No 629/2006 of the European Parliament and of the Council of 5 April 2006, read in conjunction with Article 7(2)(c) thereof, do not preclude a national rule, such as that at issue in the main proceedings, which provides for payment of a supplement to old age benefit where the amount of that benefit, granted pursuant to Article 20 of the bilateral agreement between the Czech Republic and the Slovak Republic signed on 29 October 1992 as a measure to regulate matters after the dissolution of the Czech and Slovak Federal Republic, is lower than that which would have been received if the retirement pension had been calculated in accordance with the legal rules of the Czech Republic.

2.

The combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71, as amended by Regulation No 629/2006, preclude a national rule, such as that at issue in the main proceedings, which allows payment of a supplement to old age benefit solely to Czech nationals residing in the territory of the Czech Republic, but it does not necessarily follow, under European Union law, that an individual who satisfies those two requirements should be deprived of such a payment.

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(1)  OJ C 24, 30.1.2010.

Judgment of the Court (Third Chamber) of 16 June 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee, Hananja van der Lee

(Case C-462/09) (1)

(Approximation of laws - Copyright and related rights - Directive 2001/29/EC - Reproduction right - Exceptions and limitations - Exception of copying for private use - Article 5(2)(b) and (5) - Fair compensation - Person responsible for paying the levy earmarked for financing of that compensation - Distance selling between two persons resident in different Member States)

(2011/C 232/10)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Stichting de Thuiskopie

Defendants: Opus Supplies Deutschland GmbH, Mijndert van der Lee, Hananja van der Lee

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 5(2)(b) and (5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Reproduction rights — Fair compensation — Distance selling between two persons residing in two different Member States — Legislation not permitting the recovery of compensation

Operative part of the judgment

1.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service.

2.

Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis.

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(1)  OJ C 24, 30.1.2010.

Judgment of the Court (Seventh Chamber) of 16 June 2011 (reference for a preliminary ruling from the Upravno sodišče Republike Slovenije (Slovenia)) — Marija Omejc v Republika Slovenija

(Case C-536/09) (1)

(Common agricultural policy - Community aid schemes - Integrated administration and control system - Regulation (EC) No 796/2004 - Fact of preventing an on-the-spot check from being carried out - Definition - Farmer not living on the holding - Farmer’s representative - Definition)

(2011/C 232/11)

Language of the case: Slovene

Referring court

Upravno sodišče Republike Slovenije

Parties to the main proceedings

Applicant: Marija Omejc

Defendant: Republika Slovenija

Re:

Reference for a preliminary ruling — Upravno sodišče Republike Slovenije — Interpretation of Article 23(2) Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18) — Concept of prevention of an on-the-spot check — Concept of the representative of the farmer, when the farmer does not reside on the farm

Operative part of the judgment

1.

The expression ‘prevents an on-the-spot check from being carried out’ in Article 23(2) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in 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, corresponds to an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, to the effect that it includes, in addition to deliberate conduct, any act or omission ascribable to the negligence of the farmer or his representative which has the consequence of preventing an on-the-spot check from being carried out in full, where the farmer or his representative has not taken all measures which may reasonably be required of him in order to ensure that that check may be carried out in full.

2.	The rejection of the aid applications concerned, under Article 23(2) of Regulation No 796/2004, does not depend on the farmer or his representative being adequately informed of the part of the on-the-spot check that requires his cooperation.

3.

The concept of ‘representative’, referred to in Article 23(2) of Regulation No 796/2004, which is an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, must be interpreted as meaning that it includes, when on-the-spot checks are carried out, any adult having proper capacity, who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding, in so far as the farmer has clearly expressed his wish to give that person authority in order to represent him and, therefore, undertakes to assume responsibility for all that person’s acts and omissions.

4.	Article 23(2) of Regulation No 796/2004 must be interpreted as meaning that a farmer who does not live on the agricultural holding which he runs is not required to appoint a representative who may, as a rule, be found at any given moment on that holding.

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(1)  OJ C 63, 13.3.2010.

Judgment of the Court (Fourth Chamber) of 16 June 2011 — European Commission v Republic of Austria

(Case C-10/10) (1)

(Failure of a Member State to fulfil obligations - Free movement of capital - Deductibility of gifts to research and teaching institutions - Deductibility limited to gifts to institutions established in national territory)

(2011/C 232/12)

Language of the case: German

Parties

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

Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 56 EC and of Article 40 of the Agreement of 2 May 1992 on the European Economic Area (OJ 1994 L 1, p. 3) — National rules which make the granting of the tax advantage provided for donations to research and public-education establishments subject to the condition that the beneficiary of the donation is established within the national territory

Operative part of the judgment

The Court:

1.

Declares that, by authorising the deduction from tax of gifts to research and teaching institutions exclusively where those institutions are established in Austria, the Republic of Austria has failed to fulfil its obligations under Article 56 EC and Article 40 of the Agreement on the European Economic Area of 2 May 1992;

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

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(1)  OJ C 63, 13.3.2010.

Judgment of the Court (Seventh Chamber) of 16 June 2011 (reference for a preliminary ruling from the Højesteret (Denmark)) — Unomedical A/S v Skatteministeriet

(Case C-152/10) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Plastic dialysis drainage bags intended exclusively for use with dialysers (artificial kidneys) - Plastic urine drainage bags intended exclusively for use with catheters - Headings 9018 and 3926 - ‘Parts’ and ‘accessories’ - Other articles of plastics)

(2011/C 232/13)

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicant: Unomedical A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Højesteret — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) Plastic drainage bags intended exclusively for use with a dialyser — Classification under subheading 9018 90 30 or subheading 3926 90 99 — Plastic drainage bags intended exclusively for use with a catheter — Classification under subheading 9018 39 00 or subheading 3926 90 99 — Definition of ‘Part and/or accessory’

Operative part of the judgment

The Combined Nomenclature, set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions applicable to the dispute in the main proceedings, must be interpreted as meaning that a dialysis drainage bag, manufactured from plastic, which is specially designed for, and can be used only with, a dialyser (artificial kidney), had, between May 2001 and December 2003, to be classified under subheading 3926 90 99 of the Combined Nomenclature as ‘plastics and articles thereof’ and that a urine drainage bag, manufactured from plastic, which is specially designed for, and therefore can be used only in connection with, a catheter had, during the same period, to be classified under subheading 3926 90 99 of the Combined Nomenclature as ‘plastics and articles thereof’.

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(1)  OJ C 148, 5.6.2010.

Judgment of the Court (Fourth Chamber) of 16 June 2011 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gliwicach (Poland)) — Logstor ROR Polska sp. z o.o. v Dyrektor Izby Skarbowej w Katowicach

(Case C-212/10) (1)

(Taxation - Capital duty - Directive 69/335/EEC - Indirect taxes on the raising of capital - Taxation of a loan taken up by a capital company from a person entitled to a percentage of the profits of the same company - Right of a Member State to reintroduce a tax which was no longer in force at the date of its accession to the European Union)

(2011/C 232/14)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Gliwicach

Parties to the main proceedings

Applicant: Logstor ROR Polska sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Katowicach

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny w Gliwicach — Interpretation of Article 4(2) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Right of a Member State to reintroduce a tax abolished on the date on which it acceded to the European Union — Capital duty — Charging of capital duty on a loan taken out by a capital company with a person entitled to a percentage of the profits of that company

Operative part of the judgment

Article 4(2) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as precluding a Member State from reintroducing a capital duty on a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company, where that Member State has previously waived the levying of that tax.

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(1)  OJ C 209, 31.7.2010.

Judgment of the Court (Fourth Chamber) of 16 June 2011 — Union Investment Privatfonds GmbH v UniCredito Italiano SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-317/10 P) (1)

(Appeals - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word marks UNIWEB and UniCredit Wealth Management - Opposition by the proprietor of the national word marks UNIFONDS and UNIRAK and of the national figurative mark UNIZINS - Assessment of the likelihood of confusion - Likelihood of association - Series or family of trade marks)

(2011/C 232/15)

Language of the case: Italian

Parties

Appellant: Union Investment Privatfonds GmbH (represented by: J. Zindel and C. Schmid, Rechtsanwälte)

Other parties to the proceedings: UniCredito Italiano SpA (represented by: G. Floridia, avvocato), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, Agent)

Re:

Appeal brought against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano v OHIM — Union Investment Privatfonds, by which that court dismissed the claims of Union Investment Privatfonds GmbH in the context of the action brought against two decisions of the Second Board of Appeal of OHIM of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) and of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2), concerning opposition proceedings between Union Investment Privatfonds GmbH and UniCredito Italiano SpA

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano v OHIM — Union Investment Privatfonds (UNIWEB).

2.	Refers the case back to the General Court of the European Union.

3.	Orders that the costs be reserved.

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(1)  OJ C 146, 11.9.2010.

Order of the Court of 11 May 2011 (reference for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria)) — Tony Georgiev Semerdzhiev v ET Del-Pi-Krasimira Mancheva

(Case C-32/10) (1)

(Article 92(1) of the Rules of Procedure - Directive 90/314/EEC - Package travel, package holidays and package tours - Facts preceding the accession of the Republic of Bulgaria to the European Union - Manifest lack of jurisdiction of the Court to answer the questions referred)

(2011/C 232/16)

Language of the case: Bulgarian

Referring court

Varhoven kasatsionen sad (Bulgaria)

Parties to the main proceedings

Applicant: Tony Georgiev Semerdzhiev

Defendant: ET Del-Pi-Krasimira Mancheva

Intervening party: ZAD Bulstrad VIG

Re:

Reference for a preliminary ruling — Varhoven kasatsionen sad — Interpretation of Articles 2(1)(c), 4(1)(b)(iv) and 5(2)(3) and (4) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59) — Concept of ‘other tourist services’ not ancillary to transport or accommodation to be borne by the organiser — Obligation for the organiser to conclude an individual insurance contract for each consumer and to provide the consumer with the original before travel — Obligation for the organiser to conclude an individual insurance contract covering costs of repatriation in case of accident — Concept of ‘damage’ resulting for the consumer from the failure to perform or the improper performance of the contract — Non-material damages included

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to rule on the questions referred by the Varhoven kasatsionen sad (Bulgaria).

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(1)  OJ C 100, 17.4.2010.

Order of the Court (Fifth Chamber) of 23 May 2011 (reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium)) — André Rossius (C-267/10), Marc Collard (C-268/10) v Etat Belge — SPF Finances

(Joined Cases C-267/10 and C-268/10) (1)

(Article 6(1) TEU - Article 35 of the Charter of Fundamental Rights of the European Union - Possession and sale of manufactured smoking tobacco - National legislation authorising the levying of excise duty on tobacco products - Court manifestly incompetent)

(2011/C 232/17)

Language of the case: French

Referring court

Tribunal de première instance de Namur

Parties to the main proceedings

Applicants: André Rossius (C-267/10), Marc Collard (C-268/10)

Defendant: Etat Belge — SPF Finances

In the presence of: Etat Belge — Service public federal Défense

Re:

Reference for a preliminary ruling — Tribunal de première instance de Namur — Interpretation of the first paragraph of Article 6(1) TEU and of Article 35 of the Charter of Fundamental Rights of the European Union — Whether national legislation permitting the production, import, promotion and sale of manufactured smoking tobacco, recognised to be seriously harmful, is compatible with the object of protecting human health — Whether the provisions of national law authorising the levying of excise duty on tobacco products are valid in the light of the [EU] rules cited

Operative part of the order

The Court of Justice of the European Union is manifestly incompetent to reply to the questions asked by the Tribunal de première instance de Namur (Belgium) by decisions of 24 March 2010.

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(1)  OJ C 221, 14.08.2010.

Order of the Court of 14 April 2011 — Luigi Marcuccio v Court of Justice of the European Union

(Case C-460/10 P) (1)

(Appeal - Non-contractual liabity - Representation of the appellant - Lawyer not authorised to act - Service of an appeal - Claim for damages - Court of Justice of the European Union - Rejection - Action for annulment - Harm allegedly suffered - Action for damages - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2011/C 232/18)

Language of the case: Italian

Parties

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

Other party to the proceedings: Court of Justice of the European Union (represented by: A. V. Placco, agent)

Re:

Appeal against the order of the General Court (Sixth Chamber) of 6 July 2010 in Case T-401/09 Marcuccio v Commission, in which that court dismissed, first, the action for annulment of the purported decisions of the Court of Justice dismissing the claim for compensation for the harm allegedly suffered as a result of an alleged unlawful act committed when the appeal was served on Mr Luigi Marcuccio in Case T-20/09 P and, second, a claim for damages.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Marcuccio is orderd to pay the costs of the appeal.

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(1)  OJ C 328, 4.12.2010.

Order of the Court (Seventh Chamber) of 15 April 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy)) — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma

(Case C-613/10) (1)

(Reference for a preliminary ruling - Manifest inadmissibility)

(2011/C 232/19)

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Danilo Debiasi

Defendant: Agenzia delle Entrate Ufficio di Parma

Re:

Reference for a preliminary ruling — Commissione tributaria provinciale di Parma — Interpretation of Art. 13, section A, of Directive 77/388/EEC: Sixth Council Directive 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) — Deduction of input tax — Public or private health establishments engaged in an exempt activity — National legislation excluding the deduction of tax referring to the purchase of goods or services used in the said exempt activities

Operative part of the order

The reference for a preliminary ruling made by the Commissione tributaria provinciale di Parma (Italy) by decision of 7 July 2010 is manifestly inadmissible.

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(1)  OJ C 80, 12.03.2011.

Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 18 April 2011 — Bericap Záródástechnikai Bt. v Plastinnova 2000 Kft.

(Case C-180/11)

(2011/C 232/20)

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Applicant: Bericap Záródástechnikai Bt.

Defendant: Plastinnova 2000 Kft.

Intervener: Szellemi Tulajdon Nemzeti Hivatala (Hungarian Intellectual Property Office) (formerly Magyar Szabadalmi Hivatal (Hungarian Patent Office))

Questions referred

1.

Is it consistent with European Union law if, during proceedings to amend a decision relating to an application for invalidation of a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court is not bound by the claims or statements with legal effect made by the parties, and the court is entitled to order of its own motion any evidence that it may deem necessary?

2.

Is it consistent with European Union law if, during proceedings to amend a decision relating to an application for invalidation of a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court, when making its decision, is not bound by the administrative decision made in relation to the application for invalidation, or by the findings established therein, nor, specifically, by the grounds for invalidation indicated during the administrative procedure, or by the declarations, assertions or evidence submitted during the administrative procedure?

3.

Is it consistent with European Union law if, during proceedings to amend a decision relating to a further application aimed at invalidating a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court excludes any evidence submitted with the further application, including evidence relating to the state of the art, to which reference was already made in connection with the previous application for invalidation of a utility model?

Appeal brought on 27 April 2011 by Fédération Internationale de Football Association (FIFA) against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-385/07: Fédération Internationale de Football Association (FIFA) v European Commission

(Case C-204/11 P)

(2011/C 232/21)

Language of the case: English

Parties

Appellant: Fédération internationale de football association (FIFA) (represented by: A. Barav, and D. Reymond, avocats)

Other parties to the proceedings: European Commission, Kingdom of Belgium, Federal Republic of Germany, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

—	uphold the judgment of the General Court delivered on 17 February 2011 in Case T-385/07 as regards admissibility;

—

set aside the judgment of the General Court delivered on 17 February 2011 in Case T-385/07 as regards the substance, in so far as it approves the inclusion of the ‘non-prime’ matches of the FIFA World Cup™ in the Belgian list of events ‘of major importance for society’ within the meaning of the Directive;

—	give final judgment pursuant to Article 61 of the Statute of the Court of Justice;

—	order the Commission to pay FIFA's costs arising from the proceedings at first instance and from the present appeal.

Pleas in law and main arguments

1.   Error of law, violation of Article 36 of the Statute of the Court of Justice, infringement of Article 3a (2) of Directive 89/552/EEC (1) as amended by Directive 97/36/EC (2) and of EU law, misapplication of Article 296 TFEU (exceeding the bounds of judicial review, contradictory reasoning, introducing reasons not given in the contested decision as regards the categorisation of the FIFA World Cup™ and drawing wrong legal conclusions therefrom, reversing the burden of proof)

The appellant contends that the General Court infringed EU law in giving reasons not featured in the Commission decision (3) for its finding that the Commission correctly characterised the FIFA World Cup™ as ‘by nature, a single event’ for the purposes of Directive 89/552/EEC as amended by Directive 97/36/EC, in giving contradictory and inconsistent reasons, in holding that no specific grounds should be supplied by Member States for including the entire FIFA World Cup™ in their lists of major events, and in reversing the burden of proof.

2.   Error of law, infringement of Article 3a (1) of Directive 89/552/EEC as amended by Directive 97/36/EC, misapplication of Article 296 TFEU, violation of Article 36 of the Statute of the Court of Justice (mischaracterisation of the FIFA World Cup™, overstepping the limits of judicial review, reliance on considerations not contained in the contested decision, erroneous assessment of facts relating to ‘non-prime’ matches and wrong legal conclusions drawn therefrom, finding the reasons given in the contested decision sufficient, failure to address arguments raised) The appellant argues that the General Court infringed EU law in holding that the Commission lawfully found and gave sufficient reasons for its finding that the entire FIFA World Cup™ is an event of major importance for Belgian society within the meaning of Directive 89/552/EEC as amended by Directive 97/36/EC. In particular, the General Court made an error of law and drew wrong legal conclusions from the facts in endorsing the Commission's unsupported findings that the entire FIFA World Cup™ has ‘a special general resonance in Belgium’, that it has been traditionally broadcast on free-to-air television and that it commanded large audiences.

3.   Error of law, infringement of the TFEU, violation of Article 3a (l) and (2) of Directive 89/552/EEC as amended by Directive 97/36/EC, misapplication of Article 296 TFEU, violation of Article 36 of the Statute of the Court of Justice (disregarding the scope of judicial review, holding that the Commission correctly found and gave sufficient reasons for its finding that the notified Belgian measures are compatible with EU law and that the restrictions entailed by them are proportionate, misconstruction of the scope of the right to information and of the public interest in wide access to televised events of major importance for society)

This plea is divided into two branches:

First branch: The appellant alleges that the General Court infringed EU law in holding that the Commission lawfully found that the notified Belgian measures were compatible with EU law, although the restrictions on the right of establishment were not addressed in the contested decision. The General Court further infringed EU law by holding that the restrictions on the right of establishment were proportionate and in holding that the Commission lawfully found, and that it gave sufficient reasons for its finding, that the restrictions on the freedom to provide services were proportionate.

Second branch: The appellant contends that the General Court infringed EU law in holding that the Commission lawfully found that the notified Belgian measures were compatible with EU law, although the restrictions on FIFA's property rights were not addressed in the contested decision. The General Court further infringed EU law by holding that the restrictions on FIFA's right to property were proportionate.

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(1)  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 L 298, p. 23

(2)  Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC 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 L 202, p. 60

(3)  Commission decision (2007/479/EC) of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a (l) of Council Directive 89/552/EEC 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 L 180, p. 24.

Appeal brought on 27 April 2011 by Fédération Internationale de Football Association (FIFA) against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-68/08: Fédération Internationale de Football Association (FIFA) v. European Commission

(Case C-205/11 P)

(2011/C 232/22)

Language of the case: English

Parties

Appellant: Fédération internationale de football association (FIFA) (represented by: A. Barav, and D. Reymond, avocats)

Otherparties to the proceedings: European Commission, Kingdom of Belgium, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

—	uphold the judgment of the General Court delivered on 17 February 201 1 in Case T-68/08 as regards admissibility;

—

set aside the judgment of the General Court delivered on 17 February 2011 in Case T-68/08 as regards the substance, in so far as it approves the inclusion of the ‘non-prime’ matches of the FIFA World Cup™ in the UK list of events ‘of major importance for society’ within the meaning of the Directive;

—	give final judgment pursuant to Article 61 of the Statute of the Court of Justice;

—	order the Commission to pay FIFA's costs arising from the proceedings at first instance and from the present appeal.

Pleas in law and main arguments

1.   Error of law, violation of Article 36 of the Statute of the Court of Justice, infringement of Article 3a (2) of Directive 89/552/EEC (1) as amended by Directive 97/36/EC (2) and of EU law, misapplication of Article 296 TFEU (exceeding the bounds of judicial review, contradictory reasoning, introducing reasons not given in the contested decision as regards the categorisation of the FIFA World Cup™ and drawing wrong legal conclusions therefrom, reversing the burden of proof)

The appellant contends that the General Court infringed EU law in giving reasons not featured in the Commission decision (3) for its finding that the Commission correctly characterised the FIFA World Cup™ as ‘by nature, a single event’ for the purposes of

Directive 89/552/EEC as amended by Directive 97/36/EC, in giving contradictory and inconsistent reasons, in holding that no specific grounds should be supplied by Member States for including the entire FIFA World Cup™ in their lists of major events, and in reversing the burden of proof.

2.   Error of law, infringement of Article 3a (1) of Directive 89/552/EEC as amended by Directive 97/36/EC, violation of Article 36 of the Statute of the Court of Justice, misapplication of Article 296 TFEU (the finding that the Commission correctly held that the list of the UK measures was drawn up ‘in a clear and transparent manner’)

The appellant submits that the General Court infringed EU law in holding that the Commission lawfully found that the UK events list was drawn up ‘in a clear and transparent manner’, as prescribed by Directive 89/552/EEC as amended by Directive 97/36/EC, regardless of the fact that the inclusion of the entire FIFA World Cup™ in that list was decided against unanimous contrary advice and that it was presented to the Commission, inter alia, on grounds that did not exist on the date on which the said list was drawn up.

3.   Error of law, infringement of Article 3a (1) of Directive 89/552/EEC as amended by Directive 97/36/EC, misapplication of Article 296 TFEU, violation of Article 36 of the Statute of the Court of Justice (mischaracterisation of the FIFA World Cup™, overstepping the limits of judicial review, relying on considerations not featured in the contested decision, erroneous assessment of facts relating to ‘nonprime’ matches and drawing wrong legal conclusions therefrom, finding the reasons given in the contested decision sufficient, failure to address arguments raised)

The appellant argues that the General Court infringed EU law in holding that the Commission lawfully found and gave sufficient reasons for its finding that the entire FIFA World Cup™ is an event of major importance for UK society within the meaning of Directive 89/552/EEC as amended by Directive 97/36/EC. In particular, the General Court made an error of law and drew wrong legal conclusions from the facts in endorsing the Commission's unsupported findings that the entire FIFA World Cup™ has ‘a special general resonance in the UK’, that it has been traditionally broadcast on free-to-air television and that it commanded large audiences.

4.   Error of law, infringement of EU law, violation of Article 3a (l) and (2) of Directive 89/552/EEC as amended by Directive 97/36/EC, misapplication of Article 296 TFEU, violation of Article 36 of the Statute of the Court of Justice (disregarding the scope of judicial review, holding that the Commission correctly found and gave sufficient reasons for its finding that the notified UK measures are compatible with EU law and that the restrictions entailed by them are proportionate, misconstruction of the scope of the right to information and of the public interest in wide access to televised events of major importance for society)

This plea is divided into three branches:

First branch: The appellant alleges that the General Court infringed EU law in holding that the Commission lawfully found that the notified UK measures were compatible with EU law, although the restrictions on the right of establishment were not addressed in the contested decision. The General Court further infringed EU law by holding that the restrictions on the right of establishment were proportionate and in holding that the Commission lawfully found, and that it gave sufficient reasons for its finding, that the restrictions on the freedom to provide services were proportionate.

Second branch: The appellant contends that the General Court infringed EU law in holding that the Commission lawfully found that the notified UK measures were compatible with EU law, although the restrictions on FIFA's property rights were not addressed in the contested decision. The General Court further infringed EU law by holding that the restrictions on FIFA's right to property were proportionate.

Third branch: The appellant maintains that the General Court infringed EU law in holding that the Commission lawfully found, and that it gave sufficient reasons for its finding, that the notified UK measures are compatible with the EU rules on competition, on the ground that the restrictions on the freedom to provide services were justified. The General Court further infringed EU law in holding that the Commission did not have to define the relevant market for assessing restrictions on competition and that the said measures involved no granting of special rights within the meaning of Article 106 (l) TFEU.

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(1)  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 L 298, p. 23

(2)  Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC 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 L 202, p. 60

(3)  Commission decision (2007/730/EC) of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a (1) of Council Directive 89/552/EEC 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 L 295, p. 12.

Reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 11 May 2011 — Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

(Case C-218/11)

(2011/C 232/23)

Language of the case: Hungarian

Referring court

Fővárosi Ítélőtábla

Parties to the main proceedings

Applicants: Észak-dunántúli Környezetvédelmi és Vízügyi Igazgatóság (Édukövízig), Hochtief Construction AG Magyarországi Fióktelepe

Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

Intervener: Vegyépszer Építő és Szerelő Zrt., MÁVÉPCELL Kft.

Questions referred

1.

Is the requirement that the minimum capacity levels stipulated in Article 44(2) of Directive 2004/18/EC (1) (hereinafter Directive) of the Council of the European Union (‘Council’) be in accordance with Article 47(1)(b) of that Directive to be interpreted in such a way that the contracting authority is entitled to link the minimum capacity levels to a single indicator in an accounting document (balance sheet) that it selects to monitor economic and financial standing?

2.

If the answer to the first question is yes, Budapest Court of Appeal further asks whether the consistency requirement laid down by Article 44(2) of the Directive is fulfilled by data selected for assessment of the minimum capacity levels (profit/loss according to the balance sheet), where such data has different content pursuant to the accounting legislation of individual Member States?

3.

Is it sufficient, for the purposes of correcting any discrepancies which doubtless exist between Member States, if the contracting authority ensures that there is an opportunity to employ external resources (Article 47(3)), in addition to the documents selected as proof of economic and financial standing, or must the contracting authority, in order to meet the requirement of consistency as regards all the documents selected by it, ensure that that capacity can be demonstrated in another manner (Article 47(5))?

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(1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 11 May 2011 — BrainProducts GmbH v Bio Semi V.O.F. and Others

(Case C-219/11)

(2011/C 232/24)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Claimant and appellant: BrainProducts GmbH

Defendants and respondents: Bio Semi V.O.F., Antonius Pieter Kuiper,. Robert Jan Gerard Honsbeek, Alexander Coenraad Metting van Rijn

Question referred

Does a product which is intended by the manufacturer to be applied for human beings for the purpose of investigation of a physiological process constitute a medical device, within the terms of the third indent of Article 1(2)(a) of Directive 93/42/EEC, (1) only in the case where it is intended for a medical purpose?

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(1)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1), last amended by Directive 2007/47/EC of the European Parliament and the Council of 5 September 2007 (OJ 2007 L 247, p. 21).

Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 11 May 2011 — Leyla Ecem Demirkan v Federal Republic of Germany

(Case C-221/11)

(2011/C 232/25)

Language of the case: German

Referring court

Oberverwaltungsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: Leyla Ecem Demirkan

Defendant: Federal Republic of Germany

Questions referred

1.

Does the passive freedom to provide services also fall within the scope of the concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey of 23 November 1970 (1) (Additional Protocol)?

2.

In the event that the first question is answered in the affirmative: does the protection of the passive freedom to provide services under the law on the Association Agreement, specifically pursuant to Article 41(1) of the Additional Protocol, also extend to Turkish nationals, who — like the claimant — do not wish to enter the Federal Republic of Germany in order to receive a specific service, but for the purposes of visiting relatives for a stay of up to three months and rely on the mere possibility of receiving services in the Federal territory?

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(1)  OJ 1972, L 293, p. 4 (no official translation published in English).

Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 16 May 2011 — TETS Haskovo AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Varna, pri Sentralno Upravlenie na Natsionalna Agentsia po Prihodite

(Case C-234/11)

(2011/C 232/26)

Language of the case: Bulgarian

Referring court

Administrativen Sad Varna

Parties to the main proceedings

Applicant: TETS Haskovo AD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Varna, pri Sentralno Upravlenie na Natsionalna Agentsia po Prihodite

Questions referred

1.

How is the expression ‘destruction of property’ for the purposes of Article 185(2) of Directive 2006/112 (1) to be interpreted, and are the motives for the destruction and/or the conditions under which it takes place relevant for the purposes of the adjustment to the deduction made upon acquisition of the property?

2.	Is the demolition of capital assets, duly proved, with the sole aim of creating new, more modern capital assets with the same purpose to be regarded as a modification of the factors used to determine the amount to be deducted within the meaning of Article 185(1) of Directive 2006/112?

3.	Is Article 185(2) of Directive 2006/112 to be interpreted as permitting the Member States to make adjustments in the case of the destruction of property where its acquisition remained totally or partially unpaid?

4.

Is Article 185(1) and (2) of Directive 2006/112 to be interpreted as precluding a national provision like Article 79(3) of the Law on VAT and Article 80(2)(1) of the Law on VAT, which provides for an adjustment of the deduction made in cases of destruction of property upon the acquisition of which a total payment of the basic amount and the tax calculated was made, and which makes the non-adjustment of a deduction dependent on a condition other than payment?

5.

Is Article 185(2) of Directive 2006/112 to be interpreted as ruling out the possibility of an adjustment to the deduction in the case of the demolition of existing buildings with the sole aim of creating new, more modern buildings in their place which fulfil the same purpose as the demolished buildings and [are used for transactions] which [give] entitlement to [deduction of input] VAT?

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(1)  OJ L 347, 11.12.2006, p. 1.

Action brought on 19 May 2011 — European Commission v Czech Republic

(Case C-241/11)

(2011/C 232/27)

Language of the case: Czech

Parties

Applicants: European Commission (represented by: Z. Malůšková, N.Yerrell and K.Ph. Wojcik, acting as Agents)

Defendant: Czech Republic

Form of order sought

—

declare that, by failing to adopt the laws and administrative provisions necessary to comply with Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (1), and by thereby failing to fulfil its obligations under Article 22(1) of that directive, the Czech Republic has failed to fulfil its obligations arising under the judgment in Case C-343/08 Commission v Czech Republic and thereby failed to fulfil its obligations under Article 260 of the Treaty on the Functioning of the European Union;

—

order the Czech Republic to pay to the Commission account ‘own resources of the European Union’ lump sum payments of EUR 5 644,80 for each day of delay in adopting the measures required by the judgment in Case C-343/08 Commission v Czech Republic, from the day of the delivery of that judgment on 14 January 2010 — until the date of delivery of judgment in this case, or — until the date upon which the Czech Republic adopts the measures required by the judgment in Case C-343/08 Commission v Czech Republic, should that date be sooner than the delivery of judgment in this case, and penalty payments of EUR 22 364,16 for each day of delay in adopting the measures required by the judgment in Case C-343/08 Commission v Czech Republic, from the date of delivery of judgment in this case until the date upon which the Czech Republic adopts the measures required by the judgment in Case C-343/08 Commission v Czech Republic; and

—	order the Czech Republic to pay the costs.

Pleas in law and main arguments

On 14 January 2010, the Court of Justice gave judgment in Case C-343/08 Commission v Czech Republic (2), in which it held that ‘by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision, the Czech Republic has failed to fulfil its obligations under Article 22(1) of that directive’.

The Czech Republic has to date not informed the Commission that it has taken the legal and administrative measures necessary to comply with Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41/EC so as to fulfil its obligations under Article 22(1) of that directive. The Commission therefore takes the view that the Czech Republic has not taken the measures required of it by the judgment in Case C-343/08. According to Article 260(2) TFEU, if the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court and at the same time specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. On the basis of the method laid down in the Communication from the Commission on the application of Article 228 of the EC Treaty (SEC/2005/1658), the Commission claims that the Court should impose the lump sum and penalty payments as set out in the form of order sought.

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(1)  OJ 2003 L 235, p. 10

(2)  Not yet published in the ECR

Reference for a preliminary ruling from the Аdministrativen sad Sofia-grad (Bulgaria) lodged on 19 May 2011 — Hristo Byankov v Glaven Sekretar na Ministerstvo na vatreshnite raboti (MVR)

(Case C-249/11)

(2011/C 232/28)

Language of the case: Bulgarian

Referring court

Аdministrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Hristo Byankov

Defendant: Glaven Sekretar na Ministerstvo na vatreshnite raboti (MVR)

Questions referred

1.

In the light of the facts of the main proceedings, does the principle of sincere cooperation under Article 4(3) of the Treaty on European Union in conjunction with Articles 20 and 21 of the Treaty on the Functioning of the European Union require that a national provision of a Member State such as that at issue in the main proceedings — under which a final administrative act may be annulled in order to put an end to an infringement of a fundamental right which has been established by a decision of the European Court of Human Rights, which right is also recognised in European Union law and concerns the freedom of movement enjoyed by nationals of the Member States — must also be applied with reference to the interpretation adopted by decision of the Court of Justice of the European Union of provisions of EU law which are relevant to the restrictions on the exercise of the aforementioned right, where the administrative act must be annulled in order to put an end to the infringement?

2.

Does it follow from Article 31(1) and (3) of Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC that, where a Member State has provided in its national law for a procedure for examining an administrative act which limits the right under Article 4(1) of the Directive, the competent administrative authority is required, at the request of the addressee of the administrative act, to examine that measure and to assess its legality with reference also to the case-law of the Court of Justice of the European Union on the interpretation of relevant provisions of EU law governing the conditions and limitations applicable to the exercise of that right, so as to ensure that the limitation imposed on the right is not disproportionate at the time when the review decision is adopted, where the administrative act imposing the limitation is already final at that time?

3.

Do the provisions of the second sentence of Article 52(1) of the Charter of Fundamental Rights of the European Union and Article 27(1) of Directive 2004/38 permit the application of a national provision which provides for the imposition of a limitation on the freedom of movement, within the European Union, of a national of a Member State of the European Union, solely on account of the existence of an unsecured liability in excess of a certain amount laid down by law that is owed to a private individual (a commercial company), in the context of pending enforcement proceedings for the recovery of the claim, and without regard to the possibility, provided for in EU law, of the claim being recovered by an authority of another Member State?

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(1)  OJ 2004 L 158, p. 77.

Reference for a preliminary ruling from the Supreme Court of the Republic of Hungary (Hungary) lodged on 25 May 2011 — Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége v Shomodi Oskar

(Case C-254/11)

(2011/C 232/29)

Language of the case: Hungarian

Referring court

The Supreme Court of the Republic of Hungary

Parties to the main proceedings

Applicant: Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége

Defendant: Shomodi Oskar

Questions referred

1.

With particular regard to Article 2(a) and Article 3(3) of Regulation (EC) No 1931/2006 (1) of the European Parliament and of the Council of 20 December 2006 (‘Local Border Traffic Regulation’), is the provision in Article 5 of that Regulation, which permits an uninterrupted stay not exceeding three months, to be interpreted in such a way that the Regulation allows multiple exits and entries, and an uninterrupted stay not exceeding three months on the basis of bilateral agreements between Member States and third countries under Article 13 in such a way that a border resident in possession of a local border traffic certificate may interrupt the uninterrupted stay prior to the expiry of the three-month period available for the stay, and then be entitled to a further uninterrupted stay of three months once he has crossed the border again?

2.	In the event that the answer to the first question is yes, may an exit and entry occurring on the same day or on consecutive days be regarded as an interruption of an uninterrupted stay under Article 5 of the Local Border Traffic Regulation?

3.

In the event that the answer to the first question is yes, but the answer to the second question is no, what time interval or other examination criterion needs to be taken into consideration to establish an interruption of an uninterrupted stay, under Article 5 of the Local Border Traffic Regulation?

4.

In the event that the answer to the first question is no, might the provision of Article 5 of the Local Border Traffic Regulation which permits an uninterrupted stay not exceeding three months be interpreted in such a way that the time elapsing over multiple exits and entries must be counted together, and as meaning that, in view of Article 20(1) of the Convention implementing the Schengen Agreement of 4 June 1985 (Schengen Implementing Convention, OJ 2000 L 239, p. 19; ‘SIC’), or other rules relating to Schengen law, if the total number of days exceeds 93 days (three months), the local border traffic permit does not provide entitlement to any further stay within six months of the date of first entry?

5.	In the event that the answer to the fourth question is yes, must multiple exits and entries occurring on the same day, or a single exit and entry on the same day, also be taken into account for the total and, if so, using what counting method?

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(1)  Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention (OJ 2006 L 405, p. 1).

Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 26 May 2011 — Kremikovtsi AD v Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma (Minister for the Economy, Energy and Tourism and the Deputy Minister for the Economy, Energy and Tourism)

(Case C-262/11)

(2011/C 232/30)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Kremikovtsi AD

Defendant: Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma (Minister for the Economy, Energy and Tourism and the Deputy Minister for the Economy, Energy and Tourism)

Questions referred

1.

Do the provisions of the Europe Agreement and particularly of the EU-Bulgaria Association Council decisions apply to State aid that was granted prior to the accession of the Republic of Bulgaria to the European Union pursuant to the provisions of the Europe Agreement and, in particular, pursuant to Article 9(4) of Protocol 2 where an assessment of the incompatibility of State aid granted in that way takes place after the date of accession of the Republic of Bulgaria to the European Union? If the answer to this question is in the affirmative the following interpretation is required: (a) Is the second paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that only the European Commission may establish whether the restructuring programme and the plans have been fully implemented in accordance with Article 2 of the Additional Protocol and are in compliance with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the answer to this question is in the negative the following interpretation is required: (b) Is the third paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that the competent national authority of the Republic of Bulgaria has the right to adopt a decision on the recovery of State aid that does not comply with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the Court of Justice should answer this question in the negative an interpretation of the following question is requested:

2.

Is the provision in paragraph 1 of the part of Annex V to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania to the European Union relating to competition rules to be interpreted as meaning that the State aid in question constitutes ‘new aid’ within the meaning of subparagraph 2 of paragraph 1 of that Annex? If so, are the provisions of Articles 107 and 108 TFEU (Articles 87 EC und 88 EC) on State aid and the provisions of Regulation No 659/1999 (1) to apply in such a case to such ‘new aid’? (a) If the answer to this question is in the negative the following question will have to be answered: Are the provisions in paragraph 1 of Annex V to the Act of Accession to be interpreted as meaning that the competent national authorities cannot take steps to recover State aid such as that in the main proceedings before the Commission has taken a decision by which the State aid at issue is declared incompatible with the common market? (b) If the answer given to the previous question is in the affirmative: Is the Commission Decision of 15 December 2009 produced to the Varhoven administrativen sad (Higher Administrative Court) to be considered a negative decision on unlawful aid within the meaning of Article 14 of Regulation No 659/1999?

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

Action brought on 31 May 2011 — European Commission v Czech Republic

(Case C-269/11)

(2011/C 232/31)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

Form of order sought

—

declare that, by permitting travel agencies, pursuant to Paragraph 89 of Law No 235/2004 Coll. on Value Added Tax, to apply the special scheme for travel agents to the provision of travel services to persons other than travellers, the Czech Republic has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

—	order the Czech Republic to pay the costs.

Pleas in law and main arguments

In the Czech Republic the special scheme of VAT for travel agents introduced by Articles 306 to 310 of Council Directive 2006/112/EC is applied not only to supplies provided by travel agents to travellers but also to supplies provided to persons other than travellers. Pursuant to Paragraph 89 of Law No 235/2004 Coll. on Value Added Tax, the special scheme is also applied in the Czech Republic where a travel service is provided to a legal person which sells that service on to other travel agents. In the opinion of the Commission, that is contrary to the provisions of Articles 306 to 310 of Council Directive 2006/112/EC, which require the special scheme for travel agents to be used only in cases where a travel service is supplied to a traveller. The wording of Articles 306 to 310 of Council Directive 2006/112/EC, and the objective which those provisions pursue, support the position of the Commission.

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 31 May 2011 — Techniko Epimelitrio Elladas (TEE), Syllogos Ellinon Diplomatouchon Aeronafpigon Mechanikon (HEAS), Alexandros N. Tsiapas and Others, Panellinios Syllogos Aerolimenikon Ypiresias Politikis Aeroporias and Other v Ipourgos Esoterikon, Dimosias Dioikisis kai Apokentrosis, Ipourgos Metaforon kai Epikoinonion, Ipourgos Economias kai Economikon

(Case C-271/11)

(2011/C 232/32)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Techniko Epimelitrio Elladas (Hellenic Technical Chamber, TEE), Syllogos Ellinon Diplomatouchon Aeronafpigon Mechanikon (Hellenic Society of Aeronautical Engineers, HEAS), Alexandros N. Tsiapas and Others, Panellinios Syllogos Aerolimenikon Ypiresias Politikis Aeroporias (Civil Aviation Authority National Airports Association) and Others

Defendants: Ipourgos Esoterikon, Dimosias Dioikisis kai Apokentrosis, Ipourgos Metaforon kai Epikoinonion, Ipourgos Economias kai Economikon (Minister for the Interior, Public Administration and Decentralisation; Minister for Transport and Communications; Minister for Economic Affairs and Finance)

Questions referred

(a)

Within the meaning of Article 2 of Regulation (EC) No 2042/2003, in conjunction with provision M.B.902(b)(1) in Subpart I of Section B of Annex I to the said regulation, and in light of the requirements of provision AMC M.B.102(c)(1) (subparagraphs 1.1–1.4, 1.6 and 1.7) in Subpart A of Section B of Annex 1 to EASA Decision No 2003/19/RM of 28 November 2003 on acceptable means of compliance with the above Regulation (EC) No 2042/2003, does the national legislature have the discretion, when enacting additional measures for the implementation of the said regulation, to divide the job of aircraft review, in order to establish compliance with current airworthiness requirements, between several categories/specialisms of inspectors, each of whom is only required to inspect one particular aspect of the aircraft’s airworthiness? More importantly, is a national regulation, such as the critical regulation at issue, which makes provision for Airworthiness and Avionics Inspectors, Flight Operations Inspectors, Cabin Safety Inspectors and Licensing Inspectors, compatible with the above Regulation (EC) No 2042/2003?

(b)

If the answer to the previous question is in the affirmative, does provision M.B.902(b)(1) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 mean that anyone to whom aircraft airworthiness review duties are assigned in respect of one particular aspect only must have five years’ experience in all aspects ensuring the continuing airworthiness of the aircraft or does it suffice if they have five years’ experience in the particular duties assigned to them and their particular specialism?

(c)

If the answer to the above question is that five years’ experience in the particular duties assigned to the review staff suffices, does a national regulation, such as the critical regulation at issue, which stipulates that Airworthiness and Avionics Inspectors responsible for supervising and controlling aircraft, approved maintenance organisations and air travel in accordance with the rules set out in the ICAO manual doc 9760 must have at least five years’ previous experience in an aircraft maintenance organisation and must have worked on aircraft maintenance, satisfy the requirements of the aforementioned provision M.B.902(b)(1) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 requiring review staff to have ‘at least five years experience in continuing airworthiness’?

(d)

If the answer to the previous question is in the affirmative, is a national regulation, such as the critical regulation at issue, which equates holders of aircraft maintenance licences in accordance with Part-66 (Annex III) of the said regulation with holders of an aeronautical degree, by providing that both these categories of persons must have experience in an aircraft maintenance organisation in order to obtain accreditation as Airworthiness and Avionics Inspectors, compatible with Regulation (EC) No 2042/2003?

(e)

In light of the requirements of provision AMC M.B.102(c)(1), subparagraphs 1.4 and 1.5, in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003 on acceptable means of compliance with the above Regulation (EC) No 2042/2003, does five years’ experience in continuing airworthiness, in accordance with provision M.B.902(b)(1) in Subpart I of Section B of Annex I to the said Regulation (EC) No 2042/2003, mean practical experience which may have been acquired during the course of studies leading to academic qualification or only experience acquired under actual working conditions, independently of studies and once they have been completed and the qualification obtained?

(f)	Within the meaning of the above provision of Regulation (EC) No 2042/2003, does five years’ experience in continuing airworthiness also mean experience which may have been acquired by performing airworthiness reviews in the past, even before the said regulation entered into force?

(g)

Within the meaning of provision M.B.902(b)(2) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 and for the purpose of initial selection as an inspector, must the holder of an aircraft maintenance licence in accordance with Part-66 (Annex III to the said Regulation (EC) No 2042/2003) undergo additional education in aspects of aircraft airworthiness prior to selection or does it suffice if that person is provided with such education after their initial selection and before they assume the duties of inspector?

(h)

Within the meaning of provision M.B.902(b)(3) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003, which requires review staff to have ‘formal aeronautical maintenance training’, can a training system adopted by the national legislature be construed as constituting such training if: (a) it provides training after the initial selection of an inspector based on formal qualifications alone; (b) this training is not differentiated depending on the formal qualifications of the person initially selected as inspector and (c) the training system does not make provision either for a procedure and criteria for evaluating trainees or for final examination of trainees on completion of training, in order to establish their aptitude?

(i)

Does provision M.B.902(b)(4) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003, providing that airworthiness review staff should have ‘a position with appropriate responsibilities’, mean that the position is a qualification which a person must have in order to be accredited as an inspector, in the sense that they must have held a senior position in their previous employment? Or does the above provision of Regulation (EC) No 2042/2003 mean, in light of the requirements of provision AMC M.B.902(b)(3) in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003, that, having been initially selected as an inspector, the person must be given a position in the airworthiness review authority which allows him to engage the liability of that authority by signing on its behalf?

(j)

If the aforementioned provision M.B.902(b)(4) in Subpart I of Section B of Annex I to the Regulation has the second meaning set out above, can the requirement of the Regulation be construed, in light of that meaning, as being satisfied by a national regulation that makes provision for inspectors to be accredited following theoretical and practical training, at which point they can carry out aircraft airworthiness reviews and engage the liability of the competent authority by alone signing the review documents?

(k)

Furthermore, if the aforementioned provision M.B.902(b)(4) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 has the second meaning set out above, is a national provision, such as the critical regulation at issue, which provides that it is desirable for persons initially selected as Airworthiness and Avionics Inspectors to have previously been promoted to ‘senior positions of responsibility in an aircraft maintenance organisation’, compatible with it?

(l)

Within the meaning of Regulation (EC) No 2042/2003, which does not regulate the question of whether and under what conditions persons performing airworthiness review duties before it entered into force are entitled to continue to perform such duties following the entry into force of the said regulation, was the national legislature obliged to provide that persons who were performing the duties of inspector when the above regulation entered into force (or possibly before then) should automatically be reaccredited as inspectors, without first undergoing a selection and evaluation procedure? Or does the above Regulation (EC) No 2042/2003, the aim of which is to improve the safety of air transport, not to safeguard the professional rights of employees of the Member State’s authority responsible for airworthiness reviews, mean that the Member States are simply granted the discretion, in light also of the relevant requirements of provision AMC M.B.902(b)(4) in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003, to continue, if they deem appropriate, to employ as airworthiness inspectors persons who were carrying out airworthiness reviews before the aforementioned regulation entered into force, even if those persons do not have the qualifications required under the said regulation?

(m)

If it is found that, within the meaning of Regulation (EC) No 2042/2003, the Member States are obliged automatically to reaccredit persons who were performing the duties of inspector before the said regulation entered into force, without applying a selection procedure, is a national provision, such as the critical provision at issue, which provides that, in order to be reaccredited as inspectors, those persons must have actually been performing the duties of inspector not on the date on which the above regulation entered into force, but on the later date, when the said provision of national law entered into force, compatible with that regulation?

Action brought on 9 June 2011 — European Commission v Hellenic Republic

(Case C-293/11)

(2011/C 232/33)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: D. Triantafillou and C. Soulay)

Defendant: Hellenic Republic

Form of order sought

—	declare that, by applying the special VAT scheme for travel agents in cases where the travel services have been sold to a person other than the traveller, the Hellenic Republic has failed to fulfil its obligations under Articles 306 to 310 of Directive 2006/112/EC; (1)

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The scheme for travel agents applies only to services which are supplied directly to travellers, in accordance with the directive’s wording in most languages. Even the English version, which uses, at one point only, the term ‘customer’, would not make sense unless it related solely to travellers. The same conclusion results from a combined reading of all the relevant provisions (systemic argument). A historic interpretation also supports the same conclusion, since the VAT directive merely codified the Sixth Directive, without altering its content. So far as concerns a teleological interpretation, what is important is that double taxation of agents in certain Member States not be allowed (by the exclusion of deductions in the event of extended application of the scheme for travel agents). Any shortcoming of the directive cannot be corrected by individual States without its text being officially amended.

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(1)  OJ L 347, 11.12.2006.

Action brought on 10 June 2011 — Italian Republic v Council of the European Union

(Case C-295/11)

(2011/C 232/34)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Palmieri, Agent, and S. Fiorentino, Avvocato dello Stato)

Defendant: Council of the European Union

Form of order sought

—	Annul Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (2011/167/EU) (1);

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

Pleas in law and main arguments

In support of its action, the Italian Republic raises four pleas in law.

First, it submits that the enhanced cooperation procedure was authorised by the Council outside the limits provided for in the first subparagraph of Article 20(1) TEU, according to which such a procedure is to be allowed only within the framework of the European Union’s non-exclusive competences. The European Union has an exclusive competence to create ‘European rules’ which have Article 118 TFEU as their legal basis.

Second, it submits that the authorisation of enhanced cooperation in the present case is contrary to — or, in any event, not compatible with — the objectives in view of which such cooperation is provided for by the Treaties. In so far as that authorisation is contrary to, if not the letter, at least the spirit of Article 118 TFEU, it infringes Article 326(1) TFEU, in that the latter requires enhanced cooperation to comply with the Treaties and with EU law.

Third, the Italian Republic submits that the authorisation decision was adopted without an appropriate inquiry with regard to the last resort requirement and without an adequate statement of reasons on that point.

Lastly, according to the Italian Republic, the authorisation decision infringes Article 326 TFEU in that it adversely affects the internal market, introducing a barrier to trade between Member States and discrimination between undertakings, causing distortion of competition. Furthermore, it does not help to reinforce the EU’s integration process, and is thus contrary to the second subparagraph of Article 20(1) TEU.

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(1)  OJ 2011 L 76, p. 53.

Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 June 2011 — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

(Case C-298/11)

(2011/C 232/35)

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Applicant: Dobrudzhanska petrolna kompania AD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’– gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

Questions referred

1.

Is Article 80(1)(a) and (b) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that, where there are supplies between connected persons, in so far as the consideration is lower than the open market value, the taxable amount is the open market value of the transaction only if the supplier or the recipient does not qualify for the right to deduct in full the input tax chargeable on the purchase or production of the goods supplied?

2.

Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the right to deduct in full the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2) or 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

3.

Is Article 80(1)(a) and (b) of Council Directive 2006/112 to be interpreted as meaning that, if the recipient has exercised the right to deduct in full the input tax on goods and services which are the subject of subsequent supplies between connected persons with a lower value than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

4.	Does Article 80(1)(a) and (b) of Directive 2006/112 constitute an exhaustive list of cases representing the circumstances in which a Member State is permitted to take measures whereby the taxable amount in respect of supplies is to be the open market value of the transaction?

5.	Is a provision of national law such as Article 27(3)(1) of the Zakon za danak varhu dobavenata stoynost (Law on VAT) permissible in cases other than those listed in Article 80(1)(a), (b) and (c) of Directive 2006/112?

6.	In a case such as the present, does Article 80(1)(a) and (b) of Directive 2006/112 have direct effect, and may the domestic court apply it directly?

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(1)  OJ 2006 L 347, p. 1;

Order of the President of the Court of 20 May 2011 (reference for a preliminary ruling from the Oberlandesgericht Innsbruck — Austria) — Pensionsversicherungsanstalt v Andrea Schwab

(Case C-547/09) (1)

(2011/C 232/36)

Language of the case: German

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

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(1)  OJ C 100, 17.4.2010.

Order of the President of the Court of 17 May 2011 — European Commission v Republic of Poland

(Case C-341/10) (1)

(2011/C 232/37)

Language of the case: Polish

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

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(1)  OJ C 260, 25.9.2010.

Order of the President of the Court of 20 May 2011 (reference for a preliminary ruling from the Tribunal Judicial de Vieira do Minho — Portugal) — Manuel Afonso Esteves v Axa Seguros Portugal SA

(Case C-437/10) (1)

(2011/C 232/38)

Language of the case: Portuguese

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

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(1)  OJ C 317, 20.11.2010.

Order of the President of the Court of 7 June 2011 (references for a preliminary ruling from the Tribunal de première instance, Namur — Belgium) — Rémi Paquot (C-622/10), Adrien Daxhelet (Case C-623/10) v État Belge — SPF Finances

(Joined Cases C-622/10 and 623/10) (1)

(2011/C 232/39)

Language of the case: French

The President of the Court has ordered that the cases be removed from the register.

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(1)  OJ C 80, 12.3.2011.

Order of the President of the Court of 17 May 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Minister van Financiën v G. in ‘t Veld

(Case C-110/11) (1)

(2011/C 232/40)

Language of the case: Dutch

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

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(1)  OJ C 160, 28.5.2011.

Judgment of the General Court of 28 June 2011 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti)

(Case T-471/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ‘Buonfatti’ - Earlier Benelux word mark Bonfait - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 2007/2009)

(2011/C 232/41)

Language of the case: German

Parties

Applicant: Dr. Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bonfait BV (Denekamp, Netherlands)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 2 October 2009 (Case R 340/2007-4) relating to opposition proceedings between Bonfait BV and Dr. August Oetker Nahrungsmittel KG.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 October 2009 (Case R 340/2007-4).

2.	Orders OHIM to bear its own costs and to pay those incurred by Dr. Oetker Nahrungsmittel KG.

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(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-475/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/42)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 500/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 500/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

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(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-476/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/43)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 1006/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the order

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 1006/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

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(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-477/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/44)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 1008/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 1008/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-478/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/45)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 1009/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 1009/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER Garden)

(Case T-479/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER Garden - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/46)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 1044/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 1044/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICOCENTER)

(Case T-480/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICOCENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/47)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1045/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1045/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (maxi BRICO CENTER)

(Case T-481/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark maxi BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/48)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1046/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1046/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER Città)

(Case T-482/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER Città - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/49)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1047/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1047/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (Affiliato BRICO CENTER)

(Case T-483/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Affiliato BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

(2011/C 232/50)

Language of the case: Italian

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1048/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1048/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2.	Dismisses the remainder of the action;

3.	Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

---

(1)  OJ C 24, 30.1.2010.

Judgment of the General Court of 28 June 2011 — ReValue Immobilienberatung v OHIM (ReValue)

(Case T-487/09) (1)

(Community trade mark - Application for the Community figurative mark ReValue - Application refused in part - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Obligation to state the reasons on which the decision is based - Article 75 of Regulation No 207/2009)

(2011/C 232/51)

Language of the case: German

Parties

Applicant: ReValue Immobilienberatung GmbH (Berlin, Germany) (represented by: initially, S. Fischoeder and M. Schork and, subsequently, S. Fischoeder (lawyers))

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 October 2009 (Case R 531/2009-4) concerning an application for registration of the figurative sign ReValue as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders ReValue Immobilienberatung GmbH to pay the costs.

---

(1)  OJ C 37, 13.2.2010.

Order of the President of the General Court of 10 June 2011 — Eurallumina v Commission

(Case T-207/07 R)

(Application for interim measures - State aid - Decision declaring the aid incompatible with the common market and ordering its recovery - Application for suspension of operation - No urgency)

(2011/C 232/52)

Language of the case: English

Parties

Applicant: Eurallumina SpA (Portoscuso, Italy) (represented by: L. Martin Alegi and R. Denton, solicitors)

Defendant: European Commission (represented by: N. Khan and D. Grespan, Agents)

Re:

Application for suspension of operation of Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)) (OJ 2007 L 147, p. 29), in so far as it concerns the applicant.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

Order of the General Court of 15 June 2011 — Ax v Council

(Case T-259/10) (1)

(Action for annulment - European Union financial assistance to a Member State experiencing serious economic or financial disruption - Regulation establishing the conditions and procedures under which European Union financial assistance may be granted - Article 263, fourth paragraph, TFEU - No direct concern - Inadmissibility)

(2011/C 232/53)

Language of the case: German

Parties

Applicant: Thomas Ax (Neckargemünd, Germany) (represented by: J. Baumann, lawyer)

Defendant: Council of the European Union (represented by: T. Middleton, M. Bauer and D. Gregorio Merino, Agents)

Interveners in support of the defendant: European Commission (represented by: B. Smulders, J.-P Keppenne, H. Krämer, Agents) and Republic of Latvia (represented by: M. Borkoveca and A. Nikolajeva, Agents)

Re:

Application for annulment of Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ 2010 L 118, p. 1).

Operative part of the order

1.	The action is dismissed.

2.	Mr Thomas Ax is ordered to bear his own costs and to pay those incurred by the Council of the European Union.

3.	The Republic of Latvia and the European Commission are ordered to bear their own costs.

---

(1)  OJ C 234, 28.8.2010.

Appeal brought on 30 March 2011 by Guido Strack against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-132/07 Strack v Commission

(Case T-199/11 P)

(2011/C 232/54)

Language of the case: German

Parties

Appellant: Guido Strack (Cologne, Germany) (represented by H. Tettenborn. Lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the General Court should:

—	set aside entirely the judgment of the European Union Civil Service Tribunal (Second Chamber) of 20 January 2011 in Case F-132/07 and uphold the claims of the applicant in those proceedings;

—	set aside the order of the European Union Civil Service Tribunal (Second Chamber) of 17 September 2009 in Case F-132/07 in so far as thereby the applicant’s claim for judgment in default was rejected;

—	set aside the decisions of the European Union Civil Service Tribunal, whereby Case F-132/07, initially assigned to the First Chamber, was subsequently assigned to the second Chamber;

—

annul the Commission’s decision of 23 July 2007 and the implied supplementary decisions of 9 August 2007 and 11 September 2007 and the decision of 9 November 2007, in so far as they reject the appellants’ requests of 9 April 2007, 11 May 2007 and 11 October 2007 for authorisation to publish documents (in the light of all legal considerations, in particular Articles 17, 17a, 19 and 24 of the Staff Regulations and any copyright and data protection provisions) and to report (ex-)Commissioners and Commission officials to the prosecuting authorities;

—	order the Commission to pay the appellant damages in the sum of at least EUR 10 000 for the non-material damage and damage to health caused to the appellant by the decisions which are to be annulled;

—	order the Commission to pay the entire costs;

—	the appellant additionally claims on the basis of the relevant settled case-law of the European Court of Human Rights compensation for the excessive length of proceedings of at least EUR 2 000, the exact figure to be decided at the discretion of the General Court.

Pleas in law and main arguments

In support of the appeal, the appellant relies on twenty grounds of appeal.

—

The appellant claims inter alia the following: lack of jurisdiction of the formation of the Tribunal which adopted the decisions under appeal, the unlawful rejection of the claim for judgment in default, the unlawful decision to grant to the Commission extension of time-limits, the rejection of the request to join the proceedings with other proceedings between the parties, the erroneous summary of the case in the preparatory report for the hearing and in the judgment under appeal, the bias of the Judge-Rapporteur, the breach of the Tribunal’s language rules and the discrimination against the appellant on the basis of language and the failure to translate procedural documents.

—

The appellant further claims that the Civil Service Tribunal committed errors in law and failed to state sufficient reasons for its judgment: inter alia, in respect of the interpretation and application of Articles 11, 17, 17a, 19, 25, and 90 et seq. of the Staff Regulations for European Union officials, Articles 6, 10 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Articles 11, 41, 47 and 52 of the Charter of Fundamental Rights of the European Union.

Action brought on 18 May 2011 — Austria v Commission

(Case T-251/11)

(2011/C 232/55)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul the Commission Decision C(2011) 1363 of 8 March 2011 on the Austrian State aid measure No C 24/2009 for energy-intensive businesses under the Green Electricity Act;

—	order the Commission to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging incorrect application of Article 107 (1) TFEU — no State aid: In the applicant’s opinion, Section 22c of the Austrian Green Electricity Act (BGBL. I No 114/2008) (ÖSG) limiting costs for energy-intensive businesses is not State Aid for the reason that no use of ‘State resources’ is involved.

2.

Second plea in law, alleging incorrect application of Article 107 (1) TFEU –absence of selectivity: In the applicant’s opinion, neither de iure selectivity nor de facto selectivity can be considered to exist. Even if that is assumed from the fact that Section 22c ÖSG leads to a departure from the reference price system, that departure appears justified by the rationale and internal structure of the system for the support of green electricity.

3.

Third plea in law, alleging incorrect application of Article 107 (1) TFEU — misuse of discretion: If the proposed measure were nonetheless to be deemed to be aid, the measure falls, in the applicant’s opinion, within the scope of the Community guidelines on State aid for environmental protection: There is moreover an analogy to be drawn between the notified compensatory payment under Section 22c ÖSG and the rules for the assessment of exemptions from energy taxes covered by Community legislation under Section 4 of the Guidelines; consequently, on the basis of that analogy, the compensatory arrangement ought to have been permitted. In addition to the application by analogy of the Guidelines, an analogy with Article 25 of the general block exemption regulation is also conceivable.

4.

Fourth plea in law: Different treatment by the European Commission of comparable situations in terms of competition: In the applicant’s opinion, the question arises why comparable situations in terms of competition — with reference to the similarities between the ÖSG and the German Renewable Energy Act, particularly in respect of the economic and competitive effects — have manifestly been treated differently. That appears incompatible with the general principle of equal treatment.

Appeal brought on 26 May 2011 by the European Commission against the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission

(Case T-268/11 P)

(2011/C 232/56)

Language of the case: German

Parties

Appellant: European Commission (represented by: J. Curral and B. Eggers, Agents

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought by the appellant

The appellant claims that the General Court should:

—	set aside the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission;

—	order both parties to bear their own costs of the proceedings at first instance and of this appeal.

Pleas in law and main arguments

In support of the appeal, the appellant relies essentially on three grounds of appeal.

1.

First ground of appeal: infringement of European Union law in the interpretation of Article 4 of Annex V to the Staff Regulations of officials of the European Union (the Staff Regulations): First, the Civil Service Tribunal infringed European Union law and settled case-law by interpreting the first paragraph of Article 4 of Annex V to the Staff Regulations to mean that it did not apply to the carrying over of the right to leave in cases of long term illness.

2.

Second ground of appeal: Infringement of European Union law in the legally erroneous determination of the scope and legal effect of the second paragraph of Article 1(e) of the Staff Regulations: Secondly, the Tribunal infringed European Union law and failed to state sufficient reasons in its erroneous interpretation of the scope of the second paragraph of Article 1(e) of the Staff Regulations as imposing a comprehensive duty on the institutions to guarantee as a minimum to officials, with reference to all working conditions relating to health protection, the standards in Directives adopted pursuant to Article 153 TFEU. The objective however of the second paragraph of Article 1(e), which was introduced as part of the 2004 reform of the Staff Regulations, is merely to remedy a lacuna in respect of technical provisions lacking in the Staff Regulations for the safeguarding of the health and safety of the staff in the premises of the institutions (for example. fire protection, hazardous substances, ventilation, ergonomics, etc.). The Staff Regulations accordingly now allow the application of the technical minimum standards in the respective Directives transposed into national law. However, the provision cannot and should not affect working conditions in respect of carrying over leave and compensation for unused leave which are determined exclusively by the bodies enacting the Staff Regulations. In so far as the Tribunal so decided, the decision was contrary not only to the current provisions of the Staff Regulations and the Tribunals’ case-law, but also was in breach of the principle of legal certainty.

3.

Third ground of appeal: Procedural infringement: Third, the Tribunal infringed procedural requirements, since of its own motion it interpreted the applicant’s first claim as an infringement of the second paragraph of Article 1(e) of the Staff Regulations and de facto nullified a provision of the Staff Regulations when there was no plea of illegality and the Council and the Parliament of the European Union had no opportunity to intervene.

Appeal brought on 25 May 2011 by  VE (*1) against the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-28/10,  VE (*1) v Commission

(Case T-274/11 P)

(2011/C 232/57)

Language of the case: French

Parties

Appellant: VE (*1) (represented by L. Vogel, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

—	Annul in its entirety the judgment of the Second Chamber of the Civil Service Tribunal of the European Union of 15 March 2011, notified by registered letter on 15 March 2011, dismissing the appellant’s action of 7 May 2010;

—	Order the defendant to pay the costs, pursuant to Article 87(2) of the Rules of Procedure, including costs necessarily incurred for the purposes of the proceedings, such as travel and accommodation costs, plus lawyers’ fees pursuant to Article 91(b) of the Rules of Procedure.

Pleas in law and main arguments

The appellant makes two pleas in support of the appeal.

1.

The first plea claims infringement of Article 4 of Annex VII to the Staff Regulations and distortion of the evidence produced before the Civil Service Tribunal. The appellant accuses the Civil Service Tribunal, first, of misinterpreting the documents numbered 22, 23, 24 and 25 on his file by deciding, at paragraph 31 of its judgment, that his presence in France between 1999 and 2000 could not be assimilated to a wish of the applicant to move the centre of his interests to his home country and, secondly, of making an incoherent assessment of the concept of habitual residence in paragraphs 29, 31 and 33 of the judgment under appeal.

2.

The second plea claims distortion of the evidence produced before the Civil Service Tribunal and an insufficient statement of reasons, in that the Civil Service Tribunal justifies the belated withdrawal of the benefit of the expatriation allowance ‘by a misunderstanding concerning the place where the applicant had obtained his baccalaureate’. The appellant accuses the Tribunal of not taking document 15 of his file into account, not replying to point 31 of his action and thus making clearly incorrect findings.

---

(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

Action brought on 27 May 2011 — TF1 v Commission

(Case T-275/11)

(2011/C 232/58)

Language of the case: French

Parties

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

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	declare its action admissible and well-founded;

—

by way of measures of organisation of procedure, in accordance with Article 64(3)(d) of the Rules of Procedure of the General Court, order the production of the documents which the Commission used in order to conclude that public financing was proportional and transparent in character, namely: the reports on the implementation of Articles 2 and 3 fo the decree concerning the years 2007 and 2008 and the draft report referred to in Article 2 for the year 2009, and of the confidential version of the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The action seeks the annulment of Commission Decision 2011/140/EU of 20 July 2010 declaring State aid in the form of an annual budgetary grant which the French authorities plan to implement in favour of France Télévisions compatible with the common market.

In support of its action, the applicant makes three pleas in law.

1.

The first plea claims misinterpretation of the link between the new taxes envisaged for the reform of public broadcasting and financing of France Télévisions. The applicant cites evidence of a binding link between, on the one hand, the tax on advertising messsages and the tax on electronic communications and, on the other hand, the budgetary grants paid to France Télévisions, both from a legal point of view, taking account of all the relevant national legislation, and from an economic point of view, taking account of the mechanism for determining the amount of the aid, of the rate of the tax and of its actual use.

2.

The second plea claims that there is a risk of overcompensation linked to the mechanism for financing France Télévisions. The applicant complains, first, that, not having access to several administrative documents, it was not in a position usefully to exercise its right of action and, secondly, that the Commission misinterpreted Article 106(2) TFEU by not taking account of the condition of economic efficiency in the provision of public service, in the context of its analysis of the legality of the contested measure.

3.

The third plea claims failure to take account of other rules of the TFEU and secondary law. The applicant argues, first, that the tax on electronic communications is contrary to Article 110 TFEU; second, that the disputed taxes constitute a restriction on the freedom to provide services and the freedom of establishment in that the accumulation of specific taxes on the broadcasting and telecommunications sectors largely limits the possibility for broadcasting and telecommunications operators to carry on their economic activities in France; and, third, that the disputed measure is contrary to Directive 2002/20 of 7 March 2002 on the authorisation of electronic communications networks and services in so far as it places a tax on telecoms operators who do not comply with the conditions laid down by the directive.

Action brought on 31 May 2011 — Carlotti v Parliament

(Case T-276/11)

(2011/C 232/59)

Language of the case: French

Parties

Applicant: Marie-Arlette Carlotti (Marseilles, France) (represented by: S. Orlandi, A. Coolen, J.-N Louis, É. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Parliament

Form of order sought

—	Declare the decision taken by the Bureau of the European Parliament on 1 April 2009 amending the additional voluntary pension scheme for Members of the European Parliament to be unlawful;

—	Annul the contested decision;

—	Order the European Parliament to pay the costs

Pleas in law and main arguments

The present action seeks annulment of the decision of 28 March 2011 refusing the applicant entitlement to her additional pension at the age of 60 (with effect from February 2012), taken on the basis of the decision of the European Parliament of 1 April 2009 amending the additional voluntary pension scheme for Members of the European Parliament.

In support of her action, the applicant relies on five pleas in law alleging:

—	infringement of acquired rights conferred by legal acts and of the principle of legal certainty;

—	infringement of the principles of equal treatment and of proportionality, in so far as the decision of 1 April 2009 and the contested decision raise the age at which the pension may be drawn by three years and do so without making any transitional provision;

—	infringement of Article 29 of the Rules Governing the Payment of Expenses and Allowances of Members of the European Parliament, which provides that the quaestors and the Secretary-General are to be responsible for the interpretation and strict enforcement of those rules;

—	manifest error of assessment vitiating the decision of the Bureau of the European Parliament of 1 April 2009 amending the rules serving as a basis to the contested decision in that it is based on an unfounded assessment of the financial situation of the pension fund;

—	breach of good faith in the performance of the contracts and nullity of the purely discretionary clauses.

Action brought on 30 May 2011 — T&L Sugars and Sidul Açúcares/Commission

(Case T-279/11)

(2011/C 232/60)

Language of the case: English

Parties

Applicants: T&L Sugars Ltd (London, United Kingdom) and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)

Defendant: European Commission

Form of order sought

—	Declare the present application for annulment under Article 263(4) TFUE and/or plea of illegality under Article 277 TFUE against Regulation 222/2011, Regulation 293/2011, Regulation 302/2001 and Regulation 393/2011 admissible and well founded;

—	Annulment of Regulation 222/2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2010/2011;

—	Annulment of Regulation 293/2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy;

—	Annulment of Regulation 302/2001 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year; and

—	Annulment of Regulation 393/2011 fixing the allocation coefficient for the issuing of import licences applied for from 1 to 7 April 2011 for sugar products under certain tariff quotas and suspending submission of applications for such licences;

—	In the alternative, declare the plea of illegality against Articles 186(a) and 187 of Regulation 1234/2007 admissible and well founded and declare those provisions illegal, as well as annul the contested regulations, which are directly or indirectly based on those provisions;

—

Condemn the EU as represented by the Commission to repair any damage suffered by the Applicants as a result of the Commission’s breach of its legal obligations and to set the amount of this compensation for the damage suffered by the Applicants during the period 1 October 2009 to 31 March 2011 at 35,485,746 EUR plus any ongoing losses suffered by the Applicants after that date or any other amount reflecting the damage suffered or to be suffered by the Applicants as further established by them in the course of this procedure especially to take due account of future damage;

—	Order an interest at the rate set at the time by the European Central bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by your Court, be paid on the amount payable as from the date of your Court’s judgement until actual payment;

—	Order the Commission to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging a violation of Regulation No 1234/2007 (1) and absence of adequate legal basis. In violation of Regulation No 1234/2007, the contested Regulation No 222/2011 effectively increases the production quotas granted to domestic producers. According to the applicants, the commission has no such power and is explicitly mandated to reduce production quotas. Yet to achieve an equivalent result, and not withstanding the Commission’s legal obligation to impose a surplus levy at a dissuasive level, Regulation No 222/2011 illegally sets the surplus levy on out-of-quota sugar at 0 EUR. Moreover in seeking to correct market disturbances caused by a shortfall of imports, both Regulation No 222/2011 and Regulation No 302/2011 ignore the priority legally granted under Regulation No 1234/2007 to import measures and full-time refiners.

2.	Second plea in law, alleging a violation of the non-discrimination principle. The applicants submit that despite the chemical identity of cane and beet based sugar, the contested regulations favour domestic producers to the detriment of importing refiners.

3.

Third plea in law, alleging a violation of the principle of proportionality. The contested regulations are aimed at tackling a shortage on the EU sugar market caused by a deficit of imported raw cane sugar. However, instead of remedying the problem by allowing the necessary imports of raw cane sugar, they increased the possibilities of domestic sugar production. As a result they are manifestly inappropriate and disproportionate.

4.

Fourth plea in law, alleging an infringement of the principle of legitimate expectations. According to the applicants, the Commission gave repeated assurances that it will not increase the production quota and will maintain the balance between stakeholders. The contested regulations were however clearly designed to favour domestic production at the expense of importing refiners.

5.

Fifth plea in law, alleging a violation of the principles of diligence, care and good administration. The applicants submit that the Commission failed in the first instance to act at all, despite repeated warnings of market disturbances, then went on to adopt manifestly inappropriate measures to tackle those disturbances, and in doing so upset the balance established by the Council between the different market operators.

The applicants invoke the above grounds for annulment also against Regulation No 222/2011 and Regulation No 302/2011 as a plea of illegality on the basis of Article 277 TFUE. In the alternative, the applicants raise also a plea of illegality under Article 277 TFUE against Articles 186a and 187 of Regulation No 1234/2007, on which the contested regulations are based

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

Action brought on 7 June 2011 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METROINVEST)

(Case T-284/11)

(2011/C 232/61)

Language in which the application was lodged: English

Parties

Applicant: Metropolis Inmobiliarias y Restauraciones, SL (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

Form of order sought

—	Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1, and grant the Community trade mark application for the word mark ‘METROINVEST’;

—	Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘METROINVEST’, for services in class 36 — Community trade mark application No 7112113

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

Mark or sign cited in opposition: German trade mark registration No 30348717, of the figurative mark ‘METRO’, in blue and yellow, for a range of goods and services in classes 1 to 45; Community trade mark application No 779116, of the figurative mark ‘METRO’, in yellow, for a range of goods and services in classes 1 to 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial and the prohibition of any discrimination and to Community law general principle of equal treatment. Infringement by the Board of Appeal of Article 8(1)(b) of Council Regulation No 207/2009, because of the lack of confusion risk between both conflicting trademarks.

Appeal brought on 6 June 2011 by Luigi Marcuccio against the order of the Civil Service Tribunal of 16 March 2011 in Case F-21/10 Marcuccio v Commission

(Case T-286/11 P)

(2011/C 232/62)

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the General Court should:

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

—	grant all the appellant’s claims in the proceedings at first instance;

—	order the Commission to reimburse the appellant in respect of the costs incurred by him in the proceedings at first instance under appeal;

or, in the alternative:

—	refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to above.

Pleas in law and main arguments

In support of the appeal, the appellant relies on two pleas in law.

1.

First plea, alleging absolute failure to state reasons concerning the claim for damages. — The following are alleged in this regard: failure to conduct a proper investigation, distortion of the facts, incorrect and unreasonable interpretation and application of the rules of law relating to the incurring of Aquilian liability on the part of the institutions of the European Union, of the concept of the duty to state reasons incumbent on all European Union institutions and the European Union judicature and of the concept of unlawful conduct on the part of a European Union institution.

2.

Second plea, alleging that the ruling of the court at first instance on costs was unlawful. — It is submitted in particular in this connection that an order that a party to proceedings reimburse costs to the Civil Service Tribunal pursuant to Article 94 of the Rules of Procedure of that court can be justified only on the basis of facts closely connected with the case in question and not on the basis of alleged conduct on the part of that party in other cases.

Action brought on 9 June 2011 — Portovesme v Commission

(Case T-291/11)

(2011/C 232/63)

Language of the case: Italian

Parties

Applicant: Portovesme Srl (Rome, Italy) (represented by: F. Ciulli, G. Dore, M. Liberati and A. Vinci, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

(1)

Pursuant to Article 267 TFEU, declare that the decision of the European Commission of 23 February 2011 relating to State aid No C 38/B/2004 (ex NN 58/2004) and No C 13/2006 (ex N 587/2005) implemented by Italy in favour of, inter alia, the applicant is unlawful and, accordingly, annul the decision in its entirety or in so far as is reasonable;

(2)

in the alternative and only in the unlikely event that the form of order sought in paragraph 1 is not granted, declare that the decision in the provision ordering that the aid be recovered is unlawful on the basis that it is contrary to the general principle of the protection of legitimate expectations;

(3)	order the defendant to pay the costs and that the right be reserved to bring a separate action for damages.

Pleas in law and main arguments

In support of the action, the applicant relies on 11 pleas in law.

1.

First plea in law, alleging infringement of the principle of legal certainty and the principle of the protection of legitimate expectations and infringement of Articles 4, 7, 10 and 14 of Regulation 659/1999. (1) Arguments in support of the plea: the decision was adopted almost six and a half years after the formal investigation procedure had been initiated.

2.

Second plea in law, alleging an incorrect and/or incomplete account of the legal and regulatory reference framework and consequent breach of the duty of due diligence and impartiality. Arguments in support of the plea: the decision declaring the aid incompatible is based on an incorrect and incomplete account of the matters of fact and law and consequently infringes of the duty of due diligence and impartiality which should have informed the Commission’s conduct.

3.

Third plea in law, alleging unequal treatment of Portovesme and Alcoa Trasformazioni, which was unreasonable. Arguments in support of the plea: in another decision relating to another company, the Commission found to be lawful the same scheme that is now declared incompatible with the common market as regards the applicant, thus giving rise to unreasonable unequal treatment as between the two companies.

4.

Fourth plea in law, relating to the existence of aid for the purpose of Article 107(1) TFEU. Arguments in support of the plea: through the preferential tariff granted to the applicant, the Italian State intervened in order to eliminate an unjustified situation which placed certain parties at a disadvantage and to reduce the excessive costs relating to electricity consumption due to the poor connections between the islands network and the national mainland network. Consequently, the requirements that the measure should confer an economic advantage and be selective were not satisfied. Moreover, the intervention of the Cassa Conguaglio [Equalisation Fund for the Electricity Sector] was purely incidental and the measure in question cannot therefore be classified as constituting State resources. Lastly, that measure could not have had any effect on trade between Member States because, in the zinc market, there are no intra-Community trade flows.

5.

Fifth plea in law, alleging that the assumptions on which the contested decision was based are incorrect. Arguments in support of the plea: the decision is based on the incorrect assumption that the aid would have created an imbalance on the energy market, whereas the market affected by the scheme is the market for the production of heavy metals.

6.	Sixth plea in law, relating to the classification of the aid as new aid or existing aid. Arguments in support of the plea: the preferential tariff in question should have been classified as existing aid, already found to be compatible with the common market by an earlier Commission decision.

7.	Seventh plea in law, relating to the compatibility of the aid with the common market. Arguments in support of the plea: the Commission failed to take account of the fact that the measure in question contributed to ensuring the development of sustainable employment in the area concerned.

8.

Eighth plea in law, alleging infringement of Articles 2, 3, 5 and 12 TEC and misapplication of the principles of equality and proportionality in the actions of the Community institutions. Arguments in support of the plea: the contested decision unlawfully rejected an aid scheme designed to eliminate a situation which had given rise to serious discrimination between companies producing heavy metals in Italy, on the one hand, and in Europe on the other.

9.	Ninth plea in law, alleging infringement of Article 174 TFEU and Annex D to Declaration No 30 on island regions. Arguments in support of the plea: the Commission failed to take account of the structural and market deficit arising as a result of the island regions.

10.

Tenth plea in law, alleging infringement of the rules governing procedure (Article 107(3)(a), (b) and (c) TFEU) and misapplication of the 1998 Guidelines on national regional aid and misapplication of the 2007-2013 Guidelines. Arguments in support of the plea: the Commission failed to comply with its obligation to carry out a correct assessment as to the compatibility of the aid.

11.

Eleventh plea in law, alleging infringement of the principle of the protection of legitimate expectations. Arguments in support of the plea: the Commission failed to take account both of the fact that the scheme from which the applicant benefited had already been declared compatible with the common market by an earlier decision and that no concerns were raised relation to that scheme for a period of 15 years following the decision at issue, factors which are therefore relevant with regard to the applicant’s legitimate expectations.

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

Action brought on 6 June 2011 — European Dynamics Luxembourg and Others/OHIM

(Case T-299/11)

(2011/C 232/64)

Language of the case: English

Parties

Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg), Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athènes, Greece) and European Dynamics Belgium SA (Brussels, Belgium) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

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

Form of order sought

—

Annul the OHIM’s decision to select the bid of the applicant filed in response to the open call for tenders No AO/021/10 for ‘External service provision for program and project management and technical consultancy in the field of information technologies (PMTC)’ as third contractor in the cascade mechanism, communicated to the applicant by letter dated 28 March 2011, and all the related decisions of OHIM including those to award the respective contract to the first and second cascade contractor;

—	Order the OHIM to pay the applicants’ damages suffered on account of the tendering procedures in question for an amount of 6 500 000 EUR;

—	In addition order the OHIM to pay the applicants’ damages suffered on account of the loss of opportunity and damage in its reputation and credibility for an amount 650 000 EUR;

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

Pleas in law and main arguments

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

1.

First plea in law, alleging a violation of Article 100(2) of Regulation No 1605/2002 (1). The applicant submits in particular a violation of the obligation to state reasons by refusing to provide sufficient justification or explanation to the applicant and objects to the non disclosure of the relative merits of the successful tenderers.

2.	Second plea in law, alleging a violation of the tender specifications by taking into account during the evaluation requirements not mentioned in the tender specifications.

3.	Third plea in law, alleging manifest errors of assessment and vague and unsubstantiated comments of the evaluation committee.

4.

Fourth plea in law, alleging a discriminatory treatment of tenderers, non compliance with exclusion criteria of the winning tenderers, a violation of Articles 93(1)(f); 94 and 96 of Regulation No 1605/2002 and of Article 133a and 134b of Regulation No 2342/2002 (2) as well as a violation of the principle of good administration. According to the applicant, the 2nd winning tenderer should have been excluded.

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(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, p. 1).

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

Action brought on 8 June 2011 — Italmobiliare v Commission

(Case T-305/11)

(2011/C 232/65)

Language of the case: Italian

Parties

Applicant: Italmobiliare SpA (Milan, Italy) (represented by: M. Siragusa, F. Moretti, L. Nascimbene, G. Rizza and M. Piergiovanni, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul, in whole or in part, the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on 6 pleas in law.

1.

First plea in law, alleging that the choice of addressee for the contested decision was incorrect, in breach of Article 18(1) of Regulation No 1/2003, in that the contested decision was addressed to Italmobiliare, a mere financial holding company — which, moreover, does not hold 100 % of the capital — instead of to Italcementi, which is the operating holding company in the group. The Commission thus acted in breach of the principle of audi alteram partem and the principle of the protection of legitimate expectations, selecting the applicant as the addressee of the contested decision when that company has to date remained completely outside the ambit of the investigation. The applicant pleads, lastly, breach of the principle of non-discrimination, since Italmobiliare is the only company to be involved in the procedure which is purely a financial holding company.

2.	Second plea in law, alleging infringement of Article 18(1) of Regulation No 1/2003 in so far as the Commission launched an investigation and adopted a binding measure when it had no power to do so.

3.

Third plea in law, alleging breach of the principle of proportionality. First, the means employed are not appropriate for achieving the aims pursued, in that the Commission availed itself of Article 18 of Regulation No 1/2003 in the context of an investigation which was not based on specific evidence and the subject of which had not been defined, in order to gather evidence which it should have obtained through an investigation of the sector, in accordance with Article 17 of Regulation No 1/2003. Moreover, the contested decision has not struck a proper balance between the interest in the investigation and the harm caused to the individual interested parties, in that the Commission unduly placed on the applicant disproportionate and unreasonable obligations relating to the tracing, collating and communication of information.

4.

Fourth plea in law, alleging breach of the duty under Article 296 TFEU to state reasons. The Commission failed to indicate in the measure the reasons on the basis of which it chose to use, by way of legal instrument, a decision under Article 18(3) of Regulation No 1/2003. The measure is also flawed for lack of reasons regarding the subject-matter and purpose of the request for information, or the need for the information requested for the purposes of the ongoing investigation. The breach of the duty to state reasons takes the form both of an infringement of essential procedural requirements for the purposes of Article 263 TFEU and of a breach of the applicant’s rights of defence.

5.

Fifth plea in law, alleging the unlawfulness of the contested decision for breach of the principle of audi alteram partem. The few days allowed by the Commission for submitting comments on the questionnaire appended to the Communication of 4 November was manifestly too short a time in which to exercise the right to be heard. Furthermore, the Communication of 4 November contains material which is somewhat different from that of the contested decision: the Commission thus prevented the applicant from defending itself in relation to the various points subsequently inserted in the final measure. Moreover, on a number of points, the Commission took no notice of the comments submitted. As a consequence, the purpose of the inter partes element of the procedure was thwarted, narrowing the applicant’s prospects for mounting a defence and damaging its position vis-à-vis the proceedings.

6.

Sixth plea in law, alleging breach of the principle of sound administration, as reflected by (i) the lack of coordination between the various questionnaires sent from time to time, which underwent re-numbering, re-formatting, methodological adaptation and supplementation; (ii) the remarkable length of the investigation, which extended beyond the limits of reasonableness; and (iii) the way in which the Commission managed the procedure.

Judgment of the Civil Service Tribunal (First Chamber) of 12 May 2011 — Missir Mamachi di Lusignano v European Commission

(Case F-50/09) (1)

(Civil service - Officials - Action for damages - Rule of correspondence between request, complaint and action regarding compensation - Inter partes nature of proceedings - Use in judicial proceedings of a confidential document classified as ‘EU restricted’ - Non-contractual liability of the institutions - Liability for fault - Causal link - Plurality of causes of damage - Third party fault - Strict liability - Duty to provide assistance - Obligation on an institution to ensure the protection of its staff - Murder of an official and his spouse by a third party - Loss of a chance of survival)

(2011/C 232/66)

Language of the case: Italian

Parties

Applicant: Livio Missir Mamachi di Lusignano (Kerkhove-Avelgem, Belgium) (represented by: F. Di Gianni, R. Antonini and N. Sibona, lawyers)

Defendant: European Commission (represented by: L. Pignataro, B. Eggers and D. Martin, Agents)

Re:

Application for an order that the defendant pay a sum by way of reparation for material and non-material damage suffered by the applicant by reason of the murder of his son, a former official.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the extracts from the 2006 document on security standards and criteria, sent by the European Commission to the Tribunal in the course of proceedings, to be returned immediately to the European Commission in an envelope marked “confidential” and ‘classified restricted EU’.

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

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(1)  OJ C 167, 18.7.2009, p. 27.

Judgment of the Civil Service Tribunal (First Chamber) of 7 June 2011 — Emmanuel Larue and Olivier Seigneur v European Central Bank

(Case F-84/09) (1)

(Staff case - Staff of the ECB - Pay - General adjustment to salaries - Disregard of the method of calculation)

(2011/C 232/67)

Language of the case: French

Parties

Applicant: Emmanuel Larue and Olivier Seigneur (Frankfurt-am-Main, Germany) (represented by L. Levi, lawyer)

Defendant: European Central Bank (represented by G. Nuvoli and N. Urban, Agents, and B. Wägenbaur, lawyer)

Re:

Application for annulment of pay-slips for January 2009.

Operative part of the judgment

The Tribunal:

1.	Annuls Mr Larue and Mr Seigneur’s pay-slips for the month of January 2009;

2.	Dismisses the remainder of the action;

3.	Orders the European Central Bank to bear all the costs.

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(1)  OJ C 312 of 19.12.09, p. 44.

Judgment of the Civil Service Tribunal (First Chamber) of 25 May 2011 — Luis Maria Bombín Bombín v European Commission

(Case F-22/10) (1)

(Civil service - Officials - Leave on personal grounds - Annual leave - Carry-over of annual leave - Official who has left the service - Financial compensation)

(2011/C 232/68)

Language of the case: Spanish

Parties

Applicant: Luis Maria Bombín Bombín (Rome, Italy) (represented by: R. Pardo Pedernera, lawyer)

Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, Agents)

Re:

Action seeking annulment of the decision of the Commission to refuse the applicant, on his retirement, compensation for more than 12 days of annual leave not taken

Operative part of the judgment

The Tribunal:

1.	Dismisses Mr Bombín Bombín's action;

2.	Orders Mr Bombín Bombín to pay all the costs.

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(1)  OJ C 148, 5.6.2010, p. 54.

Judgment of the Civil Service Tribunal (First Chamber) of 28 June 2011 — De Nicola v European Investment Bank

(Case F-49/10) (1)

(Staff case - Staff of the European Investment Bank - Sickness insurance - Refusal to reimburse medical expenses - Request for independent doctor to be designated - Reasonable period of time)

(2011/C 232/69)

Language of the case: Italian

Parties

Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, avocat)

Defendant: European Investment Bank (represented by T. Gilliams and F. Martin, Agents)

Re:

Application for annulment of the defendant’s decision not to reimburse sessions of laser therapy.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the parties to bear their own costs.

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(1)  OJ C 221 of 14.8.10, p. 61.

Judgment of the Civil Service Tribunal (First Chamber) of 28 June 2011 — AS v Commission

(Case F-55/10) (1)

(Staff case - Officials - Notice of vacancy - Rejection of application - Legal interest in bringing proceedings - Official on invalidity - Decision to reject candidature not inseparable from decision to appoint - Distinction drawn between officials in the same function group and holding the same grade and at a different stage in their career)

(2011/C 232/70)

Language of the case: French

Parties

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

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Application for annulment of the decision refusing to take into consideration the applicant’s application for a post as a library assistant and for an order for the Commission to pay her a sum as compensation for the material and non-material damage suffered.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of 30 September 2009 by which the European Commission rejected AS’s application;;

2.	Orders the European Commission to pay AS the sum of EUR 3 000;

3.	Dismisses the remainder of the action;

4.	Orders the European Commission to pay, in addition to its own costs, three quarters of AS’s costs;

5.	Orders AS to pay a quarter of her own costs.

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(1)  OJ C 246, 11.9.2010, p. 43.

Judgment of the Civil Service Tribunal (First Chamber) of 7 June 2011 — Mantzouratos v European Parliament

(Case F-64/10) (1)

(Staff case - Officials - Promotion - Promotion period 2009 - Decision not to promote - Admissibility of plea of illegality - Comparative examination of merits - Manifest error of assessment)

(2011/C 232/71)

Language of the case: French

Parties

Applicant: Andreas Mantzouratos (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament (represented by V. Montebello-Demongeot and K. Zejdová, Agents)

Re:

Application for annulment of the European Parliament’s decision not to promote the applicant to Grade AD 13 in the promotion period 2009 and also of the decisions to promote to that grade officials having fewer promotion points than the applicant.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the parties to bear their own costs.

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(1)  OJ C 274, 9.10.2010, p. 33.

Judgment of the Civil Service Tribunal (First Chamber) of 12 May 2011 — AQ v European Commission

(Case F-66/10) (1)

(Staff case - Officials - Appraisal report - Appraisal period 2009 - Appraiser’s grade lower than that of the holder of the post - Appraisal of performance in part of the reference period - Failure to fix objectives for the holder of the post)

(2011/C 232/72)

Language of the case: French

Parties

Applicant: AQ (Brussels, Belgium) (represented by: L. Massaux, lawyer)

Defendant: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, Agents)

Re:

Application for annulment of the appraisal report covering the period from 1 January to 31 December 2008, in that it classified the applicant in performance level III and awarded him two promotion points.

Operative part of the judgment

The Tribunal:

1.	Annuls the report appraising AQ in the appraisal and promotion period 2009 and also the decision awarding AQ two promotion points for the same period;

2.	Orders the European Commission to pay AQ the sum of EUR 2 000;

3.	Dismisses the remainder of the claims in the action;

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

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(1)  OJ C 288, 23.10.2010, p. 74.

Judgment of the Civil Service Tribunal (First Chamber) of 28 June 2011 — Mora Carrasco and Others v European Parliament

(Case F-128/10) (1)

(Civil service - Officials - Inter-institutional transfer in the course of the promotion period during which the official would have been promoted in his institution of origin - Competent institution to decide on the promotion of the transferred official)

(2011/C 232/73)

Language of the case: French

Parties

Applicant: Mora Carrasco and Others (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Parliament (represented by: O. Caisou-Rousseau and J.F. de Wachter, agents)

Re:

Action for annulment of the decisions not to promote the applicants in the 2009 promotion period

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the European Parliament to bear the costs of the applicants in addition to its own costs.

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(1)  OJ C 63, 26.2.2011, p. 35.

Order of the Civil Service Tribunal (First Chamber) of 25 May 2011 — Stefan Meierhofer v European Commission

(Case F-74/07 RENV) (1)

(Civil service - Recruitment - Open competition - Failure of a candidate in the oral test - Obligation to state reasons - Rules governing the work of the selection board)

(2011/C 232/74)

Language of the case: German

Parties

Applicant: Stefan Meierhofer (Munich, Germany) (represented by: H.-G. Schiessl, lawyer)

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Re:

Action for annulment of the decision of the selection board in competition EPSO AD/26/05 of 10 May 2007 not to include the applicant on the reserve list of that competition on the ground of his insufficient mark in the oral test.

Operative part of the order

1.	There is no need to adjudicate on Mr Meierhofer's action in so far as it disputes the insufficient statement of reasons for the decision of 19 June 2007.

2.	The remainder of Mr Meierhofer's action is dismissed, in part as manifestly unfounded, and in part as manifestly inadmissible.

3.

The European Commission shall bear two thirds of the costs incurred by the applicant in the first set of proceedings before the Tribunal and its own costs relating to the first set of proceedings before the Tribunal, the proceedings before the General Court of the European Union and the present proceedings.

4.	The applicant shall bear one-third of his own costs relating to the first set of proceedings before the Tribunal and all his own costs relating to the proceedings before the General Court of the European Union and the present proceedings.

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(1)  OJ C 223, 22.9.2007, p. 21.

Order of the Civil Service Tribunal (First Chamber) of 22 June 2011 — Lebedef v Commission

(Case F-33/10) (1)

(Staff case - Officials - Appraisal for the year 2005 - Career development report - General provisions implementing Article 43 of the Staff Regulations - Report drawn up following the judgment in Case F-36/07 - Manifest inadmissibility)

(2011/C 232/75)

Language of the case: French

Parties

Applicant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: J. Currall and G. Berscheid, Agents)

Re:

Application for annulment of the applicant’s career development report for the period from 1 January 2005 till 31 December 2005, as drawn up following its annulment by the Civil Service Tribunal in its judgment in Case F-36/07.

Operative part of the order

The Tribunal

1.	Dismisses the action as manifestly inadmissible;

2.	Orders Mr Lebedef to pay all the costs.

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(1)  OJ C 209, 31.7.2010, p. 53.

Order of the Civil Service Tribunal (First Chamber) of 30 June 2011 — Van Asbroek v European Commission

(Case F-88/10) (1)

(Civil service - Officials - Decision on classification in intermediate grade - Request for re-examination - Substantial new fact - None - Action manifestly inadmissible)

(2011/C 232/76)

Language of the case: French

Parties

Applicant: Van Asbroek (Dilbeek, Belgium) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: initially by G. Berscheid and D. Martin, Agents, and subsequently by J. Currall and G. Berscheid, Agents)

Re:

Action for annulment of the decision rejecting the applicant's request for partial annulment of the Commission's decision of 22 October 2008 regarding the introduction of a compensatory allowance in favour of officials who changed category before 1 May 2004, for reclassification, with retroactive effect from 1 May 2004, in grade D*4/8 and for reconstruction of his career to reflect the promotions, annual adjustments and advancements in step to which it had been subject since then.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Van Asbroek shall bear all the costs.

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(1)  OJ C 317, 20.11.2010, p. 50.

Order of the Civil Service Tribunal (First Chamber) of 29 June 2011 — Schuerewegen v Parliament

(Case F-125/10) (1)

(Staff case - Officials - Measure removing the applicant from his place of work - Withdrawal of his staff card - Withdrawal of his rights of access to the IT network - Prior complaint - Sent by electronic means - Administration actually aware of it - Out of time - Manifest inadmissibility)

(2011/C 232/77)

Language of the case: French

Parties

Applicant: Daniel Schuerewegen (Marienthal, Luxembourg) (represented by: P. Nelissen Grade and G. Leblanc, lawyers)

Defendant: Parliament (represented by: O. Caisou-Rousseau and E. Despotopoulou, Agents)

Re:

Application for annulment of the appointing authority’s decision by which the applicant was removed from his place of work and his staff card withdrawn, and also of the measures taken as a result of that decision and a claim for damages

Operative part of the order

The Tribunal

1.	Dismisses the action as manifestly inadmissible;.

2.	Orders Mr Schuerewegen to pay all the costs.

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(1)  OJ C 30 of 29/1/11, p. 68.

Order of the Civil Service Tribunal of 20 May 2011 — Florentiny v Parliament

(Case F-90/10) (1)

(2011/C 232/78)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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(1)  OJ C 55, 19.2.11, p. 36.

Order of the Civil Service Tribunal of 25 May 2011 — AL v Parliament

(Case F-93/10) (1)

(2011/C 232/79)

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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(1)  OJ C 328, 4.12.10, p. 61.

Order of the Civil Service Tribunal of 27 April 2011 — AR v Commission

(Case F-120/10) (1)

(2011/C 232/80)

Language of the case: French

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

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(1)  OJ C 72, 5.3.11, p. 35.