30.6.2012

Official Journal of the European Union

C 194/2

Judgment of the Court (Fourth Chamber) of 10 May 2012 — European Commission v Republic of Estonia

(Case C-39/10) (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for workers - Income tax - Allowance - Retirement pensions - Effect on small pensions - Discrimination between resident and non-resident taxpayers)

2012/C 194/02

Language of the case: Estonian

Parties

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

Defendant: Republic of Estonia (represented by: M. Linntam, acting as Agent)

Interveners in support of the defendant: Kingdom of Spain (represented by M. Muñoz Pérez and A. Rubio Gonzáles, acting as Agents), Portuguese Republic (represented by L. Inez Fernandes, acting as Agent), Kingdom of Sweden (represented by A. Falk, acting as Agent), United Kingdom of Great Britain and Northern Ireland (represented by S. Ossowski, acting as Agent), Federal Republic of Germany (represented by J. Möller, C. Blaschke and B. Klein, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 45 TFEU and Article 28 of the EEA Agreement — Income tax on retirement pensions — National legislation not providing for the granting of exemption from income tax to non-residents whose total income is so small that they would be exempted from income tax if they were resident taxpayers

Operative part of the judgment:

The Court:

Declares that, by excluding non-resident pensioners from benefiting from the allowances laid down by the Law on income tax (Tulumaksuseadus) of 15 December 1999, as amended by the Law of 26 November 2009, where, because of the modest amount of their pensions, they are not taxable in the Member State of residence under the tax legislation of that State, the Republic of Estonia has failed to fulfil its obligations under Article 45 TFEU and Article 28 of the Agreement on the European Economic Area of 2 May 1992;

2.	Orders the Republic of Estonia to pay the costs;

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

(1) OJ C 63, 13.3.2010.

30.6.2012

Official Journal of the European Union

C 194/2

Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10)

(Joined Cases C-357/10 to C-359/10) (1)

(Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC - Freedom of establishment - Freedom to provide services - Directive 2006/123/EC - Articles 15 and 16 - Concession relating to the assessment, verification and collection of taxes and other local authority revenue - National legislation - Minimum share capital - Obligation)

2012/C 194/03

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicants: Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10)

Defendants: Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10)

Intervener in support of the defendants: Agenzia Italiana per le Pubbliche Amministrazioni SpA (AIPA)

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia — Interpretation of Articles 15 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) and Articles 3, 10, 43, 49 and 81 EC — Commercial communications by the regulated professions — The award of services relating to the assessment, verification and collection of taxes and other local authority revenue — Minimum share capital required under national legislation

Operative part of the judgment

Articles 43 EC and 49 EC must be interpreted as precluding a provision such as that at issue in the main proceedings, under which:

—

economic operators, except companies in which all or a majority of the share capital is in public ownership, are required, if necessary, to increase their fully paid up capital to a minimum of EUR 10 million in order to be entitled to pursue the activities of assessment, verification and collection of taxes and other local authority revenue;

—	the award of those services to operators who fail to satisfy the minimum requirement of share capital is to be null and void, and

—	it is prohibited to obtain new contracts or participate in tender procedures for the operation of those services until the abovementioned requirement to adjust share capital has been met.

(1) OJ C 260, 25.9.2010

30.6.2012

Official Journal of the European Union

C 194/3

Judgment of the Court (Third Chamber) of 10 May 2012 — European Commission v Kingdom of the Netherlands

(Case C-368/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/18/EC - Procedures for the award of public works contracts, public supply contracts and public service contracts - Contract for the supply, installation and maintenance of dispensing machines for hot drinks, and the supply of tea, coffee and other ingredients - Article 23(6) and 23(8) - Technical specifications - Article 26 - Conditions for performance of the contract - Article 53(1) - Criteria for award of the contracts - Most economically advantageous tender - Products derived from organic agriculture and fair trade - Use of labels in the formulation of the technical specifications and the award criteria - Article 39(2) - Concept of ‘additional information’ - Article 2 - Principles for award of contracts - Principle of transparency - Articles 44(2) and 48 - Verification of the suitability and choice of participants - Minimum level of technical or professional abilities - Compliance with ‘criteria of sustainability of purchases and socially responsible business’)

2012/C 194/04

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands (represented by: C. Wissels and M. de Ree, acting as Agents)

Re:

Failure to fulfil obligations — Infringement of Article 2, Article 23(6) and (8), Article 44(2), Article 48(1) and (2) and Article 53(1) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Principles for the award of contracts — Technical specifications — Verification of the capacity and choice of operators, award of contracts — Technical or professional capacities — Criteria for the award of contracts — Supply, installation and maintenance of coffee machines

Operative part of the judgment

The Court:

On account of the fact that, in the tendering procedure for a public contract for the supply and management of coffee machines, which was the subject of a contract notice published in the Official Journal of the European Union on 16 August 2008, the province of North Holland:

—

established a technical specification incompatible with Article 23(6) of Directive 2004/18 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, as amended by Commission Regulation (EC) No 1422/2007 of 4 December 2007, by requiring that certain products to be supplied were to bear a specific eco-label, rather than using detailed specifications;

—

established award criteria incompatible with Article 53(1)(a) of Directive 2004/18 by providing that the fact that certain products to be supplied bore specific labels would give rise to the grant of a certain number of points in the choice of the most economically advantageous tender, without having listed the criteria underlying those labels and without having allowed proof that a product satisfies those underlying criteria by all appropriate means;

—

established a minimum level of technical ability not authorised by Articles 44(2) and 48 of Directive 2004/18 by requiring, on the basis of suitability requirements and minimum capacity levels stated in the specifications applicable in the context of that contract, that tenderers comply with the ‘criteria of sustainable purchasing and socially responsible business’ and state how they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production’, and

—

prescribed a clause contrary to the obligation of transparency provided for in Article 2 of Directive 2004/18 by requiring that tenderers comply with ‘the criteria of sustainable purchasing and socially responsible business’ and state how they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production’,

the Kingdom of the Netherlands has failed to fulfil its obligations under the aforementioned provisions.

2.	Dismisses the action as to the remainder;

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

(1) OJ C 328, 4.12.2010.

30.6.2012

Official Journal of the European Union

C 194/4

Judgment of the Court (First Chamber) of 10 May 2012 — Helena Rubinstein, L’Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan Inc.

(Case C-100/11 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(5) - Community word marks BOTOLIST and BOTOCYL - Community and national figurative and word marks BOTOX - Declaration of invalidity - Relative grounds for refusal - Damage to reputation)

2012/C 194/05

Language of the case: English

Parties

Appellants: Helena Rubinstein, L’Oréal SA (represented by: A. von Mühlendahl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), Allergan Inc. (represented by: F. Clark, Barrister)

Re:

Appeal brought against the judgment of the General Court (Third Chamber) of 16 December 2010 in Joined Cases T-345/08 and T-357/08 Rubinstein and l’Oréal v OHIM — Allergan (Botolist and Botocyl), by which the General Court dismissed an action for annulment brought by the proprietor of the Community word mark ‘BOTOLIST’ for goods classified in Class 3, against Decision R 863/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 28 May 2008, which set aside the decision of the Cancellation Division rejecting the application for a declaration of invalidity of that mark, submitted by the proprietor of the Community and national figurative and word marks ‘BOTOX’ for goods classified in Classes 5 and 16 and services classified in Class 42 — Interpretation and application of Art. 8(4) of Regulation (EC) No 40/94 (now Art. 8(4) of Regulation (EC) No 207/2009) — Relative grounds for refusal — Damage to reputation — Interpretation and application of Art. 73 of Regulation No 40/94 (now Art. 75 of Regulation No 207/2009) — Obligation to state reasons

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Helena Rubinstein SNC and L’Oréal SA to pay the costs.

(1) OJ C 145, 14.5.2011.

30.6.2012

Official Journal of the European Union

C 194/4

Judgment of the Court (Third Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11) v Directeur des résidents à l’étranger et des services généraux and Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka (C-340/11), Allianz Global Investors Kapitalanlagegesellschaft mbH, on behalf of DBI-Fonds APT no 737 (C-341/11), SICAV KBC Select Immo (C-342/11), SGSS Deutschland Kapitalanlagegesellschaft mbH (C-343/11), International Values Series of the DFA Investment Trust Co. (C-344/11), Continental Small Co. Series of the DFA Investment Trust Co. (C-345/11), SICAV GA Fund B (C-346/11), Generali Investments Deutschland Kapitalanlagegesellschaft mbH, on behalf of AMB Generali Aktien Euroland (C-347/11) v Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État

(Joined Cases C-338/11 to C-347/11) (1)

(Articles 63 TFEU and 65 TFEU - Undertakings for collective investments in transferable securities (UCITS) - Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and dividends paid to resident UCITS, not subject to such tax - Whether it is necessary, for the purpose of determining whether the national measure is in conformity with the free movement of capital, to take account of the situation of shareholders - No such need)

2012/C 194/06

Language of the case: French

Referring court

Tribunal administratif de Montreuil

Parties to the main proceedings

Applicants: Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11), Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka (C-340/11), Allianz Global Investors Kapitalanlagegesellschaft mbH, on behalf of DBI-Fonds APT no 737 (C-341/11), SICAV KBC Select Immo (C-342/11), SGSS Deutschland Kapitalanlagegesellschaft mbH (C-343/11), International Values Series of the DFA Investment Trust Co. (C-344/11), Continental Small Co. Series of the DFA Investment Trust Co. (C-345/11), SICAV GA Fund B (C-346/11), Generali Investments Deutschland Kapitalanlagegesellschaft mbH, on behalf of AMB Generali Aktien Euroland (C-347/11)

Defendants: Directeur des résidents à l’étranger et des services généraux, Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État

Re:

Reference for a preliminary ruling — Tribunal administratif de Montreuil — Interpretation of Articles 63 and 65 TFEU — Different tax treatment of non-resident undertakings for collective investments in transferable securities (UCITS), subject to withholding tax, and resident undertakings, not subject to such tax — Obstacle to the free movement of capital — Whether it is necessary, for the purpose of determining whether withholding tax is in conformity with that principle, also to take account of the situation of shareholders

Operative part of the judgment

Articles 63 TFEU and 65 TFEU must be interpreted as precluding the legislation of a Member State which provides for the taxation, by means of withholding tax, of nationally-sourced dividends when they are received by undertakings for collective investments in transferable securities resident in another State, whereas such dividends are exempt from tax when received by undertakings for collective investments in transferable securities resident in the Member State in question.

(1) OJ C 269, 10.9.2011.

30.6.2012

Official Journal of the European Union

C 194/5

Judgment of the Court (Sixth Chamber) of 10 May 2012 — European Commission v Kingdom of Belgium

(Case C-370/11) (1)

(Failure of a Member State to fulfil obligations - Articles 36 and 40 of the EEA Agreement - Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EEC)

2012/C 194/07

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, Agent)

Defendant: Kingdom of Belgium (represented by: J.-C. Halleux and M. Jacobs, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 36 and 40 of the Agreement on the European Economic Area — Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EC

Operative part of the judgment

The Court:

Declares that, by maintaining rules according to which the capital gains obtained on the repurchase of shares in collective investment undertakings, more than 40 % of the assets of which is invested in debt securities, and which are not authorised under Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), are not taxable where those undertakings are established in Belgium, whereas the capital gains obtained on the repurchase of shares in such undertakings established in Norway or Iceland are taxable, the Kingdom of Belgium failed to fulfil its obligations under Article 40 of the Agreement on the European Economic Area of 2 May 1992.

2.	Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 290, 1.10.2011.

30.6.2012

Official Journal of the European Union

C 194/5

Judgment of the Court (Second Chamber) of 26 April 2012 (Reference for a preliminary ruling from the High Court of Ireland) — Health Service Executive v SC, AC

(Case C-92/12) (1)

(Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility - Regulation (EC) No 2201/2003 - Child habitually resident in Ireland, where the child has been placed in care on many occasions - Child’s behaviour aggressive and placing herself at risk - Judgment ordering placement of the child in a secure care institution in England - Material scope of the regulation - Article 56 - Procedures for consultation and consent - Obligation to recognise or declare enforceable the decision to place the child in a secure care institution - Provisional measures - Urgent preliminary ruling procedure)

2012/C 194/08

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Health Service Executive

Defendants: SC, AC

In the presence of: Attorney General

Re:

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 56 of Council Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Material scope — Decision by an Irish court to place a child, habitually resident in Ireland, in secure care in a therapeutic and educational care institution in the United Kingdom — Procedures for consultation and consent to ensure the effective protection of the child — Requirement that the decision to place the child in secure care be recognised and/or declared enforceable prior to placement?

Operative part of the judgment

A judgment of a court of a Member State which orders the placement of child in a secure institution providing therapeutic and educational care situated in another Member State and which entails that, for her own protection, the child is deprived of her liberty for a specified period, falls within the material scope of Council Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

The consent referred to in Article 56(2) of Regulation No 2201/2003 must be given, prior to the making of the judgment on placement of a child, by a competent authority, governed by public law. The fact that the institution where the child is to be placed gives its consent is not sufficient. In circumstances such as those of the main proceedings, where a court of a Member State which made the judgment on placement is uncertain whether a consent was validly given in the requested Member State, because it was not possible to identify with certainty the competent authority in the latter State, an irregularity may be corrected in order to ensure that the requirement of consent imposed by Article 56 of Regulation No 2201/2003 has been fully complied with.

Regulation No 2201/2003 must be interpreted as meaning that a judgment of a court of a Member State which orders the compulsory placement of a child in a secure care institution situated in another Member State must, before its enforcement in the requested Member State, be declared to be enforceable in that Member State. In order not to deprive that regulation of its effectiveness, the decision of the court of the requested Member State on the application for a declaration of enforceability must be made with particular expedition and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect.

Where a consent to placement under Article 56(2) of Regulation No 2201/2003 has been given for a specified period of time, that consent does not apply to orders which are intended to extend the duration of the placement. In such circumstances, an application for a new consent must be made. A judgment on placement made in a Member State, declared to be enforceable in another Member State, can be enforced in that other Member State only for the period stated in the judgment on placement.

(1) OJ C 133, 5.5.2012.

30.6.2012

Official Journal of the European Union

C 194/6

Order of the Court (Eighth Chamber) of 29 March 2012 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Safilo Spa

(Case C-529/10) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Direct taxation - Conclusion of proceedings pending before the court giving judgment at final instance in tax matters - Abuse of rights - Article 4(3) TEU - Freedoms guaranteed by the Treaty - Principle of non-discrimination - State aid - Obligation to ensure the effective application of European Union law)

2012/C 194/09

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

Defendant: Safilo Spa

Re:

Reference for a preliminary ruling — Corte Suprema di Cassazione — Taxation of companies — National legislation under which the tax rate applied to company dividends varies according to the location of the company seat — Commercial transaction involving companies with their seat in Italy and companies resident elsewhere — Decision by the tax authorities treating as applicable the tax due in the case of the companies resident outside Italy — Notion of abuse of rights, as defined in Case C-255/02 Halifax and Others [2006] ECR I-1609 — Whether that doctrine applies in the context of non-harmonised domestic taxes such as direct taxes

Operative part of the order

European Union law, in particular the principle of the prohibition of abuse of rights, Article 4(3) TEU, the freedoms guaranteed by the FEU Treaty, the principle of non-discrimination, the rules on State aid and the obligation to ensure the effective application of European Union law, must be interpreted as not precluding the application, in a case such as that in the main proceedings relating to direct taxation, of a provision of national law which provides for proceedings pending before the court giving judgment at final instance in tax matters to be concluded in return for payment of a sum equivalent to 5 % of the value of the claim, where those proceedings originate in an application made at first instance more than 10 years before the date of entry into force of that provision and the tax authorities have been unsuccessful at first and second instance.

(1) OJ C 30, 29.1.2011.

30.6.2012

Official Journal of the European Union

C 194/7

Order of the Court of 22 March 2012 — Cantiere navale De Poli SpA v European Commission

(Case C-167/11 P) (1)

(Appeal - Article 119 of the Rules of Procedure - State aid - Incompatibility with the common market - Commission Decision - Alteration to existing aid - Regulation (EC) No 794/2004 - Regulation (EC) No 1177/2002 - Temporary defensive mechanism for shipbuilding)

2012/C 194/10

Language of the case: Italian

Parties

Appellant: Cantiere navale De Poli SpA (represented by: A. Abate and A. Franchi, avvocati)

Other party to the proceedings: European Commission (represented by: V. Di Bucci and C. Urraca Caviedes, Agents)

Intervener in support of the applicant: Italian Republic (represented by: G. Palmieri, Agent, P. Gentili, avvocato dello Stato)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 3 February 2011 in Case T-584/08 Cantieri Navale De Poli v Commission, by which the Court dismissed the action for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C-20/08 (ex N 62/08) which Italy is planning to implement through a modification of scheme N 59/04 concerning a temporary defensive mechanism for shipbuilding (OJ 2010 L 17, p. 50)

Operative part of the order

1.	The appeal is dismissed.

2.	Cantiere navale De Poli SpA is ordered to pay the costs.

3.	The Italian Republic is to bear its own costs.

(1) OJ C 173, 11.6.2011.

30.6.2012

Official Journal of the European Union

C 194/7

Order of the Court of 22 March 2012 — Italian Republic v European Commission

(Case C-200/11 P) (1)

(Appeal - Article 119 of the Rules of Procedure - State aid - Incompatibility with the common market - Commission decision - Action for annulment - Regulation (EC) No 659/1999 - Article 1(c) - Alteration of existing aid - Regulation (EC) No 794/2004 - Article 4(1) - Temporary defensive mechanism for shipbuilding)

2012/C 194/11

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri, agent, P. Gentili, avvocato dello Stato)

Other party to the proceedings: European Commission (represented by: V. Di Bucci and C. Urraca Caviedes, agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 3 February 2011 in Case T-3/09 Italy v Commission, by which the General Court dismissed an application for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C 20/08 (ex N 62/08) which Italy is planning to implement through a modification of scheme N 59/04 concerning a temporary defensive mechanism for shipbuilding (OJ 2010 L 17, p. 50)

Operative part of the order

1.	The appeal is dismissed.

2.	The Italian Republic is ordered to pay the costs.

(1) OJ C 204, 9.7.2011.

30.6.2012

Official Journal of the European Union

C 194/7

Order of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the Hof van Cassatie van België, Belgium) — Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat

(Case C-333/11) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - TIR Convention - Community Customs Code - Excise duties - Transport carried out under cover of a TIR carnet - Unlawful unloading - Determination of the place of the offence - Recovery of customs and excise duties - Jurisdiction)

2012/C 194/12

Language of the case: Netherlands

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra)

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 454(3), second subparagraph, of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 253, p. 1), of Articles 6(1) and 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) and of Article 37 of the Customs Convention on the International Transport of Goods under cover of TIR carnets (TIR Convention) — Offences or irregularities — Place of the offence or irregularity — Place deemed to be where the offence or irregularity is detected, where it is impossible to determine the place where it was committed

Operative part of the order

Article 454(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, must be interpreted as meaning that a guaranteeing association may prove the place where an offence or irregularity was committed by relying on the place where the TIR carnet was accepted and/or where the seals were affixed. If that association succeeds in reversing the presumption of jurisdiction of the customs authorities of the Member State on the territory of which an offence or irregularity was detected in the course of transport under cover of a TIR carnet in favour of those of the Member State on the territory of which that offence or irregularity was actually committed — which is for the referring court to determine — the customs authorities of that latter State assume jurisdiction to recover the customs debt.

Articles 6(1) and 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that the customs authorities of the Member State on the territory of which the goods were discovered, seized and confiscated enjoy jurisdiction to recover the excise duty, even if those goods were introduced into the territory of the European Union in another Member State, in so far as those goods are held for commercial purposes, which is for the referring court to establish.

(1) OJ C 269, 10.9.2011.

30.6.2012

Official Journal of the European Union

C 194/8

Order of the Court (Fifth Chamber) of 29 March 2012 — Lancôme parfums et beauté & Cie v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Focus Magazin Verlag GmbH

(Case C-334/11 P) (1)

(Appeal - Community trade mark - Word mark ACNO FOCUS - Opposition by the proprietor of the national word mark FOCUS - Refusal of registration - Article 43(2) and (3) of Regulation (EC) No 40/94 - Earlier mark registered for not less than five years)

2012/C 194/13

Language of the case: English

Parties

Appellant: Lancôme parfums et beauté & Cie (represented by: A. von Mühlendahl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent), Focus Magazin Verlag GmbH (represented by: R. Schweizer and J. Berlinger, Rechtsanwälte)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 14 April 2011 in Case T-466/08 Lancôme v OHIM by which that Court dismissed an action for annulment brought by the applicant for the word mark ‘ACNO FOCUS’ for goods in Class 3 against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 29 July 2008 in Case R 1796/2007-1 dismissing the appeal against the Opposition Division’s decision refusing registration of that mark in the opposition proceedings brought by the proprietor of the national word mark ‘FOCUS’ for goods and services in Classes 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33, 34, 36, 38, 39, 41 and 42 — Interpretation and application of Article 43(2) and (3) of Regulation No 40/94 (now Article 42(2) and (3) of Regulation No 207/2009) — Meaning of genuine use of a trade mark

Operative part of the order

The Court (Fifth Chamber):

1.	Dismisses the appeal;

2.	Orders Lancôme parfums et beauté & Cie to pay the costs.

(1) OJ C 282, 24.9.2011.

30.6.2012

Official Journal of the European Union

C 194/9

Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 30 March 2012 — Freistaat Bayern v GREP GmbH

(Case C-156/12)

2012/C 194/14

Language of the case: German

Referring court

Landesgericht Salzburg

Parties to the main proceedings

Applicant: Freistaat Bayern

Defendant: GREP GmbH

Third Party: Revisor beim Landesgericht Salzburg

Questions referred

Is the first sentence of Article 51(1) of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that proceedings for a declaration of enforceability of judgments given in a Member State pursuant to Article 38 et seq. of Council Regulation No 44/2001 (1) also fall within the scope of the Charter?

2.a)

If so, does the principle of effective judicial protection enshrined in Article 47 of the Charter cover a claim for exemption from the payment of court costs, in particular a fixed fee payable on lodging an appeal, and/or fees for the assistance of a lawyer in proceedings of the kind referred to in question 1?

2.b)

Does this apply also to enforcement proceedings to be conducted in accordance with national law or, at least, to simultaneous appeal proceedings concerning consent to enforcement if the court has given a decision on the application for a declaration of enforceability and consent to enforcement together in one order?

Does a right to legal aid in the above sense arise at least in the alternative from Article 43(1) of Regulation No 44/2001 and/or Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms where national law requires a party to be represented before the court by a lawyer for the lodging of the appeal in question?

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, p. 1.

30.6.2012

Official Journal of the European Union

C 194/9

Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 — C.D. v S.T.

(Case C-167/12)

2012/C 194/15

Language of the case: English

Referring court

Employment Tribunal Newcastle upon Tyne

Parties to the main proceedings

Applicant: C.D.

Defendant: S.T.

Questions referred

In each of the following questions:

(a)	The phrase ‘an intended mother who has a baby through a surrogacy arrangement’ shall refer to circumstances where the intended mother in question is a worker and has not herself, at any material time, been pregnant, or given birth to the child in question.

(b)

The phrase ‘surrogate mother’ shall refer to circumstances where a woman has been pregnant and given birth to a child on behalf of an intended mother.

1.	Do Article 1(1) and/or Article 2(c) and/or Article 8(1) and/or Article 11(2)(b) of the Pregnant Workers Directive 92/85/EEC (1) provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement?

Does the Pregnant Workers Directive 92/85/EEC provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, in circumstances where she:

(a)	may breastfeed following birth and/or

(b)	does breastfeed following birth?

3.	Is it a breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC (2) for an employer to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

Is it by reason of the employee's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

Is it by reason of the intended mother's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to subject an intended mother who has a baby through a surrogacy arrangement to less favourable treatment?

6.	If the answer to questions 4 is ‘yes’, is the intended mother's status as intended mother sufficient to entitle her to maternity leave on the basis of her association with the surrogate mother of the baby?

If the answer to any of questions 1,2,3 and 4 is ‘yes’:-

7.1.	Is the Pregnant Workers Directive 92/85/EEC, in the relevant respects, directly effective; and

7.2.	Is the Recast Equal Treatment Directive 2006/54/EC, in the relevant respects directly effective.

(1) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)

OJ L 348, p. 1

(2) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)

OJ L 204, p. 23

30.6.2012

Official Journal of the European Union

C 194/10

Appeal brought on 5 April 2012 by EI du Pont de Nemours and Company against the judgment of the General Court (Seventh Chamber) delivered on 2 February 2012 in Case T-76/08: EI du Pont de Nemours and Company and others v European Commission

(Case C-172/12 P)

2012/C 194/16

Language of the case: English

Parties

Appellant: EI du Pont de Nemours and Company (represented by: J. Boyce, A. Lyle-Smythe, Solicitors)

Other parties to the proceedings: DuPont Performance Elastomers LLC, DuPont Performance Elastomers SA, European Commission

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court in Case T-76/08 insofar as it upheld the Commission's finding that the Appellant was a party to the infringement and liable to pay a fine;

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

Pleas in law and main arguments

The appellant’s grounds of appeal are that the General Court erred in law in finding that the appellant was liable for infringements by DuPont Dow Elastomers (‘DDE’). Insofar as the appellant is successful on this ground of appeal, it follows that:

—	as regards the period prior to the establishment of DDE (when the chloroprene rubber business had been owned by the appellant) the General Court erred in law in not ruling that the Commission was time-barred from imposing a fine on the appellant in respect of participation by its subsidiaries, and

—

in circumstances where the Commission was time-barred from imposing a fine and failed to demonstrate a legitimate interest for issuing a decision against the appellant, the General Court erred in law in ruling that the appellant was liable for participation by its subsidiaries in the period prior to the establishment of DDE.

30.6.2012

Official Journal of the European Union

C 194/10

Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 13 April 2012 — Sandler AG v Hauptzollamt Regensburg

(Case C-175/12)

2012/C 194/17

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Sandler AG

Defendant: Hauptzollamt Regensburg

Questions referred

Is the second indent of the first subparagraph of Article 889(1) of the Customs Code Implementing Provisions (1) to be interpreted as only regulating cases of requests for repayment where goods were first released for free circulation at the third-country duty rate and it subsequently transpires that at the time when the customs declaration was accepted a reduced or zero rate of import duty (here: preferential tariff rate) actually existed, but had already expired again when the request for repayment is made, with the result that the expiry of a temporary preferential tariff arrangement cannot be invoked against an operator in connection with submission of a request for repayment where the preferential tariff rate is granted during clearance and preferential treatment is refused and the third-country duty rate applied only upon post-clearance recovery by the administration?

Are Article 16(1)(b) and Article 32 of Protocol 1 to Annex V of the Cotonou Agreement (2) to be interpreted to the effect that, if the exporting State endorses an EUR.1 movement certificate with a stamp other than the specimen impression of the stamp notified to the Commission, the customs authorities of the importing State may treat such a variation, in cases of doubt, as a technical deficiency for the purposes of Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement and thus declare invalid the EUR.1 movement certificate without the participation of the customs authorities of the exporting State?

If the answer to Question 2 is in the affirmative:

(a)	Is Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement applicable even where the technical deficiency is not detected immediately at importation, but only during the subsequent verification by the customs authorities?

(b)

Can Article 16(4) and (5) of Protocol 1 to Annex V of the Cotonou Agreement be interpreted to the effect that a technical deficiency is considered to be rectified where, in the case of an EUR.1 movement certificate issued retrospectively, one of the indications provided for in Article 16(4) of Protocol 1 to Annex V of the Cotonou Agreement has not been entered, in its precise wording, in the ‘Remarks’ box, but only a phrase to the effect that the preference certificate was issued retrospectively?

If Question 2 is answered in the negative:

Is Article 236(1) (3) of the Customs Code to be interpreted to the effect that import duties were not legally owed and were therefore wrongly recovered pursuant to Article 220(1) of the Customs Code where the EUR.1 movement certificates originally used could not be declared invalid by the customs authorities of the importing country without the involvement of the customs authorities of the exporting country?

In the event that an EUR.1 movement certificate issued retrospectively is presented pursuant to Article 16 of Protocol 1 to Annex V of the Cotonou Agreement, is the repayment of already recovered and paid import duties under Article 889 of the Customs Code Implementing Provisions possible only if the preferential tariff rate still applies at the time of the request for repayment?

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code OJ L 253, 11.10.1993, p. 1, Commission Regulation (EC) No 214/2007 of 28 February 2007 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2007 L 62, p. 6).

(2) 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3).

(3) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

30.6.2012

Official Journal of the European Union

C 194/11

Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bulgaria) lodged on 16 April 2012 — Stoilov i Ko EOOD v Nachalnik na Mitnitsa Stolichna

(Case C-180/12)

2012/C 194/18

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia — grad

Parties to the main proceedings

Applicant: Stoilov i Ko EOOD

Defendant: Nachalnik na Mitnitsa Stolichna

Questions referred

Is the article — rolled-up strips out of non-woven fabric for the production of interior blinds — to be assigned the NC Code 5407 61 30 depending on the characteristics of the article as ‘woven fabric’ or the NC Code 6303 92 10 corresponding to its single intended purpose — for interior blinds — for the purposes of the tariff classification according to the Combined Nomenclature 2009, which is formed by Annex I to Commission Regulation (EC) No 1031/2008 (1) of 19 September 2008 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, whereat the following is to be taken into consideration:

(a)

the term ‘made-up article’ within the meaning of note 7 to Chapter 63 (‘Other made-up textile articles; sets; worn clothing and worn textile articles; rags’) in Section XI (‘Textiles and textile articles’) of the Combined Nomenclature 2009, interpreted in conjunction with point 2(a) of [Section A] of the general rules of nomenclature concerning the terms ‘incomplete or unfinished article’ having regard to the case mentioned in point (c) of note 7, the characteristics of the article in question in the current proceedings and the possibility that a single end-product is produced from it;

(b)

the question of whether the term ‘woven fabric’ according to Chapter 54, subheading 5407 61 30 of the Combined Nomenclature 2009 covers fabric strips, which, like the end-product forming their single intended purpose — interior blinds —, also comes with fixed edges on the long side and, to be more precise, in view of the express reference to that product in subheading 6303 92 10 of the nomenclature?

Does a reasonable ground exist for the assumption that a legitimate expectation with regard to the tariff classification of the article arose for the declarant and obligated party due to the importation of the article and that, according to Article 71(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and with regard to the basic principle of legitimate expectations, the customs tariff number of the article which is stated in the customs declaration is to be applied if, according to the facts of the case in the main proceedings at the time of the making of the customs declaration, the following circumstances were existent:

(a)

With respect to a customs declaration which was made earlier of the same articles with the same customs tariff number, no samples were taken for analysis by the customs authorities after an examination of the articles recorded in a protocol, including an examination with regard to the tariff classification, and the conclusion was drawn that the articles were consistent with the information in the declaration;

(b)

no later examination took place after the allocation of the articles to five other customs declarations of the same articles with the same customs tariff number, which had also been made earlier, and, to be more precise, before and after the date of the protocol regarding the customs examination, in which it was established that the customs tariff number was correct?

Is Article 243(1) of Regulation No 2913/92 with regard to the protection of the basic principle of legal effect to be interpreted as meaning that an appeal can only be lodged against the act according to Article 232(1)(a) of that regulation, if that act was issued due to a payment which was not made within the period prescribed, by means of which the amount of the import duty levied is established at the same time and it constitutes an enforcement order for the collection of duties according to the national law of the Member State?

Are Articles 41(2)(a) and 47 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that, when an application for the gathering of evidence by means of an independent expert’s report, which was requested by the obligated party after its briefing in accordance with Article 221(1) of Regulation No 2913/92, was not expressly acknowledged by a customs authority and was not discussed in the grounds for later decisions, an unrecoverable infringement of the right to good administration and the right to a defence in administrative proceedings occurs, which can no longer be remedied in the court proceedings because the person concerned in the circumstances of the main proceedings only has the chance to prove his objections regarding the tariff classification of the article in the proceedings before the first-instance court by posing questions to the independent expert?

(1) OJ 2008 L 291, p. 1.

30.6.2012

Official Journal of the European Union

C 194/12

Appeal brought on 18 April 2012 by Chafiq Ayadi against the order of the General Court (Second Chamber) delivered on 31 January 2012 in Case T-527/09: Chafiq Ayadi v European Commission

(Case C-183/12 P)

2012/C 194/19

Language of the case: English

Parties

Appellant: Chafiq Ayadi (represented by: H.A.S. Miller, Solicitor)

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

Form of order sought

The Appellant seeks the following order if successful on both pleas:

—	the order of the General Court dated 31 January 2012 is quashed

—	it is declared that the action for annulment is not devoid of purpose

—	the matter be remitted back to the General Court for it to determine the annulment application

—	The Commission do pay the costs of this appeal and the costs of defending the Commission's application to find the annulment action devoid of purpose before the General Court.

Pleas in law and main arguments

The Appellant raises the following two pleas in law:

The General Court erred when it failed to:

(a)	hear from the Advocate-General and/or

(b)	invite representations from the Appellant as to whether the oral procedure ought to be opened and/or

(c)	open the oral procedure on the question as to whether the application to annul was devoid of purpose.

B.	The General Court erred in finding that the action for annulment was not capable of conferring material advantage upon the Appellant.

30.6.2012

Official Journal of the European Union

C 194/13

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Società Fondiaria Industriale Romagnola (SFIR) SpA v Ministero delle Politiche Agricole Alimentari e Forestali

(Case C-187/12)

2012/C 194/20

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Società Fondiaria Industriale Romagnola (SFIR) SpA

Respondents: Ministero delle Politiche Agricole Alimentari e Forestali AGEA — Agenzia per le Erogazioni in Agricoltura

Questions referred

Must the full dismantling of the production facilities for sugar, isoglucose and inulin syrup, pursuant to Article 3 of Council Regulation (EC) No 320/2006, (1) the detailed rules for the implementation of which are set out in Commission Regulation (EC) No 968/2006, (2) be interpreted as meaning that the facilities to be dismantled are those necessary for production, as specifically laid down in the abovementioned Article 3 of the Council regulation, in accordance with which the Commission regulation must itself be interpreted, failing which the latter regulation will be invalid? Consequently, pursuant to the abovementioned Article 3 of Council Regulation No 320/2006 and Article 4 of Commission Regulation No 968/2006, do the facilities to be dismantled include only those intended for the production of sugar, isoglucose and inulin syrup, and the other facilities referred to in Article 4(1)(c) of Regulation No 968/2006, including packaging facilities, that have been left unused and must be dismantled and removed for environmental reasons? Consequently, may those facilities not linked to the production of sugar, isoglucose and inulin syrup, and not left unused but used for other activities such as, in this case, packaging, and not subject to the obligation of removal for environmental reasons be kept, because they are not subject to the dismantling obligation under the above Community regulations?

(1) OJ L 58, p. 42.

(2) OJ L 176, p. 32.

30.6.2012

Official Journal of the European Union

C 194/13

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Italia Zuccheri S.p.A. and Co.Pro.B. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali

(Case C-188/12)

2012/C 194/21

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Italia Zuccheri S.p.A. and Cooperativa Produttori Bieticoli società cooperativa agricola (Co.Pro.B.)

Respondents: Agenzia per le Erogazioni in Agricoltura (AGEA), Ministero delle Politiche Agricole Alimentari e Forestali

Questions referred

Are Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 (1) and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 (2) to be interpreted as meaning that the phrase ‘production facilities’ does not include facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it and that, therefore, in the case of facilities such as silos, it is necessary to complete a case-by-case analysis in order to establish whether those facilities are connected with the ‘production line’ or whether they are connected with other activities, different from production?

In particular, is Article 4 of Commission Regulation No 968/2006 of 27 June 2006 to be interpreted as meaning that facilities — such as silos — which are used by sugar companies for storing, packing or packaging sugar purely for the purposes of marketing it, being independent from the production cycle, are part of the facilities referred to in Article 4(1)(c), rather than Article 4(1)(a) and (b), in accordance with the wording and objectives of Regulation No 320/2006 and Regulation No 968/2006, in particular Recital 4 in the preamble to the latter?

In the alternative, with regard to Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 and with regard to the higher rules and principles of EU primary law, is Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 invalid if interpreted as also including among the facilities referred to in Article 4(1)(a) and (b) of Regulation No 968/2006 those facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it, given that it is clear that the objective of Regulation No 320/2006 is to reduce the production capacity of the sugar company and not to prevent the company from being able to operate in the sector of the mere marketing of the product, using sugar obtained relying on production quotas belonging to other facilities or businesses?

In the further alternative, in any event, are Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 and Article 4 of Commission Regulation (EC) [No 968/2006] of 27 June 2006 valid, by the yardstick of the higher rules and principles of EU primary law, if interpreted as including in the concept of ‘production facilities’ or facilities ‘directly related to … production’ those facilities used by sugar companies for storing, packing or packaging sugar for the purposes of marketing it?

(1) OJ 2006 L 58, p. 42

(2) OJ 2006 L 176, p. 32

30.6.2012

Official Journal of the European Union

C 194/14

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Eridania Sadam S.p.A. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali

(Case C-189/12)

2012/C 194/22

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Eridania Sadam S.p.A.

Respondents: Agenzia per le Erogazioni in Agricoltura (AGEA), Ministero delle Politiche Agricole Alimentari e Forestali

Questions referred

Are Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 (1) and Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 (2) to be interpreted as meaning that the phrase ‘production facilities’ does not include facilities used by sugar companies for packaging sugar for the purposes of marketing it and that, therefore, in the case of facilities such as silos, it is necessary to complete a case-by-case analysis in order to establish whether those facilities are connected with the ‘production line’ or whether they are connected with other activities, different from production, such as packaging?

In the alternative, with regard to Articles 3 and 4 of Council Regulation (EC) No 320/2006 of 20 February 2006 and with regard to the higher rules and principles of EU primary law, is Article 4 of Commission Regulation (EC) No 968/2006 of 27 June 2006 invalid if interpreted as also including among the facilities referred to in Article 4(1)(a) and (b) of Regulation No 968/2006 those facilities used by sugar companies for packaging sugar for the purposes of marketing it, given that it is clear that the objective of Regulation No 320/2006 is to reduce the production capacity of the sugar company and not to prevent the company from being able to operate in the sector of the mere marketing of the product, using sugar obtained relying on production quotas belonging to other facilities or businesses?

(1) OJ 2006 L 58, p. 42

(2) OJ 2006 L 176, p. 32

30.6.2012

Official Journal of the European Union

C 194/14

Action brought on 26 April 2012 — European Commission v Republic of Bulgaria

(Case C-198/12)

2012/C 194/23

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: T. Scharf, O. Beynet, and S. Petrova, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The applicant claims that the Court should:

—

declare that, the Republic of Bulgaria has infringed its obligations, resulting from Article 14(1) of Regulation (EC) No 715/2009 (1) in conjunction with Article 16(1) and (2)(b) thereof, to provide maximum capacity to all market participants and, in particular, services for virtual reverse flow gas transport;

—	order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

By the present action, the Commission seeks a declaration that the Republic of Bulgaria has infringed its obligations resulting from Article 14(1) of Regulation (EC) No 715/2009 in conjunction with Article 16(1) and (2)(b) thereof, which replace Article 14(1) and Article 5(1) and (2) of Regulation (EC) No 1775/2005.

Those obligations are the following:

—

The obligations resulting from Article 14(1) of Regulation (EC) No 715/2009 in conjunction with Article 16(1) and (2)(b) thereof to provide maximum capacity to all market participants and, in particular, services for virtual reverse flow gas transport.

According to the Bulgarian authorities, the reason why the abovementioned obligation to provide maximum capacity was not fulfilled is that there is no physical connection between the transit system and the national gas transport system of the Republic of Bulgaria, and that those systems are subject to different regulations.

A further reason why that obligation was not fulfilled, claim the Bulgarian authorities, is that there are three interstate agreements in force between the Republic of Bulgaria and the Government of the USSR, which were concluded in 1986 and 1989.

The Commission contends that, if the interstate trade agreement of 27 April 1998 between OOO Gazprom and Bulgartransgaz EAD impedes the fulfilment by the Bulgarian authorities of their obligation to provide maximum capacity, the Republic of Bulgaria is required, pursuant to Article 351(2) of the Treaty on the Functioning of the European Union, to take all appropriate steps to eliminate such incompatibilities with the provisions of European Union law.

(1) Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36).

30.6.2012

Official Journal of the European Union

C 194/15

Reference for a preliminary ruling from the Corte di appello di Roma (Italy) lodged on 3 May 2012 — Martini SpA v Ministero delle Attività Produttive

(Case C-211/12)

2012/C 194/24

Language of the case: Italian

Referring court

Corte di appello di Roma

Parties to the main proceedings

Applicant: Martini SpA

Defendant: Ministero delle Attività Produttive

Questions referred

Must Article 35 of Commission Regulation (EC) No 1291/2000 of 9 June 2000 (1) be interpreted as meaning that the essential aim underlying the penalty laid down therein — consisting in total forfeiture of the security required from Community economic operators which have obtained an import or export licence for a product governed by the common organisation of the market for cereals — is to deter those operators from failing to comply with a primary obligation (such as the actual importation or exportation of the cereals covered by the relevant licence) which they are required to fulfil with regard to the operation in respect of which they have been granted the licence and lodged the relevant security?

Must Article 35(4) of Regulation (EC) No 1291/2000, in so far as it lays down the time-limits and procedure for the release of the security lodged at the time when an import licence is issued, be interpreted as meaning that, where there is a failure to comply with a secondary obligation — consisting, in particular, in the late production of proof that the product has been correctly imported (and, consequently, the late submission of the related application for release of the security lodged) — the amount of the penalty to be imposed must be determined independently of the amount of the specific security the forfeiture of which must be ordered for non-compliance with a primary obligation in relation to those same imports, and must the amount of the penalty be determined, in particular, by reference to the normal amount of security applicable to most imports of products of the same type carried out during the reference period?

Must Article 35(4)(c) of Commission Regulation (EC) No 1291/2000, in so far as it provides that ‘.... where, for a given product, there are licences or certificates with different levels of security, the [lowest] rate applicable to imports … shall be used to calculate the amount to be forfeited.’, be interpreted as meaning that, where cereals have been correctly imported by a Community economic operator, non-compliance with the time-limit laid down for producing proof that the product has actually been imported into the European Community must be subject to a penalty calculated by reference to the lowest amount of security in force during the same period in which that product was imported, irrespective of the specific duty applicable (as argued by Martini) or only where the same duty applies (as argued by the Italian State)?

(1) OJ 2000 L 152, p. 1.

30.6.2012

Official Journal of the European Union

C 194/16

Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012

(Case C-214/12 P)

2012/C 194/25

Language of the proceedings: German

Parties

Appellant: Land Burgenland (represented by: U. Soltész and P. Melcher, Rechtsanwälte, supported by A. Egger, Rechtsanwalt)

Other parties: European Commission, Republic of Austria

Form of order sought by the appellant

—	Set aside the judgment of the General Court of 28 February 2012 in Joined Cases T-268/08 and T-281/08;

—

Give final judgment in the case and annul Decision 2008/719/EC of the European Commission of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32) and order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice;

—	In the alternative to the second form of order, refer the case back to the General Court for a decision in keeping with the legal assessment in the judgment of the Court of Justice and reserve the costs.

Pleas in law and main arguments

By the present appeal, the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 in which it dismissed the action of the appellant against Commission Decision 2008/719/EC of 30 April 2008 on State aid implemented by Austria for the privatisation of Bank Burgenland.

The appellant relies on four grounds of appeal:

1. Infringement by the General Court of the right to be heard through the failure to appraise an essential part of the eighth plea in law

In the submissions that were not appraised, the appellant criticised the fact that the Commission exclusively took account of the advantage associated with the ‘additional bonds’ in the amount of EUR 380 million and thereby disregarded the advantage which was associated with the bonds in the amount of EUR 320 million and thus the absence of any ‘aid element’ in the sale of Bank Burgenland to Grazer Wechselseitige Versicherung.

Those submissions were not acknowledged by the General Court although the appellant had expressly pointed them out to the General Court in its observations on the Report for the Hearing because they were not contained in the Report for the Hearing.

2. Infringement of Article 107(1) TFEU through the finding that, during the evaluation of the offers, the Commission did not err in law in not taking account of the risks arising from Ausfallhaftung for the Province of Burgenland (Land Burgenland)

In that respect, the General Court wrongly relied on case-law which is not applicable to the present case or, if the case-law were applicable at least in principle, it is in conflict with the considerations of the General Court.

In addition, the General Court did not take account of other case-law which is in conflict with its arguments.

Finally, the General Court wrongly considered that the risks arising from Ausfallhaftung were not relevant, although Ausfallhaftung constitutes existing and therefore lawful aid.

3. Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in relying on the offer of the Consortium in order to determine the market value of Bank Burgenland

The General Court wrongly concluded that there was no manifest error of assessment in the choice and application of the methods for determining the market value of Bank Burgenland by the Commission.

In addition, the General Court considered that the tender procedure carried out for the sale of Bank Burgenland was unconditional, contrary to the unambiguous conclusions of the Commission, and, without checking, relied on the incorrect conclusion of the Commission that the ‘deficient’ conditions had no effect on the amount of the offers.

Furthermore, the General Court considered that the taking into account by the Commission of the clearly excessive offer of the Consortium was without fault although the determination of the excess was decisively based on the fact that Ausfallhaftung did not apply and that the risks arising from Ausfallhaftung were not to be taken into account.

4. Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in determining that neither the outcome nor the length of the procedure before the Finanzmarktaufsichtbehörde (authority responsible for the supervision of financial markets, ‘FMA’) justified the sale of Bank Burgenland to Grazer Wechselseitige Versicherung

The General Court considered that the finding of the Commission that nothing indicated that the FMA was going to prohibit the sale to the Consortium was without fault but in so doing incorrectly assumed that the evidence put forward by the appellant was not relevant for the authorisation procedure before the FMA and had not been taken into account by the FMA.

In addition, in finding that nothing indicated that the length of the procedure before the FMA had seriously compromised the chances of privatisation of Bank Burgenland, the General Court ignored the hard evidence put forward by the applicant.

Finally, the General Court applied an incorrect standard of examination and review.

30.6.2012

Official Journal of the European Union

C 194/17

Appeal brought on 14 May 2012 by the Republic of Austria against the judgment of the General Court (Sixth Chamber) delivered on 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission

(Case C-223/12 P)

2012/C 194/26

Language of the case: German

Parties

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

Other parties to the proceedings: European Commission, Land Burgenland

Form of order sought

—	Set aside the judgment of the General Court of 28 February 2012 in Joined Cases T-268/08 and T-281/08;

—

give final judgment itself in the matter and annul Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32) and order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice;

—	in the alternative to the second head of claim above, refer the case back to the General Court for determination in line with the legal assessment contained in the judgment of the Court of Justice, and reserve its decision on costs.

Pleas in law and main arguments

By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 by which the General Court dismissed the appellant’s action against Commission Decision 2008/719/EC of 30 April 2008 on State aid implemented by Austria for the privatisation of Bank Burgenland.

The appellant submits two grounds of appeal:

1. Infringement of Article 107(1) TFEU in so far as it was determined that the Commission did not err in law in its evaluation of the offers by failing to consider the risks arising for the Land Burgenland from the Ausfallhaftung (deficiency liability)

The General Court wrongly relies on case-law that is not applicable to the present case or — inasmuch as it is applicable, at least in principle — is inconsistent with the General Court’s considerations.

The General Court moreover failed to consider other case-law that is inconsistent with its considerations.

Lastly, the General Court erred in taking the view that the risks arising from the Ausfallhaftung could not be taken into account, even though the Ausfallhaftung constitutes existing and thus lawful aid.

2. Infringement of Article 107(1) TFEU in so far as it was determined that the Commission did not err in law in finding that neither the outcome nor the length of the procedure before the Austrian Financial Market Authority (FMA) justified the sale of Bank Burgenland to Grazer Wechselseitige Versicherung

The General Court considered the Commission’s conclusion that there was no indication that the FMA would forbid the purchase by the consortium to be correct, but erred in proceeding on the assumption that the information supplied by the appellant had not been relevant to the FMA approval process and had not been taken into account by the FMA.

The General Court also overlooked specific evidence adduced by the appellant when it found that there was no indication that the length of the FMA procedure had seriously jeopardised the chances of privatising Bank Burgenland.

Lastly, the General Court applied the wrong standard of assessment and review.

30.6.2012

Official Journal of the European Union

C 194/18

Judgment of the General Court of 22 May 2012 — EnBW Energie Baden-Württemberg v Commission

(Case T-344/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Administrative file relating to cartel proceedings - Refusal of access - Exception relating to protection of the purpose of investigations - Exception concerning the protection of the commercial interests of a third party - Exception concerning the protection of the decision-making process - Obligation of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the request for access)

2012/C 194/27

Language of the case: German

Parties

Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe, Germany) (represented by: A. Bach and A. Hahn, lawyers)

Defendant: European Commission (represented: initially by P. Costa de Oliveira, A. Antoniadis and O. Weber and subsequently by A. Bouquet, P. Costa de Oliveira and A. Antoniadis, Agents)

Interveners in support of the applicant: Kingdom of Sweden (represented by: K. Petkovska, S. Johannesson and A. Falk, acting as Agents)

Intervener in support of the defendant: Siemens AG (Berlin and Munich, Germany) (represented by: I. Brinker, C. Steinle and M. Holm-Hadulla, lawyers); and ABB Ltd (Zurich, Switzerland) (represented: initially by J. Lawrence, Solicitor, and E. Whiteford, Barrister, and subsequently by J. Lawrence and D. Howe, Solicitor)

Re:

Application for annulment of Commission Decision SG.E.3/MV/psi D(2008) 4931 of 16 June 2008 refusing access to the case-file in Case COMP/F/38.899 — Gas insulated switchgear

Operative part of the judgment

The Court:

1.	Annuls Commission Decision SG.E.3/MV/psi D(2008) 4931 of 16 June 2008 refusing access to the case-file in Case COMP/F/38.899 — Gas insulated switchgear;

2.	Orders the European Commission to bear its own costs and to pay those incurred by EnBW Energie Baden-Württemberg AG;

3.	Orders the Kingdom of Sweden, ABB Ltd and Siemens AG to bear their own costs.

(1) OJ C 272, 25.10.2008.

30.6.2012

Official Journal of the European Union

C 194/18

Judgment of the General Court of 22 May 2012 — Sviluppo Globale v Commission

(Case T-6/10) (1)

(Public service contracts - Call for tenders - Support for the customs and tax authorities in Kosovo - Rejection of a tenderer’s bid - Act not amenable to review - Confirmatory act - Inadmissibility - Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the call for tenders - Partial refusal of access - Exception concerning the protection of the commercial interests of a third party - Inadequate statement of reasons)

2012/C 194/28

Language of the case: Italian

Parties

Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone and A. Neri, lawyers)

Defendant: European Commission (represented by: P. Costa de Oliveira and F. Erlbacher, acting as Agents, and P. Manzini, lawyer)

Re:

Application, first, for annulment of the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo (OJ 2009/S 4-003683) and, second, for annulment of the Commission’s decision of 26 November 2009 refusing the consortium access to certain documents relating to the call for tenders.

Operative part of the judgment

The Court:

Dismisses the action as inadmissible in so far as it is directed against the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo.

Annuls the Commission’s decision of 26 November 2009 concerning access to certain documents relating to that call for tenders, in so far as it refuses to grant access, in the disclosed version of the evaluation report, to the scores awarded by the evaluation committee as set out on pages 3 to 5 of that report.

3.	Dismisses the action as to the remainder.

4.	Dismissed the applicant’s application for the instigation of measures of inquiry.

5.	Orders Sviluppo Globale GEIE to bear its own costs relating to the main proceedings and to pay three quarters of the costs incurred by the Commission in those proceedings. Orders the Commission to bear one quarter of its costs relating to the main proceedings.

6.	Orders Sviluppo Globale to bear all the costs relating to the application for interim relief in Case T-6/10 R.

(1) OJ C 51, 27.2.2010.

30.6.2012

Official Journal of the European Union

C 194/19

Judgment of the General Court of 22 May 2012 — Internationaler Hilfsfonds v Commission

(Case T-300/10) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to contract LIEN 97 2011 - Partial refusal of access - Determination of the subject-matter of the initial application - Exception relating to the protection of privacy and the integrity of the individual - Exception relating to protection of the decision-making process - Principle of sound administration - Concrete and individual examination - Duty to state reasons)

2012/C 194/29

Language of the case: German

Parties

Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) (represented by: H. Kaltenecker, lawyer)

Defendant: European Commission (represented by: P. Costa de Oliveira and T. Scharf, Agents, assisted by R. van der Hout, lawyer)

Re:

Application for annulment of the Commission’s decision of 29 April 2010 refusing the applicant full access to the file relating to contract LIEN 97 2011

Operative part of the judgment

The Court:

1.	Annuls the decision of the European Commission of 29 April 2010 in so far as it impliedly refuses access to the documents which it sent to the colleague of the European Ombudsman, other than those identified by the latter in files 1 to 4 of the file relating to contract LIEN 97 2011;

2.	Also annuls the Commission’s decision of 29 April 2010 in so far as it expressly or impliedly refuses access to the documents of the file relating to contract LIEN 97 2011 referred to in paragraphs 106, 134, 194 and 196 of this judgment;

3.	Dismisses the action as to the remainder;

4.	Orders the Commission to bear its own costs and four fifths of the costs incurred by Internationaler Hilfsfonds eV.

(1) OJ C 246, 11.9.2010.

30.6.2012

Official Journal of the European Union

C 194/19

Judgment of the General Court (Fourth Chamber) of 22 May 2012 — Portugal v Commission

(Case T-345/10) (1)

(EAGGF - Guidance Section - Reduction of financial assistance - Measures to support investments in agricultural holdings - Effectiveness of controls)

2012/C 194/30

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes and J. Saraiva de Almeida, agents, and by M. Figueiredo, lawyer)

Defendant: European Commission (represented by: P. Guerra e Andrade and G. von Rintelen, agents)

Re:

Annulment of Commission Decision C(2010) 4255 of 29 June 2010 concerning the application of financial corrections to assistance from the EAGGF, Guidance Section, allocated to Operational Programme No CCI 1999.PT.06.1.PO.007 (Portugal — National Objective 1 programme) for the measure ‘Investments in agricultural holdings’.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Portuguese Republic to pay the costs.

(1) OJ C 301, 6.11.2010

30.6.2012

Official Journal of the European Union

C 194/19

Judgment of the General Court of 16 May 2012 — Wohlfahrt v OHIM — Ferrero (Kindertraum)

(Case T-580/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Kindertraum - Earlier national word mark Kinder - Relative ground for refusal - Proof of use of the earlier trade mark - Article 42(2) of Regulation (EC) No 207/2009 - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009)

2012/C 194/31

Language of the case: German

Parties

Applicant: Harald Wohlfahrt (Rothenburg ob der Tauber, Germany) (represented initially by N. Scholz Recht, then by G. Huβlein-Stich, latterly by M. Loschelder, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by A. Pohlmann, then D. Walicka, agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Ferrero SpA (Alba, Italy) (represented by: F. Jacobacci and L. Ghedina, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 October 2010 (Case R 815/2009-4) relating to opposition proceedings between Ferrero SpA and Mr Harald Wohlfahrt.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Harald Wohlfahrt to pay the costs.

(1) OJ C 63, 26.2.2011

30.6.2012

Official Journal of the European Union

C 194/20

Judgment of the General Court of 15 May 2012 — Nijs v Court of Auditors

(Case T-184/11 P) (1)

(Appeal - Civil service - Officials - Disciplinary measures - Disciplinary procedure - Removal from post with entitlement to old-age pension - Articles 22a and 22b of the Staff Regulations - Requirement for precision in the appeal - New plea in law - Effective judicial protection - Article 47 of the Charter of Fundamental Rights - No obligation on the court to raise of its own motion a plea alleging infringement of the principle that action must be taken within a reasonable period)

2012/C 194/32

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger and P.-F. Onimus, lawyers)

Other party to the proceedings: Court of Auditors of the European Union (represented by: T. Kennedy, J. Vermer and K. Zavřelová, Agents)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 13 January 2011 in Case F-77/09 Nijs v Court of Auditors, not published in the ECR, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Mr Bart Nijs to bear his own costs and to pay the costs incurred by the Court of Auditors of the European Union in the appeal proceedings.

(1) OJ C 179, 18.6.2011.

30.6.2012

Official Journal of the European Union

C 194/20

Judgment of the General Court of 15 May 2012 — Ewald v OHIM — Kin Cosmetics (Keen)

(Case T-280/11) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark Keen - Community figurative mark KIN - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 194/33

Language of the case: German

Parties

Applicant: Rita Ewald (Frauenwald, Germany) (represented by: S. Reinhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Kin Cosmetics, S.A. (Sant Feliu de Guixols, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 3 March 2011 (Case R 1383/2010-1), relating to opposition proceedings between Kin Cosmetics, S.A. and Ms Rita Ewald

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders Ms Rita Ewald to pay the costs.

(1) OJ C 238, 13.8.2011.

30.6.2012

Official Journal of the European Union

C 194/20

Action brought on 30 March 2012 — Comsa v OHIM — COMSA (COMSA)

(Case T-144/12)

2012/C 194/34

Language in which the application was lodged: Spanish

Parties

Applicant: Comsa, SA (Barcelona, Spain) (represented by: M. Aznar Alonso, lawyer)

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

Other party to the proceedings before the Board of Appeal: Constructora de obras municipales, SA (COMSA) (Madrid, Spain)

Form of order sought

—	Uphold the action and declare that points 2, 3 and 5 of the decision of the Second Board of Appeal of 10 January 2012 in Joined Cases R 518/2011-2 and R 795/2011-2 are not consistent with Council Regulation (EC) No 40/94 on the Community trade mark (now Regulation (EC) No 207/2009);

—	order the defendant and, where appropriate the intervener, to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Constructora de obras municipales, SA (COMSA)

Community trade mark concerned: Word mark ‘COMSA’ for goods and services in Classes 19, 35, 36, 37, 39 and 42 — Community trade mark application No 7 091 051

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

Mark or sign cited in opposition: Company name (business name) ‘COMSA S.A.’ and unregistered mark ‘COMSA’

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: The appeals of the applicant and of the defendant upheld in part

Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009

30.6.2012

Official Journal of the European Union

C 194/21

Action brought on 2 April 2012 — Investrónica v OHIM — Olympus Imaging (MICRO)

(Case T-149/12)

2012/C 194/35

Language in which the application was lodged: Spanish

Parties

Applicant: Investrónica, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Olympus Imaging Corp. (Tokyo, Japan)

Form of order sought

—

Annul the decision of 31 January 2012 of the Fourth Board of Appeal of OHIM, in Case R 347/2011-4, and declare that, pursuant to Article 8(1)(b) of the Community trade mark regulation, the trade mark applicant’s appeal before OHIM ought to have been dismissed and the Opposition Division’s decision refusing trade mark application No 7 014 392‘MICRO’ (mixed) in its entirety upheld;

—	order the party or parties which oppose this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Olympus Imaging Corporation

Community trade mark concerned: Figurative mark ‘MICRO’, in black and white, for goods in Class 9 (Application No 7 014 392)

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

Mark or sign cited in opposition: Spanish figurative mark ‘micro’, in light blue and dark blue, for goods and services in Classes 9, 38 and 42 (Mark No 2736947)

Decision of the Opposition Division: Opposition upheld and application for registration of the mark applied for refused

Decision of the Board of Appeal: Appeal upheld and decision under appeal which refused the mark applied for annulled

Plea in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 given that there is a likelihood of confusion between the signs at issue.

30.6.2012

Official Journal of the European Union

C 194/21

Action brought on 4 April 2012 — Pri v OHIM — Belgravia Investment Group (PRONOKAL)

(Case T-159/12)

2012/C 194/36

Language in which the application was lodged: Spanish

Parties

Applicant: Pri SA (Clémency, Luxembourg) (represented by: C. Marí Aguilar and F.J. Márquez Martín, lawyers)

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

Other party to the proceedings before the Board of Appeal: Belgravia Investment Group Ltd (Tortola, Islas Vírgenes Británicas)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 December 2011 in Case R 311/2011-2 which dismissed the action brought by Pri SA and granted, in part, the registration of Community trade mark No 57644099 ‘PRONOKAL’ in Classes 5, 29, 30 and 32, of which BELGRAVIA is the proprietor, and reject in its entirety the registration of (BELGRAVIA’s) Community trade mark No 5744099 ‘PRONOKAL’ in Classes 5, 29, 30 and 32 for infringement of the rights of Pri SA;

—	order the defendant to pay the costs, in accordance with Article 87(2) and (3) of the Rules of Procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Belgravia Investment Group Ltd

Community trade mark concerned: word mark ‘PRONOKAL’ for goods in Classes 5, 29, 30 and 32 — Trade mark application No 5744099

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

Mark or sign cited in opposition: Spanish word mark and trade name ‘PRONOKAL’ for goods in Class 30

Decision of the Opposition Division: rejection in part of the opposition and registration in part of the mark applied for

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 8(2)(c) of Regulation No 207/2009

30.6.2012

Official Journal of the European Union

C 194/22

Action brought on 11 April 2012 — Free v OHIM — Conradi + Kaiser (FreeLounge)

(Case T-161/12)

2012/C 194/37

Language in which the application was lodged: French

Parties

Applicant: Free (Paris, France) (represented by: Y. Coursin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Conradi + Kaiser GmbH (Kleinmaischeid, Germany)

Form of order sought

The applicant claims that the Court should:

—	annul in part the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 January 2012 in Case R 437/2011-2;

—	rule that the application for registration of the disputed mark should be rejected in its entirety on the basis of Article 8(1)(b) of Regulation No 207/2009; and

—	order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, both before the Court and before OHIM.

Pleas in law and main arguments

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

Community trade mark concerned: the word mark ‘FreeLounge’ for goods and services in Classes 16, 35 and 41 — application for registration No 8442832

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

Mark or sign cited in opposition: the French figurative mark No 99785839 ‘free LA LIBERTÉ N’A PAS DE PRIX’ for goods and services in Classes 9 and 38; the French word mark No 1734391 ‘FREE’ for services in Class 38; the company name ‘FREE’ used in the course of trade in France; the domain name ‘FREE.FR’ used in the course of trade

Decision of the Opposition Division: rejection of the application for the Community trade mark

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009

30.6.2012

Official Journal of the European Union

C 194/22

Action brought on 10 April 2012 — Bolívar Cerezo v OHIM — Renovalia Energy (RENOVALIA)

(Case T-166/12)

2012/C 194/38

Language in which the application was lodged: Spanish

Parties

Applicant: Juan Bolívar Cerezo (Granada, Spain) (represented by: I.M. Barroso Sánchez-Lafuente, lawyer)

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

Other party to the proceedings before the Board of Appeal: Renovalia Energy, SA (Villarobledo, Spain)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the First Board of Appeal of 26 January 2012 of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 663/2011-1, resulting in the registration of Community trade mark No 8 631 814‘RENOVALIA’ for ‘Insurance; financial affairs; monetary affairs; real estate affairs’ in Class 36;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: Word mark ‘RENOVALIA’ for goods and services in Classes 11, 25, 35, 36, 37 and 41 — application for Community trade mark No 8 631 814

Proprietor of the mark or sign cited in the opposition proceedings: Renovalia Energy, SA

Mark or sign cited in opposition: Spanish word marks ‘RENOVA ENERGY’ and ‘RENOVAENERGY’ and trade name ‘RENOVALIA’ for services in Class 36

Decision of the Opposition Division: opposition upheld in part

Decision of the Board of Appeal: appeal dismissed

Pleas in law: There is a likelihood of confusion between the applicant’s priority Spanish mark No 2 715 975‘RENOVALIA’ and the opposing Spanish marks. An action for annulment is to be brought before the competent Spanish national court against the opposing Spanish marks, as a result of which those marks will no longer be able to be relied on to oppose the registration of the Community trade mark applied for

30.6.2012

Official Journal of the European Union

C 194/23

Action brought on 10 April 2012 — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE)

(Case T-170/12)

2012/C 194/39

Language in which the application was lodged: English

Parties

Applicant: Beyond Retro Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: S&K Garments, Inc. (New York, United States)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2012 joined cases R 493/2011-4 and R 548/2011-4; and

—	Order the Office and the other party to the proceedings before the Board of Appeal to bear their own costs and pay those of the applicant.

Pleas in law and main arguments

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

Community trade mark concerned: International Registration of the word mark ‘BEYOND VINTAGE’, for goods and services in classes 14, 18 and 25 — Community trade mark application No W 994046

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

Mark or sign cited in opposition: Community trade mark registration No 5629035 of the word mark ‘BEYOND RETRO’, for goods and services in classes 25 AND 35

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the applicant’s appeal in case R 548/2011-4 and annulled the decision of the opposition division in case R 493/2011-4

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

30.6.2012

Official Journal of the European Union

C 194/23

Action brought on 13 April 2012 — Brauerei Beck v OHIM — Aldi (Be Light)

(Case T-172/12)

2012/C 194/40

Language in which the application was lodged: English

Parties

Applicant: Brauerei Beck GmbH & Co. KG (Bremen, Germany) (represented by: G. Hasselblatt and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 January 2012 in case R 2258/2010-1;

—	Order the defendant to bear its own costs as well as the costs of the applicant;

—	Order the other party to the proceedings before the Board of Appeal to bear its own costs, in the event it intervenes before the General Court.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Be Light’, for goods in classes 29, 30 and 32 — Community trade mark application No 7165351

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

Mark or sign cited in opposition: Community trade mark registration No 135285 of the word mark ‘BECK’s’, for goods in class 32

Decision of the Opposition Division: Upheld the opposition for all the contested goods in class 32 and allowed the contested trade mark to proceed for the remaining goods

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.

30.6.2012

Official Journal of the European Union

C 194/24

Action lodged on 30 April 2012 — Breyer v Commission

(Case T-188/12)

2012/C 194/41

Language of the proceedings: German

Parties

Applicant: Patrick Breyer (Wald-Michelbach, Germany) (represented by: M. Starostik, lawyer)

Defendant: European Commission

Form of order sought by the applicant

—	Annul the Decision of the Commission of 16 March 2012 on Az. Ares(2012)313186;

—	Annul the Decision of the Commission of 3 April 2012 on Az. Ares(2012)399467 in so far as access to the written submissions of Austria in proceedings C-189/09 has not been granted;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant claims with regard to the Decision of the Commission of 16 March 2012:

First plea in law, alleging incorrect application of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) (protection of legal advice)

—

According to the applicant, it does not adversely affect the protection of legal advice to publish legal opinion Ares(2010) 828204 of the Commission’s legal service, which discusses the question of whether Directive 2006/24/EC (2) can be amended so that it is left to Member States of the European Union whether or not to ‘retain’ telecommunications data of all citizens without suspicion and cause for a hypothetical case of need.

—	In any case, the public interest outweighs the knowledge of the opinion.

Second plea in law, alleging incorrect application of Article 4(3) first sub paragraph of Regulation No 1049/2001 (protection of the decision-making process)

—	According to the applicant, it does not adversely affect the protection of the decision-making process of the Commission to publish the legal opinion mentioned above of the Commission’s legal service.

—	In any case, the public interest outweighs the knowledge of the opinion.

In support of the action, with regard to the Decision of the Commission of 3 April 2012, the applicant pleads the incorrect application of Article 2(3) of Regulation No 1049/2001. In that regard, the applicant claims that, contrary to the view of the Commission, the written submissions of a Member State (here: Austria) to the European Court of Justice (here: in proceedings C-189/09), copies of which the Commission received as a party to the proceedings, are subject to the scope of application of Regulation No 1049/2001.

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

(2) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).

30.6.2012

Official Journal of the European Union

C 194/25

Action brought on 25 April 2012 — Tomana and Others v Council and Commission

(Case T-190/12)

2012/C 194/42

Language of the case: English

Parties

Applicants: Johannes Tomana (Harare, Zimbabwe); Titus Mehliswa Johna Abu Basutu (Harare); Happyton Mabhuya Bonyongwe (Harare); Flora Buka (Harare); Wayne Bvudzijena (Harare); David Chapfika (Harare); George Charamba (Harare); Faber Edmund Chidarikire (Harare); Tinaye Chigudu (Harare); Aeneas Soko Chigwedere (Harare); Phineas Chihota (Harare); Augustine Chihuri (Harare); Patrick Anthony Chinamasa (Harare); Edward Takaruza Chindori-Chininga (Harare); Joseph Chinotimba (Harare); Tongesai Shadreck Chipanga (Harare); Augustine Chipwere (Harare); Constantine Chiwenga (Harare); Ignatius Morgan Chiminya Chombo (Harare); Martin Dinha (Harare); Nicholas Tasunungurwa Goche (Harare); Gideon Gono (Harare); Cephas T. Gurira (Harare); Stephen Gwekwerere (Harare); Newton Kachepa (Harare); Mike Tichafa Karakadzai (Harare); Saviour Kasukuwere (Harare); Jawet Kazangarare (Harare); Sibangumuzi Khumalo (Harare); Nolbert Kunonga (Harare); Martin Kwainona (Harare); R. Kwenda (Harare); Andrew Langa (Harare); Musarashana Mabunda (Harare); Jason Max Kokerai Machaya (Harare); Joseph Mtakwese Made (Harare); Edna Madzongwe (Harare); Shuvai Ben Mahofa (Harare); Titus Maluleke (Harare); Paul Munyaradzi Mangwana (Harare); Reuben Marumahoko (Harare); G. Mashava (Harare); Angeline Masuku (Harare); Cain Ginyilitshe Ndabazekhaya Mathema (Harare); Thokozile Mathuthu (Harare); Innocent Tonderai Matibiri (Harare); Joel Biggie Matiza (Harare); Brighton Matonga (Harare); Cairo Mhandu (Harare); Fidellis Mhonda (Harare); Amos Bernard Midzi (Harare); Emmerson Dambudzo Mnangagwa (Harare); Kembo Campbell Dugishi Mohadi (Harare); Gilbert Moyo (Harare); Jonathan Nathaniel Moyo (Harare); Sibusio Bussie Moyo (Harare); Simon Khaya Moyo (Harare); S. Mpabanga (Harare); Obert Moses Mpofu (Harare); Cephas George Msipa (Harare); Henry Muchena (Harare); Olivia Nyembesi Muchena (Harare); Oppah Chamu Zvipange Muchinguri (Harare); C. Muchono (Harare); Tobaiwa Mudede (Harare); Isack Stanislaus Gorerazvo Mudenge (Harare); Columbus Mudonhi (Harare); Bothwell Mugariri (Harare); Joyce Teurai Ropa Mujuru (Harare); Isaac Mumba (Harare); Simbarashe Simbanenduku Mumbengegwi (Harare); Herbert Muchemwa Murerwa (Harare); Munyaradzi Musariri (Harare); Christopher Chindoti Mushohwe (Harare); Didymus Noel Edwin Mutasa (Harare); Munacho Thomas Alvar Mutezo (Harare); Ambros Mutinhiri (Harare); S. Mutsvunguma (Harare); Walter Mzembi (Harare); Morgan S. Mzilikazi (Harare); Sylvester Nguni (Harare); Francis Chenayimoyo Dunstan Nhema (Harare); John Landa Nkomo (Harare); Michael Reuben Nyambuya (Harare); Magadzire Hubert Nyanhongo (Harare); Douglas Nyikayaramba (Harare); Sithembiso Gile Glad Nyoni (Harare); David Pagwese Parirenyatwa (Harare); Dani Rangwani (Harare); Engelbert Abel Rugeje (Harare); Victor Tapiwe Chashe Rungani (Harare); Richard Ruwodo (Harare); Stanley Urayayi Sakupwanya (Harare); Tendai Savanhu (Harare); Sydney Tigere Sekeramayi (Harare); Lovemore Sekeremayi (Harare); Webster Kotiwani Shamu (Harare); Nathan Marwirakuwa Shamuyarira (Harare); Perence Samson Chikerema Shiri (Harare); Etherton Shungu (Harare); Chris Sibanda (Harare); Jabulani Sibanda (Harare); Misheck Julius Mpande Sibanda (Harare); Phillip Valerio Sibanda (Harare); David Sigauke (Harare); Absolom Sikosana (Harare); Nathaniel Charles Tarumbwa (Harare); Edmore Veterai (Harare); Patrick Zhuwao (Harare); Paradzai Willings Zimondi (Harare); Cold Comfort Farm Cooperative Trust (Harare); Comoil (Private) Ltd (Harare); Divine Homes (Private) Ltd (Harare); Famba Safaris (Private) Ltd (Harare); Jongwe Printing and Publishing Company (Private) Ltd (Harare); M & S Syndicate (Private) Ltd (Harare); Osleg (Private) Ltd (Harare); Swift Investments (Private) Ltd (Harare); Zidco Holdings (Private) Ltd (Harare); Zimbabwe Defence Industries (Private) Ltd (Harare); Zimbabwe Mining Development Corp. (Harare) (represented by: D. Vaughan, QC (Queen’s Counsel), M. Lester and R. Lööf, Barristers, and M. O’Kane, Solicitor)

Defendants: European Commission, Council of the European Union

Form of order sought

—	Annul Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), in so far as it concerns the applicants;

—	Annul Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2012 L 49, p. 2), in so far as it concerns the applicants;

—	Annul Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 54, p. 20), in so far as it concerns the applicants; and

—	Order the defendants to pay the costs of the applicants.

Pleas in law and main arguments

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

First plea in law, alleging that the defendants have included individuals and entities without a proper legal basis for doing so. Neither the Council nor the Commission has the power to impose restrictive measures on non-state actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe. The unsubstantiated allegations are in many cases alleged to have taken place even before the Government of National Unity was formed. The institutions have acted beyond their limited competence in penal matters, and the measures in question are inappropriate and disproportionate to any legitimate Common Foreign and Security Policy objective.

Second plea in law, alleging that the defendants erred manifestly in considering that the criteria for listing set out in the contested measures were fulfilled, because:

—	The defendants were not lawfully entitled to include applicants on the sole basis of assertions that they are a ZANU-PF member of the Government of Zimbabwe or an associate of such a person; and

—	The defendants were not lawfully entitled to include applicants on the basis of vague unsupported allegations of misconduct stated to have taken place in the past, in many cases before the Government of National Unity was formed.

3.	Third plea in law, alleging that the defendants failed to give adequate or sufficient reasons for including individuals and entities in the contested measures.

Fourth plea in law, alleging that the defendants failed to safeguard the applicants’ rights of defence and to effective judicial review, in that:

—	The defendants provided no particulars or evidence in support of their vague assertions of serious misconduct, and

—	The defendants provided no opportunity for the applicants to comment on the case and evidence against them.

5.	Fifth plea in law, alleging that the defendants infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, reputation and private and family life.

30.6.2012

Official Journal of the European Union

C 194/26

Action brought on 2 May 2012 — PAN Europe v Commission

(Case T-192/12)

2012/C 194/43

Language of the case: English

Parties

Applicant: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: J. Rutteman, lawyer)

Defendant: European Commission

Form of order sought

—

Declare the Commission’s Decision of 9 March 2012, which found a request made by the applicant for internal review to be inadmissible, contrary to Regulation (EC) No 1367/2006/EC (1) and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’);

—	Annul the Commission’s Decision of 9 March 2012;

—	Instruct the Commission to assess, nonetheless, the substance of the request for internal review, within a period of time determined by the Court; and

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

Pleas in law and main arguments

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

1.	First plea in law, alleging that the defendant erred when it found that the applicant did not comply with the conditions of eligibility set out in Article 11 of Regulation (EC) No 1367/2006, as the applicant already existed for more than two years when it made its request for internal review.

Second plea in law, alleging that the defendant erred when it stated that Implementing Regulation (EU) No 1143/2011 (2) cannot be considered an administrative act within the meaning of Article 10 of Regulation (EC) No 1367/2006, as it is defined in Article 2(1)(g) of that Regulation, as the decision to approve prochloraz is sufficiently individual in its effects and content to make it an administrative act as is meant in Article 10(1) of Regulation (EC) No 1367/2006.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)

(2) Commission Implementing Regulation (EU) No 1143/2011 of 10 November 2011 approving the active substance prochloraz, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 and Commission Decision 2008/934/EC (OJ 2011 L 293, p. 26)

30.6.2012

Official Journal of the European Union

C 194/26

Action brought on 8 May 2012 — MIP Metro v OHIM — Holsten-Brauerei (H)

(Case T-193/12)

2012/C 194/44

Language in which the application was lodged: German

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Holsten-Brauerei AG (Hamburg, Germany)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2012 in Case R 2340/2010-1 on the basis of incompatibility with Article 8(1)(b) of Regulation (EC) No 40/94 on the Community Trade Mark, in so far as it upheld the opposition against the extension of protection of international registration No 984 017;

—	order the defendant to pay the costs, including the costs of the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the international registration which has effect in the European Union of a figurative mark representing an escutcheon with the letter ‘H’ for goods in Class 32 — No 984 017

Proprietor of the mark or sign cited in the opposition proceedings: Holsten-Brauerei AG

Mark or sign cited in opposition: the German figurative mark representing a knight on horseback with a shield bearing the letter ‘H’ for goods in Class 32

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009

30.6.2012

Official Journal of the European Union

C 194/27

Appeal brought on 11 May 2012 by Luigi Marcuccio against the order of the Civil Service Tribunal of 29 February 2012 in Case F-3/11, Marcuccio v Commission

(Case T-207/12 P)

2012/C 194/45

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

—	Annul in its entirety and without exception whatsoever the order under appeal;

—	Grant all the appellant’s claims in the proceedings at first instance under appeal;

—	Order the defendant to pay to the appellant all the costs incurred by him in the appeal proceedings;

—	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 in the preceding paragraphs.

Pleas in law and main arguments

The present appeal is brought against the order of 29 February 2012 in Case F-3/11 rejecting as manifestly inadmissible an action seeking, first, annulment of the alleged refusal on the part of the European Commission to place a document on the file relating to his accident and, second, an order that the Commission pay to the appellant the sum of EUR 1 000 by way of compensation for the damage alleged.

The appellant relies on two grounds of appeal.

First ground, alleging absolute failure to state reasons for the ruling that the action was manifestly inadmissible and manifest uncertainty, inconsistent reasoning, distortion and misrepresentation of the facts, self-evident, illogical, irrelevant and unreasonable reasoning, infringement of the obligation of clare loqui, failure to rule on one of the appellant’s claims, and incorrect and unreasonable interpretation and application of:

Articles 26 and 26a of the Staff Regulations of Officials of the European Union;

the rules of law relating to the concept of an actionable measure (in particular, at paragraphs 30 to 47 of the order under appeal);

the rules of law concerning the processing of and access by the individual to personal data affecting him which is held by a European Union institution;

2.	Second ground, alleging that the court at first instance’s rulings on costs are unlawful (between paragraphs 47 and 48 of the order under appeal).

30.6.2012

Official Journal of the European Union

C 194/28

Action brought on 15 May 2012 — ZZ v European Commission

(Case F-54/12)

2012/C 194/47

Language of the case: French

Parties

Applicant: ZZ (represented by: M. Condinanzi, D. Bono and C.A. Chiorino, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision of the selection board of competition EPSO/AST/117/11 not to admit the applicant to the second stage of that competition on the ground that he did not meet the admission requirements laid down in the competition notice.

Form of order sought

—

Annul the decision taken by the EPSO selection board refusing the applicant admission to the second stage of open competition EPSO/AST/117/11 — Assistants in the secretarial field (AST 1) on the ground of the alleged failure to meet the admission requirements laid down in section III of Notice of open competition EPSO/AST/117/11 and, in particular, because he does not have a level of post-secondary education in the secretarial field attested by a diploma or, alternatively, a level of secondary education attested by a diploma giving access to post-secondary education followed by professional experience in the secretarial field of at least three years, the tasks in which are directly linked to the secretarial function as described in Title 1 of the competition notice;

—	Annul all other subsequent acts and, if necessary, all other measures which the selection board will adopt in connection with the exclusion of the applicant from the competition in question;

—

In the alternative, in the event that it may not be possible for the applicant to take part in the second stage of the competition, order the defendant to pay the applicant the provisional sum ex aequo et bono of EUR 10 000 as compensation for material and non-material loss and in respect of harm to his career, together with late-payment interest at the legal rate with effect from the lodging of the action.

—	Order the Commission to pay the costs.

		ISSN 1977-091X doi:10.3000/1977091X.C_2012.194.eng
Official Journal of the European Union		C 194

English edition	Information and Notices	Volume 55 30 June 2012

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2012/C 194/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 184, 23.6.2012	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2012/C 194/02	Case C-39/10: Judgment of the Court (Fourth Chamber) of 10 May 2012 — European Commission v Republic of Estonia (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Income tax — Allowance — Retirement pensions — Effect on small pensions — Discrimination between resident and non-resident taxpayers)	2

2012/C 194/03	Joined Cases C-357/10 to C-359/10: Judgment of the Court (Second Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10), Irtel Srl (C-359/10) v Comune di Baranzate (C-357/10 and C-358/10), Comune di Venegono Inferiore (C-359/10) (Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC — Freedom of establishment — Freedom to provide services — Directive 2006/123/EC — Articles 15 and 16 — Concession relating to the assessment, verification and collection of taxes and other local authority revenue — National legislation — Minimum share capital — Obligation)	2

2012/C 194/04	Case C-368/10: Judgment of the Court (Third Chamber) of 10 May 2012 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directive 2004/18/EC — Procedures for the award of public works contracts, public supply contracts and public service contracts — Contract for the supply, installation and maintenance of dispensing machines for hot drinks, and the supply of tea, coffee and other ingredients — Article 23(6) and 23(8) — Technical specifications — Article 26 — Conditions for performance of the contract — Article 53(1) — Criteria for award of the contracts — Most economically advantageous tender — Products derived from organic agriculture and fair trade — Use of labels in the formulation of the technical specifications and the award criteria — Article 39(2) — Concept of additional information — Article 2 — Principles for award of contracts — Principle of transparency — Articles 44(2) and 48 — Verification of the suitability and choice of participants — Minimum level of technical or professional abilities — Compliance with criteria of sustainability of purchases and socially responsible business)	3

2012/C 194/05	Case C-100/11 P: Judgment of the Court (First Chamber) of 10 May 2012 — Helena Rubinstein, L’Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(5) — Community word marks BOTOLIST and BOTOCYL — Community and national figurative and word marks BOTOX — Declaration of invalidity — Relative grounds for refusal — Damage to reputation)	4

2012/C 194/06	Joined Cases C-338/11 to C-347/11: Judgment of the Court (Third Chamber) of 10 May 2012 (reference for a preliminary ruling from the Tribunal administratif de Montreuil (France)) — Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11) v Directeur des résidents à l’étranger et des services généraux and Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11), Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka (C-340/11), Allianz Global Investors Kapitalanlagegesellschaft mbH, on behalf of DBI-Fonds APT no 737 (C-341/11), SICAV KBC Select Immo (C-342/11), SGSS Deutschland Kapitalanlagegesellschaft mbH (C-343/11), International Values Series of the DFA Investment Trust Co. (C-344/11), Continental Small Co. Series of the DFA Investment Trust Co. (C-345/11), SICAV GA Fund B (C-346/11), Generali Investments Deutschland Kapitalanlagegesellschaft mbH, on behalf of AMB Generali Aktien Euroland (C-347/11) v Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État (Articles 63 TFEU and 65 TFEU — Undertakings for collective investments in transferable securities (UCITS) — Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and dividends paid to resident UCITS, not subject to such tax — Whether it is necessary, for the purpose of determining whether the national measure is in conformity with the free movement of capital, to take account of the situation of shareholders — No such need)	4

2012/C 194/07	Case C-370/11: Judgment of the Court (Sixth Chamber) of 10 May 2012 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Articles 36 and 40 of the EEA Agreement — Discriminatory taxation of the capital gains obtained on the repurchase of shares in collective investment undertakings established in Norway or Iceland and not authorised under Directive 85/611/EEC)	5

2012/C 194/08	Case C-92/12: Judgment of the Court (Second Chamber) of 26 April 2012 (Reference for a preliminary ruling from the High Court of Ireland) — Health Service Executive v SC, AC (Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility — Regulation (EC) No 2201/2003 — Child habitually resident in Ireland, where the child has been placed in care on many occasions — Child’s behaviour aggressive and placing herself at risk — Judgment ordering placement of the child in a secure care institution in England — Material scope of the regulation — Article 56 — Procedures for consultation and consent — Obligation to recognise or declare enforceable the decision to place the child in a secure care institution — Provisional measures — Urgent preliminary ruling procedure)	5

2012/C 194/09	Case C-529/10: Order of the Court (Eighth Chamber) of 29 March 2012 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Safilo Spa (Article 104(3), first subparagraph, of the Rules of Procedure — Direct taxation — Conclusion of proceedings pending before the court giving judgment at final instance in tax matters — Abuse of rights — Article 4(3) TEU — Freedoms guaranteed by the Treaty — Principle of non-discrimination — State aid — Obligation to ensure the effective application of European Union law)	6

2012/C 194/10	Case C-167/11 P: Order of the Court of 22 March 2012 — Cantiere navale De Poli SpA v European Commission (Appeal — Article 119 of the Rules of Procedure — State aid — Incompatibility with the common market — Commission Decision — Alteration to existing aid — Regulation (EC) No 794/2004 — Regulation (EC) No 1177/2002 — Temporary defensive mechanism for shipbuilding)	7

2012/C 194/11	Case C-200/11 P: Order of the Court of 22 March 2012 — Italian Republic v European Commission (Appeal — Article 119 of the Rules of Procedure — State aid — Incompatibility with the common market — Commission decision — Action for annulment — Regulation (EC) No 659/1999 — Article 1(c) — Alteration of existing aid — Regulation (EC) No 794/2004 — Article 4(1) — Temporary defensive mechanism for shipbuilding)	7

2012/C 194/12	Case C-333/11: Order of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the Hof van Cassatie van België, Belgium) — Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat (Article 104(3), first subparagraph, of the Rules of Procedure — TIR Convention — Community Customs Code — Excise duties — Transport carried out under cover of a TIR carnet — Unlawful unloading — Determination of the place of the offence — Recovery of customs and excise duties — Jurisdiction)	7

2012/C 194/13	Case C-334/11 P: Order of the Court (Fifth Chamber) of 29 March 2012 — Lancôme parfums et beauté & Cie v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Focus Magazin Verlag GmbH (Appeal — Community trade mark — Word mark ACNO FOCUS — Opposition by the proprietor of the national word mark FOCUS — Refusal of registration — Article 43(2) and (3) of Regulation (EC) No 40/94 — Earlier mark registered for not less than five years)	8

2012/C 194/14	Case C-156/12: Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 30 March 2012 — Freistaat Bayern v GREP GmbH	9

2012/C 194/15	Case C-167/12: Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 — C.D. v S.T.	9

2012/C 194/16	Case C-172/12 P: Appeal brought on 5 April 2012 by EI du Pont de Nemours and Company against the judgment of the General Court (Seventh Chamber) delivered on 2 February 2012 in Case T-76/08: EI du Pont de Nemours and Company and others v European Commission	10

2012/C 194/17	Case C-175/12: Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 13 April 2012 — Sandler AG v Hauptzollamt Regensburg	10

2012/C 194/18	Case C-180/12: Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bulgaria) lodged on 16 April 2012 — Stoilov i Ko EOOD v Nachalnik na Mitnitsa Stolichna	11

2012/C 194/19	Case C-183/12 P: Appeal brought on 18 April 2012 by Chafiq Ayadi against the order of the General Court (Second Chamber) delivered on 31 January 2012 in Case T-527/09: Chafiq Ayadi v European Commission	12

2012/C 194/20	Case C-187/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Società Fondiaria Industriale Romagnola (SFIR) SpA v Ministero delle Politiche Agricole Alimentari e Forestali	13

2012/C 194/21	Case C-188/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Italia Zuccheri S.p.A. and Co.Pro.B. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali	13

2012/C 194/22	Case C-189/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2012 — Eridania Sadam S.p.A. v AGEA and Ministero delle Politiche Agricole Alimentari e Forestali	14

2012/C 194/23	Case C-198/12: Action brought on 26 April 2012 — European Commission v Republic of Bulgaria	14

2012/C 194/24	Case C-211/12: Reference for a preliminary ruling from the Corte di appello di Roma (Italy) lodged on 3 May 2012 — Martini SpA v Ministero delle Attività Produttive	15

2012/C 194/25	Case C-214/12 P: Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012	16

2012/C 194/26	Case C-223/12 P: Appeal brought on 14 May 2012 by the Republic of Austria against the judgment of the General Court (Sixth Chamber) delivered on 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission	17

	General Court
2012/C 194/27	Case T-344/08: Judgment of the General Court of 22 May 2012 — EnBW Energie Baden-Württemberg v Commission (Access to documents — Regulation (EC) No 1049/2001 — Administrative file relating to cartel proceedings — Refusal of access — Exception relating to protection of the purpose of investigations — Exception concerning the protection of the commercial interests of a third party — Exception concerning the protection of the decision-making process — Obligation of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the request for access)	18

2012/C 194/28	Case T-6/10: Judgment of the General Court of 22 May 2012 — Sviluppo Globale v Commission (Public service contracts — Call for tenders — Support for the customs and tax authorities in Kosovo — Rejection of a tenderer’s bid — Act not amenable to review — Confirmatory act — Inadmissibility — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the call for tenders — Partial refusal of access — Exception concerning the protection of the commercial interests of a third party — Inadequate statement of reasons)	18

2012/C 194/29	Case T-300/10: Judgment of the General Court of 22 May 2012 — Internationaler Hilfsfonds v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to contract LIEN 97 2011 — Partial refusal of access — Determination of the subject-matter of the initial application — Exception relating to the protection of privacy and the integrity of the individual — Exception relating to protection of the decision-making process — Principle of sound administration — Concrete and individual examination — Duty to state reasons)	19

2012/C 194/30	Case T-345/10: Judgment of the General Court (Fourth Chamber) of 22 May 2012 — Portugal v Commission (EAGGF — Guidance Section — Reduction of financial assistance — Measures to support investments in agricultural holdings — Effectiveness of controls)	19

2012/C 194/31	Case T-580/10: Judgment of the General Court of 16 May 2012 — Wohlfahrt v OHIM — Ferrero (Kindertraum) (Community trade mark — Opposition proceedings — Application for Community word mark Kindertraum — Earlier national word mark Kinder — Relative ground for refusal — Proof of use of the earlier trade mark — Article 42(2) of Regulation (EC) No 207/2009 — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009)	19

2012/C 194/32	Case T-184/11 P: Judgment of the General Court of 15 May 2012 — Nijs v Court of Auditors (Appeal — Civil service — Officials — Disciplinary measures — Disciplinary procedure — Removal from post with entitlement to old-age pension — Articles 22a and 22b of the Staff Regulations — Requirement for precision in the appeal — New plea in law — Effective judicial protection — Article 47 of the Charter of Fundamental Rights — No obligation on the court to raise of its own motion a plea alleging infringement of the principle that action must be taken within a reasonable period)	20

2012/C 194/33	Case T-280/11: Judgment of the General Court of 15 May 2012 — Ewald v OHIM — Kin Cosmetics (Keen) (Community trade mark — Opposition proceedings — Application for the Community word mark Keen — Community figurative mark KIN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)	20

2012/C 194/34	Case T-144/12: Action brought on 30 March 2012 — Comsa v OHIM — COMSA (COMSA)	20

2012/C 194/35	Case T-149/12: Action brought on 2 April 2012 — Investrónica v OHIM — Olympus Imaging (MICRO)	21

2012/C 194/36	Case T-159/12: Action brought on 4 April 2012 — Pri v OHIM — Belgravia Investment Group (PRONOKAL)	21

2012/C 194/37	Case T-161/12: Action brought on 11 April 2012 — Free v OHIM — Conradi + Kaiser (FreeLounge)	22

2012/C 194/38	Case T-166/12: Action brought on 10 April 2012 — Bolívar Cerezo v OHIM — Renovalia Energy (RENOVALIA)	22

2012/C 194/39	Case T-170/12: Action brought on 10 April 2012 — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE)	23

2012/C 194/40	Case T-172/12: Action brought on 13 April 2012 — Brauerei Beck v OHIM — Aldi (Be Light)	23

2012/C 194/41	Case T-188/12: Action lodged on 30 April 2012 — Breyer v Commission	24

2012/C 194/42	Case T-190/12: Action brought on 25 April 2012 — Tomana and Others v Council and Commission	25

2012/C 194/43	Case T-192/12: Action brought on 2 May 2012 — PAN Europe v Commission	26

2012/C 194/44	Case T-193/12: Action brought on 8 May 2012 — MIP Metro v OHIM — Holsten-Brauerei (H)	26

2012/C 194/45	Case T-207/12 P: Appeal brought on 11 May 2012 by Luigi Marcuccio against the order of the Civil Service Tribunal of 29 February 2012 in Case F-3/11, Marcuccio v Commission	27

	European Union Civil Service Tribunal
2012/C 194/46	Case F-109/10: Judgment of the Civil Service Tribunal (First Chamber) of 22 May 2012 — AU v European Commission (Civil Service — Contractual agents — Pensions — Severance grant)	28

2012/C 194/47	Case F-54/12: Action brought on 15 May 2012 — ZZ v European Commission	28

2012/C 194/48	Case F-27/08 RENV: Order of the Civil Service Tribunal of 15 May 2012 — Simões Dos Santos v OHIM	28