(Appeal - State aid - Waiver of a tax claim - Exemption from corporation tax - Increase in share capital - Conduct of a State acting as a prudent private investor in a market economy - Criteria to distinguish between the State as shareholder and the State exercising public power - Definition of ‘reference private investor’ - Principle of equal treatment - Burden of proof)

2012/C 217/02

Language of the case: French

Parties

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

Other parties to the proceedings: Électricité de France (EDF) (represented by: M. Debroux, avocat), French Republic (represented by: G. de Bergues and J. Gstalter, acting as Agents), Iberdrola SA (represented by: J. Ruiz Calzado and É. Barbier de La Serre, avocats)

Supported by: EFTA Surveillance Authority (represented by: X. Lewis and B. Alterskjær, acting as Agents)

Re:

Appeal against the judgment of 15 December 2009, by which the General Court (Third Chamber) annulled Articles 3 and 4 of the decision of the Commission of 16 December 2003 on the State aid granted to EDF and the electricity and gas industries (C 68/2002, N 504/2003 and C 25/2003) — Aid granted in the form of a selective tax exemption linked to an increase in share capital during a recapitalisation of the undertaking — Conduct of a State acting as a prudent private investor in a market economy — Criteria to distinguish between the State as shareholder and the State exercising public power — Principle of equal tax treatment

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Commission to pay the costs;

3.	Orders the EFTA Surveillance Authority, the French Republic and Iberdrola SA to bear their own costs.

(1) OJ C 161, 19.6.2010.

21.7.2012

Official Journal of the European Union

C 217/2

Judgment of the Court (Grand Chamber) of 5 June 2012 (reference for a preliminary ruling from the Sąd Najwyższy — Poland) — Criminal proceedings against Łukasz Marcin Bonda

(Case C-489/10) (1)

(Common agricultural policy - Single area payment scheme - Regulation (EC) No 1973/2004 - Article 138(1) - Exclusion from receiving aid if the area declared is not correct - Administrative or criminal nature of that penalty - Rule against the overlapping of criminal penalties - Ne bis in idem principle)

2012/C 217/03

Language of the case: Polish

Referring court

Sąd Najwyższy

Party to the main criminal proceedings

Łukasz Marcin Bonda

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 138 of Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials (OJ 2004 L 345, p. 1) — Single area payment — Grant of aid excluded if the area declared is incorrect — Administrative or criminal nature of that penalty

Operative part of the judgment

Article 138(1) of Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that regulation and the use of land set aside for the production of raw materials must be interpreted as meaning that the measures provided for in the second and third subparagraphs of that provision, consisting in excluding a farmer from receiving aid for the year in which he made a false declaration of the eligible area and reducing the aid he can claim within the following three calendar years by an amount corresponding to the difference between the area declared and the area determined, do not constitute criminal penalties.

(1) OJ C 13, 15.1.2011.

21.7.2012

Official Journal of the European Union

C 217/3

Judgment of the Court (Fourth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by Insinööritoimisto InsTiimi Oy

(Case C-615/10) (1)

(Directive 2004/18/EC - Public contracts in the field of defence - Article 10 - Article 296(1)(b) EC - Protection of a Member State’s essential security interests - Trade in arms, munitions and war material - Product procured by a contracting authority specifically for military purposes - Existence, as regards that product, of a potential and largely identical civilian application - Tiltable turntable for carrying out electromagnetic measurements - Contract not put out to tender in accordance with the procedures provided for by Directive 2004/18)

2012/C 217/04

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Insinööritoimisto InsTiimi Oy,

party heard in the matter: Puolustusvoimat

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 10 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) and Article 346 TFEU — List of arms, munitions and war material adopted by Decision No 255/58 of the Council of 15 April 1958 — Scope of the directive — Material intended primarily for military use — Turntable equipment for electromagnetic measurements

Operative part of the judgment

Article 10 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, read in conjunction with Article 296(1)(b) EC, must be interpreted as authorising a Member State to set aside the procedures laid down by that directive in the case of a public contract awarded by a contracting authority in the field of defence for the acquisition of material which, although intended for specifically military purposes, also presents possibilities for essentially identical civilian applications only if that material, by virtue of its intrinsic characteristics, may be regarded as having been specially designed and developed, also as a result of substantial modifications, for such purposes, this being a matter for the referring court to determine.

(1) OJ C 72, 5.3.2011.

21.7.2012

Official Journal of the European Union

C 217/3

Judgment of the Court (Eighth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost

(Case C-27/11) (1)

(Reference for a preliminary ruling - Non-recognition in national law of the right to a judicial remedy in respect of decisions imposing a financial penalty and the deduction of points for certain breaches of road traffic regulations - Purely internal situation - Inadmissibility of the reference)

2012/C 217/05

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Anton Vinkov

Defendant: Nachalnik Administrativno-nakazatelna deynost

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 82(1)(a) TFEU and Article 91(1)(c) TFEU and Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16) — Interpretation of Articles 47, 48 and 52 of the Charter of Fundamental Rights of the European Union — Compatibility with EU law of national rules excluding the right to bring an action before a court challenging decisions relating to financial penalties following administrative offences in road traffic cases amounting to BGN 50

Operative part of the judgment

The reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria), made by decision of 27 December 2010 (Case C-27/11), is inadmissible.

(1) OJ C 145, 14.5.2011.

21.7.2012

Official Journal of the European Union

C 217/4

Judgment of the Court (Third Chamber) of 7 June 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA)

(Case C-39/11) (1)

(Free movement of capital - Articles 63 TFEU and 65 TFEU - Severance funds - Investment of assets - Investment funds established in another Member State - Investment in such funds permitted only when they are authorised to market their units within the national territory)

2012/C 217/06

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: VBV — Vorsorgekasse AG

Defendant: Finanzmarktaufsichtsbehörde (FMA)

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 63 et seq. TFEU — Free movement of capital — Severance funds investing mandatory contributions in respect of employed and self-employed persons aimed to finance severance sums — Legislation of a Member State restricting those investments to funds which have been authorised to be sold in that national territory

Operative part of the judgment

Article 63(1) TFEU must be interpreted as precluding national legislation which does not permit a severance fund, or the undertaking for collective investment created by that severance fund to manage its assets, to invest those assets in units of an investment fund established in another Member State unless that investment fund has been authorised to market its units within the national territory.

(1) OJ C 130, 30.4.2011.

21.7.2012

Official Journal of the European Union

C 217/4

Judgment of the Court (Eighth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — M.J. Bakker v Minister van Financiën

(Case C-106/11) (1)

(Social security for migrant workers - Legislation applicable - Worker holding Netherlands nationality working, for an employer established in the Netherlands, on board dredgers flying the Netherlands flag which operate outside the territory of the European Union - Residence in the territory of another Member State - Affiliation to the Netherlands social security system)

2012/C 217/07

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: M.J. Bakker

Defendant: Minister van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 1(a), 2 and 13(2)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English special edition, 1971(II), p. 416) — Worker with Netherlands nationality working on dredgers sailing outside the territory of the European Union under the Netherlands flag for an employer established in the Netherlands — Worker residing on the territory of another Member State — No affiliation to the Netherlands social security scheme

Operative part of the judgment

Article 13(2)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 307/1999 of 8 February 1999, must be interpreted as precluding a legislative measure of a Member State from excluding, from affiliation to the social security scheme of that Member State, a person in the position of the applicant in the main proceedings, who holds that Member State’s nationality but does not reside in it and is employed on board a dredger flying the flag of that Member State and operating outside the territory of the European Union.

(1) OJ C 160, 28.5.2011.

21.7.2012

Official Journal of the European Union

C 217/5

Judgment of the Court (Second Chamber) of 7 June 2012 (reference for a preliminary ruling from the Oberlandesgericht Innsbruck — Austria) — Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

(Case C-132/11) (1)

(Directive 2000/78/EC - Equal treatment in employment and occupation - Difference of treatment on grounds of age - Charter of Fundamental Rights of the European Union - General principles of European Union law - Collective agreement - Failure to take into account, for the grading on the salary scale of cabin crew members of an airline, professional experience acquired with another airline belonging to the same group of companies - Contract clause)

2012/C 217/08

Language of the case: German

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Applicant: Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Defendant: Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH

Re:

Reference for a preliminary ruling — Oberlandesgericht Innsbruck — Interpretation of Article 21 of the Charter of Fundamental Rights of the European Union, Article 6(1) and (3) TEU and Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Different treatment based on age — Collective agreement providing that, for the purposes of grading air stewards and stewardesses within a pay scale, the professional experience to be taken into account excludes professional experience acquired with another airline belonging to the same group — Whether a clause in an employment contract is not applicable owing to the horizontal direct effect of fundamental rights

Operative part of the judgment

Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a provision of a collective agreement which takes into account, for the purposes of grading in the employment categories provided for in that agreement and, therefore, determination of the level of pay, only the professional experience acquired as a cabin crew member of a specific airline, while excluding substantively identical experience acquired in the service of another airline belonging to the same group of companies.

(1) OJ C 186, 25.6.2011.

21.7.2012

Official Journal of the European Union

C 217/5

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 3 April 2012 — DMC Beteiligungsgesellschaft mbH v Finanzamt Hamburg-Mitte

(Case C-164/12)

2012/C 217/09

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: DMC Beteiligungsgesellschaft mbH

Defendant: Finanzamt Hamburg-Mitte

Questions referred

Is it compatible with Article 43 EC (or Article 49 TFEU) for a national provision to provide that, in the event of the contribution of partnership interests to a capital company, the business assets contributed must be assessed at their value as part of a going concern (and consequently, as a result of revealing undisclosed reserves, a capital gain arises for the transferor) where at the time of the non-cash contribution the Federal Republic of Germany has no right to tax in relation to the gain on the sale of the new company shares granted to the transferor in return for the contribution?

In the event that the first question must be answered in the negative: is the national provision compatible with Article 43 EC (or Article 49 TFEU) if the transferor is entitled to apply for the deferment, on an interest-free basis, of the tax arising as a consequence of revealing the undisclosed reserves, with the effect that the tax due on the gain may be paid in annual instalments, each of at least a fifth of the tax due, provided that the payment of the instalments is secured?

21.7.2012

Official Journal of the European Union

C 217/6

Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 19 April 2012 — Gábor Fekete v Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

(Case C-182/12)

2012/C 217/10

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Gábor Fekete

Defendant: Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

Question referred

Under Article 561(2) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (‘the implementing Regulation’) is authorisation granted by the owner of the means of transport established outside the (customs) territory sufficient to establish private use of the means of transport or is private use of the means of transport only possible in the framework of an employment relationship, and thus where provided for (by the owner) in the contract of employment?

(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.

21.7.2012

Official Journal of the European Union

C 217/6

Reference for a preliminary ruling from the Tribunal Judicial de Braga (Portugal) lodged on 23 April 2012 — Impacto Azul, Lda v BPSA 9 — Promoção e Desenvolvimento de Investimentos Imobiliários, SA and Others

(Case C-186/12)

2012/C 217/11

Language of the case: Portuguese

Referring court

Tribunal Judicial de Braga

Parties to the main proceedings

Applicant: Impacto Azul, Lda

Defendants: BPSA 9 — Promoção e Desenvolvimento de Investimentos Imobiliários, SA, Bouygues Imobiliária, SGPS, Lda, Bouygues Immobilier S.A., Aniceto Fernandes Viegas, Óscar Cabanez Rodriguez

Question referred

Is it contrary to Community law, in particular Article 49 TFEU, as interpreted by the Court of Justice of the European [Union], for the application of the rules in Article 501 of the [Portuguese Code of Commercial Companies] to undertakings having their seat in another Member State to be excluded pursuant to the rules contained in Article 481(2) of [that code]?

21.7.2012

Official Journal of the European Union

C 217/6

Action brought on 25 April 2012 — European Commission v French Republic

(Case C-193/12)

2012/C 217/12

Language of the case: French

Parties

Applicant: European Commission (represented by: B. Simon and J. Hottiaux, acting as Agents)

Defendant: French Republic

Form of order sought

—

Declare that, by failing to designate as vulnerable zones a number of zones characterised by the presence of surface and groundwater bodies which are, or may be, affected by excessive nitrate content and/or eutrophication, the French Republic has failed to fulfil its obligations under Article 3(1) and (4) of and Annex I to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, (1)

—	order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission complains that when the defendant carried out a revision of the vulnerable zones in 2007, its designation of those zones was not comprehensive, as it ought to have been under Article 3(1) and (4) of and Annex I to Directive 91/676/EEC.

The Commission complains in particular that the French authorities failed to designate 10 additional vulnerable zones and did not provide any specific information that might justify that omission.

(1) OJ 1991 L 375, p. 1.

21.7.2012

Official Journal of the European Union

C 217/7

Action brought on 26 April 2012 — European Commission v French Republic

(Case C-197/12)

2012/C 217/13

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and C. Soulay, Agents)

Defendant: French Republic

Form of order sought

—

declare that, by not making the exemption from VAT of transactions referred to in Article 262, Part II(2), (3), (6) and (7), of the Code général des impôts conditional on the requirement of use for navigation on the high seas, in respect of vessels carrying passengers for reward and those used for the purpose of commercial activities, the French Republic has failed to fulfil its obligations under the VAT Directive, (1) in particular Article 148(a), (c) and (d) thereof;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission claims that the exemption from VAT of the transactions referred to in Article 262, Part II(2), (3), (6) and (7), of the Code général des impôts (French General Tax Code) (CGI) was not made conditional on the requirement of use for navigation on the high seas, in respect of vessels carrying passengers for reward and those used for the purpose of commercial activities. That condition that vessels must be used on the high seas was added to the legislative provisions regulating VAT in France in response to the Commission’s reasoned opinion addressed to the national authorities. However, the bringing of Article 262, Part II(2), of the CGI into line with the VAT directive was rendered ineffective by an explanatory ministerial ruling binding on the administrative authorities, published subsequent to the legislative amendment, which does not mention the condition that vessels must be used for navigation on the high seas, although this was provided for by the legislation.

In the Commission’s view, none of the arguments put forward by the defendant in the course of the pre-litigation procedure, concerning, inter alia, the strict interpretation of Article 148(a) of the VAT Directive and the overly restrictive interpretation of the condition that vessels must be used for navigation on the high seas, can justify the failure to comply with the provisions of the aforementioned directive. Furthermore, as regards Article 131 of Directive 2006/112/EC, relied on by the French authorities, this cannot justify a derogation from the principle that exemptions must be subject to strict interpretation.

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

21.7.2012

Official Journal of the European Union

C 217/7

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2012 — Minister voor Immigratie en Asiel v X

(Case C-199/12)

2012/C 217/14

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Immigratie en Asiel

Other party: X

Questions referred

Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304; ‘the Directive’)?

If the first question is to be answered in the affirmative: which homosexual activities fall within the scope of the Directive and, in the case of acts of persecution in respect of those activities and if the other requirements are met, can that lead to the granting of refugee status? That question encompasses the following subquestions:

(a)	Can foreign nationals with a homosexual orientation be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution?

(b)

If the previous question is to be answered in the negative, can foreign nationals with a homosexual orientation be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals?

(c)	If, in that regard, a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined?

Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, as set out in the Offences against the Person Act 1861 of Sierra Leone, constitute an act of persecution within the meaning of Article 9(1)(a), read in conjunction with Article 9(2)(c) of the Directive? If not, under what circumstances would that be the case?

21.7.2012

Official Journal of the European Union

C 217/8

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2012 — Minister voor Immigratie en Asiel, the other party being Y

(Case C-200/12)

2012/C 217/15

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Immigratie en Asiel

Other party: Y

Questions referred

(a)	Can foreign nationals with a homosexual orientation be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution?

(b)

(c)	If, in that regard, a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined?

Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, as set out in the Penal Code Act of Uganda, constitute an act of persecution as referred to in Article 9(1)(a), read in conjunction with Article 9(2)(c) of the Directive? If not, under what circumstances would that be the case?

21.7.2012

Official Journal of the European Union

C 217/8

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2012 — Z v Minister voor Immigratie en Asiel

(Case C-201/12)

2012/C 217/16

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Z

Respondent: Minister voor Immigratie en Asiel

Questions referred

(a)	Can foreign nationals with a homosexual orientation be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution?

(b)

(c)	If, in that regard, a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined?

Do the criminalisation of homosexual activities and the threat of imprisonment, which are discriminatory by nature, as set out in the Code Pénal of Senegal, constitute an act of persecution as referred to in Article 9(1)(a) [Or. 13], read in conjunction with Article 9(2)(c) of the Directive? If not, under what circumstances would that be the case?

21.7.2012

Official Journal of the European Union

C 217/9

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — Vodafone Omnitel Nv v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

(Case C-228/12)

2012/C 217/17

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Vodafone Omnitel Nv

Defendant: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.

21.7.2012

Official Journal of the European Union

C 217/9

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — Fastweb SpA v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-229/12)

2012/C 217/18

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni and Others

Question referred

21.7.2012

Official Journal of the European Union

C 217/10

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — WIND Telecomunicazioni SpA v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-230/12)

2012/C 217/19

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: WIND Telecomunicazioni SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni and Others

Question referred

21.7.2012

Official Journal of the European Union

C 217/10

(Case C-231/12)

2012/C 217/20

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Vodafone Omnitel Nv

Defendant: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

Question referred

21.7.2012

Official Journal of the European Union

C 217/10

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-232/12)

2012/C 217/21

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni and Others

Question referred

21.7.2012

Official Journal of the European Union

C 217/11

Reference for a preliminary ruling from the Tribunale della Spezia (Italy) lodged on 14 May 2012 — Simone Gardella v Istituto nazionale della previdenza sociale (INPS)

(Case C-233/12)

2012/C 217/22

Language of the case: Italian

Referring court

Tribunale della Spezia

Parties to the main proceedings

Applicant: Simone Gardella

Defendant: Istituto nazionale della previdenza sociale (INPS)

Questions referred

Must Articles 20, 45, 48 and 145 to 147 of the Treaty on the Functioning of the European Union (TFEU) and Article 15 of the Charter of Fundamental Rights of the European Union (CFEU) be interpreted as precluding national legislation or national administrative practice which do not permit a worker who is a national of a Member State to transfer to the pension scheme of an international body situated in the territory of another Member State of the European Union, where he works and is insured, the pension contributions credited to the social security scheme of his own State, where he was previously insured?

As a consequence of the circumstances set out in Question 1, should it be possible to exercise the right to transfer contributions even in the absence of any specific agreement between the Member State of which the worker is a national or the worker’s pension institution, on the one hand, and the international body on the other?’

21.7.2012

Official Journal of the European Union

C 217/11

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — Sky Italia s.r.l. v AGCOM

(Case C-234/12)

2012/C 217/23

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Sky Italia s.r.l.

Defendant: Autorità per le Garanzie nelle Comunicazioni (AGCOM)

Questions referred

Must Article 4 of Directive 2010/13/EU, (1) the general principle of equality and the rules of the Treaty on the Functioning of the European Union relating to the free movement of services, the right of establishment and the free movement of capital be interpreted as precluding the rules in Article 38(5) of Legislative Decree No 177/2005 which lay down shorter hourly advertising limits for pay-TV broadcasters than for free-to-air broadcasters?

Does Article 11 of the Charter of Fundamental Rights of the European Union, interpreted in the light of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, and does the principle of pluralism in the media, in particular, preclude the rules in Article 38(5) of Legislative Decree No 177/2005 which lay down shorter hourly advertising limits for pay-TV broadcasters than for free-to-air broadcasters, distorting competition and creating — or rather strengthening — dominant positions in the television advertising market?

(1) OJ 2010, L 95, p. 1.

21.7.2012

Official Journal of the European Union

C 217/11

Action brought on 16 May 2012 — European Commission v French Republic

(Case C-237/12)

2012/C 217/24

Language of the case: French

Parties

Applicant: European Commission (represented by: B. Simon and J. Hottiaux, Agents)

Defendant: French Republic

Form of order sought

The European Commission claims that the Court should:

—

declare that, by not guaranteeing correct and full implementation of all requirements laid down in Annexes II and III to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, (1) the French Republic has failed to fulfil its obligations under Article 5(4) of, and Annexes II (A.1, A.2, A.3 and A.5) and III (1.1, 1.2, 1.3 and 2) to, that directive;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission criticises the defendant on the ground that it has failed correctly and fully to implement all of the requirements laid down in Article 5(4) of, and in Annexes II (A.1, A.2, A.3 and A.5) and III (1.1, 1.2, 1.3 and 2) to, Directive 91/676/EEC. The Commission has doubts as to whether the national legislation complies with the European Union law relating to:

—	the periods during which the land application of fertiliser is inappropriate, or indeed prohibited;

—	the capacity for storage of livestock manures;

—	the method of calculating the amount of nitrogen to be applied for purposes of balanced fertilisation;

—	the quantitative limitation of the land application of livestock manures;

—	the regulation of the land application of fertiliser to steeply sloping ground;

—	the regulation of the land application of fertiliser to water-saturated, flooded, frozen or snow-covered ground.

(1) OJ 1991 L 375, p. 1.

21.7.2012

Official Journal of the European Union

C 217/12

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 24 May 2012 — WIND Telecomunicazioni SpA v Autorità per le Garanzie nelle Comunicazioni

(Case C-254/12)

2012/C 217/25

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: WIND Telecomunicazioni SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni

Question referred

21.7.2012

Official Journal of the European Union

C 217/12

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Telecom Italia SpA v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

(Case C-255/12)

2012/C 217/26

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Telecom Italia SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

Question referred

21.7.2012

Official Journal of the European Union

C 217/12

(Case C-256/12)

2012/C 217/27

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Telecom Italia SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

Question referred

21.7.2012

Official Journal of the European Union

C 217/13

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni, Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali

(Case C-257/12)

2012/C 217/28

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Sky Italia Srl

Defendants: Autorità per le Garanzie nelle Comunicazioni, Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20 EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included?

21.7.2012

Official Journal of the European Union

C 217/13

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Vodafone Omnitel Nv v Autorità per le Garanzie nelle Comunicazioni

(Case C-258/12)

2012/C 217/29

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Vodafone Omnitel Nv

Defendant: Autorità per le Garanzie nelle Comunicazioni

Question referred

21.7.2012

Official Journal of the European Union

C 217/13

Action brought on 25 May 2012 — European Commission v Hellenic Republic

(Case C-263/12)

2012/C 217/30

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic

Form of order sought

—

declare that, by not taking within the prescribed period all the measures necessary for recovery of the aid implemented by Greece in favour of Ellinikos Khrisos A.E. (C 48/2008 (ex NN 61/2008)) and found to be unlawful and incompatible with the common market pursuant to Article 1 of the Commission decision of 23 February 2011 (C(2011) 1006 final) or, in any event, by not informing the Commission sufficiently of the measures which it has taken in accordance with that article, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and the Treaty on the Functioning of the European Union;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

On 23 February 2011 the Commission decided that the State aid amounting to EUR 15.34 million unlawfully granted by Greece in breach of Article 108(3) of the Treaty on the Functioning of the European Union, in favour of Ellinikos Khrisos A.E., by way of a sale of assets and land below its value and a waiver of the associated taxes, with the aim of protecting employment and the environment and also of creating an incentive for potential buyers of the Cassandra Mines, was incompatible with the internal market. (1) By that decision, the Commission asked the Hellenic Republic to recover the aid, together with interest, from the beneficiary. The Hellenic Republic was also obliged to inform the Commission of the measures to implement the decision.

2.	The Hellenic Republic requested an extension of the two-month period for the provision of information, which it was not granted by the Commission because no justification was advanced therefor.

3.	Despite the Commission’s letters of reminder to the Hellenic Republic of 19 May 2011 and 14 July 2011, no information was given to the Commission, within the time-limit laid down, concerning the adoption of measures to implement the Commission decision.

On 8 May 2012, the Greek authorities notified the Commission of their letter of 25 April 2012 by which they demanded repayment of the State aid in question from Ellinikos Khrisos A.E. within 30 days. The Commission observes, however, that the amount that must be recovered is not mentioned in that letter. It is to be noted that, even if the principal sum of the State aid was calculated by the Commission in its aforementioned decision, the Greek authorities did not calculate the amount of interest, as they were obliged to do, and they do not mention it in their demand addressed to the company. In any event, that first reaction on the part of the Greek authorities occurred 14 months after the Commission decision and since then the Commission has no other information relating to the recovery of the State aid at issue.

(1) Article 1 of the Commission Decision of 23 February 2011 on the State aid C 48/2008 (ex NN 61/2008) implemented by Greece in favour of Ellinikos Khrisos A.E.

21.7.2012

Official Journal of the European Union

C 217/14

Action brought on 7 June 2012 — European Commission v Hungary

(Case C-286/12)

2012/C 217/31

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: J. Enegren and K. Talabér-Ritz, acting as Agents)

Defendant: Hungary

Form of order sought

—

Declare that Hungary has failed to fulfil its obligation under Articles 2 and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (1) by adopting national legislation which provides for the compulsory termination at the age of 62 of the service of judges, prosecutors and notaries public — which gives rise to a difference of treatment on grounds of age which is not justified by a legitimate purpose and which, in any event, is not appropriate or necessary for the achievement of the stated purpose.

—	order Hungary to pay the costs.

Pleas in law and main arguments

Under the Hungarian legislation on the compulsory maximum retirement age of judges, prosecutors and notaries public, the service of the members of such professions is to be terminated when they reach a certain age — currently 62 — whereas previously they could continue to work until the age of 70. The legislation at issue provides that the service of judges and prosecutors who have reached the maximum age before 1 January 2012 is to be terminated on 30 June 2012 and the service of judges and prosecutors who reach that age between 1 January 2012 and 31 December 2012 is to be terminated on 31 December 2012. For notaries public, the reduction of the compulsory retirement age from 70 to 62 will be applicable from 1 January 2014.

The Commission relies on the following pleas in law and arguments in support of its action for failure to fulfil obligations:

First, the Commission takes the view that the national legislation at issue constitutes a difference of treatment on the grounds of age under Article 2 of the Directive, given that it provides for less favourable treatment for judges, prosecutors and notaries public who have reached the new maximum compulsory retirement age than for all other working persons who have not reached that age.

If legislation which gives rise to a difference of treatment on the grounds of age is to be excluded from the prohibition on discrimination, it must fulfil the requirements laid down by Article 6(1) of the Directive. On the one hand, the legislation in question has to be objectively justified by a legitimate aim, and, on the other, the means of achieving that aim have to be appropriate and necessary (principle of proportionality).

In that regard, the Commission maintains that the legislation at issue does not expressly lay down a legitimate aim and nor is it possible to infer such an aim from its context, which is in itself a breach of the Directive, since it prevents the judicial review of the legality and proportionality of the national legislation. As regards the legitimacy of the aims alleged during the infringement procedure, the Commission states that only the aims relating to social policy can be considered capable of justifying an exception to the prohibition of discrimination on the grounds of age.

Finally, in the view of the Commission, the national legislation at issue is not appropriate or necessary for achieving the allegedly legitimate aims, given that (i) the transitional period of at most one and a half years is extremely short, having regard to the drastic reduction from 70 to 62 in the compulsory maximum age for service and (ii) the transitional period is not consistent with the general reform of retirement, under which the general retirement age is to be increased from 62 to 65 over a period of eight years between 2014 and 2022, which will give rise — after a period of only two years — to a new increase in the compulsory maximum age for service. Consequently, the Commission considers that the national legislation at issue disproportionately damages the legitimate interests of the judges, prosecutors and notaries public affected and goes beyond what is necessary to achieve its aim.

(1) OJ 2000 L 303, p. 16, ‘the Directive’.

21.7.2012

Official Journal of the European Union

C 217/16

Judgment of the General Court of 14 June 2012 — Stichting Natuur en Milieu, Pesticide Action Network Europe v Commission

(Case T-338/08) (1)

(Environment - Regulation (EC) No 1367/2006 - Maximum residue levels for pesticides - Request for internal review - Refusal - Measure of individual scope - Validity - Aarhus Convention)

2012/C 217/32

Language of the case: Dutch

Parties

Applicants: Stichting Natuur en Milieu (Utrecht (Netherlands)), Pesticide Action Network Europe (London (United Kingdom)) (represented by: B. Kloostra and A. van den Biesen, lawyers)

Defendant: European Commission (represented initially by B. Burggraaf and S. Schønberg and subsequently by B. Burggraaf and P. Oliver, Agents)

Interveners in support of the defendant: Republic of Poland (represented initially by M. Dowgielewicz and subsequently by M. Szpunar, Agents); and Council of the European Union (represented by: K. Michoel and B. Driessen, Agents)

Re:

Application for annulment of the decisions of the Commission of 1 July 2008 rejecting as inadmissible the requests made by the applicants for review by the Commission of Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (OJ 2008 L 58, p. 1)

Operative part of the judgment

The Court:

Annuls the decisions of the Commission of 1 July 2008 rejecting as inadmissible the requests made by Stichting Natuur en Milieu and Pesticide Action Network Europe for review by the Commission of Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto;

2.	Orders the European Commission to bear, in addition to its own costs, the costs incurred by Stichting Natuur en Milieu and Pesticide Action Network Europe;

3.	Orders the Polish Republic and the Council of the European Union to bear their own costs.

(1) OJ C 301, 22.11.2008.

21.7.2012

Official Journal of the European Union

C 217/16

Judgment of the General Court of 13 June 2012 — Insula v Commission

(Case T-246/09) (1)

(Arbitration clause - Financing contracts for research and development projects - MEDIS and Dias.Net contracts - Lack of supporting documents and non-compliance with the contractual requirements in respect of some of the declared expenses - Retention of a sum intended for another co-contractor - Reimbursement of sums advanced - Partial inadmissibility of the action - Counterclaim by the Commission - Partial removal of need to adjudicate in relation to the counterclaim)

2012/C 217/33

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

Defendant: European Commission (represented initially by A.-M. Rouchaud-Joët and F. Mirza, and subsequently by A.-M. Rouchaud-Joët and D. Calciu, Agents, and by L. Defalque and S. Woog, lawyers)

Re:

Application, first, for a declaration that a claim of the Commission of EUR 189 241,64 is unfounded, second, that the Commission be ordered to issue a ‘credit note’ in that amount and, lastly, that the Commission be ordered to pay damages of EUR 212 597, principally, and EUR 230 025, in the alternative.

Operative part of the judgment

The Court:

1.	Dismisses the action brought by the Conseil scientifique international pour le développement des îles (Insula);

2.	Declares that there is no need to adjudicate on the counterclaims submitted by the Commission in so far as they seek a declaration that Insula be ordered to pay the principal sum due and the interest thereon under the Dias.Net contract;

3.	Orders Insula to pay the Commission the principal sum of EUR 157 983,11, increased by default interest at the rate of 2,75 % per annum, from 16 May 2009 until full payment of that principal sum;

4.	Orders Insula to bear its own costs and to pay those incurred by the Commission, including those relating to the procedure for interim relief.

(1) OJ C 193, 15.8.2009.

21.7.2012

Official Journal of the European Union

C 217/17

Judgment of the General Court of 13 June 2012 Insula v Commission

(Case T-366/09) (1)

(Arbitration clause - Financing contracts for research and development projects - Ecres, El Hierro, Islands 2010, Opet I, Opet II, Opet Ola, Respire, Sustainable Communities and Virtual Campus contracts - Lack of supporting documents and non-compliance with the contractual requirements in respect of some of the declared expenses - Reimbursement of sums advanced - Partial inadmissibility of the action - Counterclaim by the Commission)

2012/C 217/34

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

Defendant: European Commission (represented initially by A.-M. Rouchaud-Joët and F. Mirza, and subsequently by A.-M. Rouchaud-Joët and D. Calciu, Agents, and by L. Defalque and S. Woog, lawyers)

Re:

Application, on the basis of Article 238 EC, for a declaration, first, that a claim of the Commission of EUR 114 996,82 is unfounded and, second, that a claim of the Commission of EUR 253 617,08 is well founded in part, and that the Commission be ordered to pay the applicant damages of EUR 146 261,06, principally, and of EUR 573 273,42, in the alternative.

Operative part of the judgment

The Court:

1.	Dismisses the action brought by the Conseil scientifique international pour le développement des îles (Insula);

2.	Orders Insula to pay the European Commission the principal sum of EUR 114 996,82, increased by default interest at the rate of 2,5 % per annum, from 16 August 2009 until full payment of that principal sum;

3.	Orders Insula to pay the Commission the principal sum of EUR 253 617,08, increased by default interest at the rate of 2,5 % per annum, from 8 September 2009 until full payment of that principal sum;

4.	Dismisses the remainder of the Commission’s counterclaim;

5.	Orders Insula to bear its own costs and to pay those incurred by the Commission.

(1) OJ C 282, 21.11.2009.

21.7.2012

Official Journal of the European Union

C 217/17

Judgment of the General Court of 14 June 2012 — Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission

(Case T-396/09) (1)

(Environment - Regulation (EC) No 1367/2006 - Obligation of the Member States to protect and improve ambient air quality - Temporary exemption granted to a Member State - Request for internal review - Refusal - Measure of individual scope - Validity - Aarhus Convention)

2012/C 217/35

Language of the case: Dutch

Parties

Applicants: Vereniging Milieudefensie (Amsterdam, Netherlands), Stichting Stop Luchtverontreiniging Utrecht (Utrecht, Netherlands) (represented by: A. van den Biesen, lawyer)

Defendant: European Commission (represented: initially by P. Oliver, W. Roels and A. Alcover San Pedro, subsequently by P. Oliver, A. Alcover San Pedro and E. Manhaeve, and finally by P. Oliver, A. Alcover San Pedro and B. Burggraaf, Agents)

Interveners in support of the defendant: Kingdom of the Netherlands (represented by: C. Wissels, Y. de Vries, J. Langer and M. de Ree, Agents); European Parliament (represented initially by L. Visaggio and A. Baas, and subsequently by L. Visaggio and G. Corstens, Agents); and Council of the European Union (represented by: M. Moore and F. Naert, Agents)

Re:

Application for annulment of Commission Decision C(2009) 6121 of 28 July 2009 rejecting as inadmissible the applicants’ request for review by the Commission of Decision C(2009) 2560 final of 7 April 2009 granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down in Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1)

Operative part of the judgment

The Court:

1.	Annuls Commission Decision C(2009) 6121 of 28 July 2009;

2.	Orders the European Commission to bear, in addition to its own costs, the costs incurred by Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, including those relating to the proceedings for interim relief;

3.	Orders the Kingdom of the Netherlands, the European Parliament and the Council of the European Union to bear their own costs.

(1) OJ C 297, 5.12.2009.

21.7.2012

Official Journal of the European Union

C 217/18

Judgment of the General Court of 7 June 2012 — Mada Pharma v OHIM — Nycomed (ALLERNIL)

(Joined Cases T-492/09 and T-147/10) (1)

(Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark ALLERNIL - Application for Community word mark ALLERNIL - Earlier national word mark ALLERGODIL - Relative ground of refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Grounds - Article 75 of Regulation No 207/2009)

2012/C 217/36

Language of the case: German

Parties

Applicant: Mada Pharma GmbH & Co. KG (Bad Homburg von der Höhe, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: B. Schmidt, then by D. Walicka and, finally by G. Schneider, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Nycomed GmbH (Constance, Germany) (represented initially by: A. Ferchland, then by A. Ferchland and K. Trautmann, lawyers)

Re:

Two actions brought against two decisions of the Fourth Board of Appeal of OHIM of 29 September 2009 (Cases R 1386/2007-4 and R 697/2007-4), relating to opposition proceedings between Meda Pharma GmbH & Co. KG and Nycomed GmbH.

Operative part of the judgment

The Court:

1.	Dismisses the actions.

2.	Orders Meda Pharma GmbH & Co. KG to pay the costs incurred in Joined Cases T-492/09 and T-147/10.

(1) OJ C 37, 13.2.2010.

21.7.2012

Official Journal of the European Union

C 217/18

Judgment of the General Court of 13 June 2012 — Insula v Commission

(Case T-110/10) (1)

(Arbitration clause - Financing contract for research and development projects - El Hierro contract - Lack of supporting documents and non-compliance with the contractual requirements in respect of the declared expenses - Reimbursement of sums advanced - Counterclaim by the Commission)

2012/C 217/37

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

Defendant: European Commission (represented initially by A. M. Rouchaud-Joët and F. Mirza, and subsequently by A.-M. Rouchaud-Joët and D. Calciu, Agents, and by L. Defalque and S. Woog, lawyers)

Re:

Application, submitted on the basis of Article 272 TFEU, seeking a declaration, first, that the Commission’s request for reimbursement of the sum of EUR 84 120 is unfounded and, second, that the Commission be ordered to issue a ‘credit note’ in the amount of EUR 84 120.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Conseil scientifique international pour le développement des îles (Insula) to pay the European Commission the principal sum of EUR 84 120, increased by default interest at the rate of 2,5 % per annum, from 26 January 2010 until full payment of that principal sum;

3.	Dismisses the remainder of the Commission’s counterclaim;

4.	Orders Insula to bear its own costs and to pay those incurred by the Commission.

(1) OJ C 134, 22.5.2010.

21.7.2012

Official Journal of the European Union

C 217/18

Judgment of the General Court of 14 June 2012 — Seven Towns Ltd v OHIM (Representation of seven squares of different colours)

(Case T-293/10) (1)

(Community trade mark - Application for Community mark representing seven squares of different colours - Sign of which a Community trade mark may consist - Article 4 of Regulation (EC) No 207/2009)

2012/C 217/38

Language of the case: English

Parties

Applicant: Seven Towns Ltd (London, United Kingdom) (represented by: E. Schäfer, lawyer,)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 29 April 2010 (Case R 1475/2009-1), concerning an application for registration of a sign representing seven squares of different colours as a Community mark.

Operative part of the judgment

The General Court:

1.	Dismisses the action;

2.	Orders each party to bear its own costs.

(1) OJ C 260, 25.9.2010.

21.7.2012

Official Journal of the European Union

C 217/19

Judgment of the General Court of 13 June 2012 — Paul Hartmann AG v OHIM — Mölnlycke Health Care (MESILETTE)

(Case T-342/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark MESILETTE - Earlier national and international word marks MEDINETTE - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 217/39

Language of the case: English

Parties

Applicant: Paul Hartmann AG (Heidenheim an der Brenz, Germany) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Mölnlycke Health Care AB (Göteborg, Sweden)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 May 2010 (Case R 1222/2009-2), concerning opposition proceedings between Paul Hartmann AG and Mölnlycke Health Care AB.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), of 20 May 2010 (Case R 1222/2009-2);

2.	Orders OHIM to pay the costs.

(1) OJ C 288, 23.10.2010.

21.7.2012

Official Journal of the European Union

C 217/19

Judgment of the General Court of 13 June 2012 — Seikoh Giken v OHIM — Seiko Holdings (SG SEIKOH GIKEN)

(Case T-519/10) (1)

(Community trade mark - Opposition proceedings - International registration - Application for territorial extension of the protection - Figurative mark SG SEIKOH GIKEN - Earlier Community word mark SEIKO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 217/40

Language of the case: English

Parties

Applicant: Kabushiki Kaisha Seikoh Giken (Matsudo-shi Chiba, Japan) (represented by: G. Marín Raigal, P. López Ronda and G. Macias Bonilla, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Seiko Holdings Kabushiki Kaisha (Tokyo, Japan) (represented by: J. Fish, R. Miller, Solicitors and A. Bryson, Barrister)

Re:

Application for annulment of the decision of the First Board of Appeal of OHIM of 12 August 2010 (Case R 1553/2009-1), relating to opposition proceedings between Seiko Holdings Kabushiki Kaisha and Kabushiki Kaisha Seikoh Giken.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Kabushiki Kaisha Seikoh Giken to pay the costs.

(1) OJ C 13, 15.1.2011.

21.7.2012

Official Journal of the European Union

C 217/20

Judgment of the General Court of 13 June 2012 — Organismos Kypriakis Galaktokomikis Viomichanias v OHIM — Garmo (HELLIM)

(Case T-534/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark HELLIM - Earlier Community collective word mark HALLOUMI - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Right to be heard - Article 63(2) of Regulation No 207/2009)

2012/C 217/41

Language of the case: German

Parties

Applicant: Organismos Kypriakis Galaktokomikis Viomichanias (Nicosia, Cyprus) (represented initially by: C. Milbradt and H. Van Volxem, and subsequently by C. Milbradt and A. Schwarz, lawyers)

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: Garmo AG (Stuttgart, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 September 2010 (Case R 794/2010-4), concerning opposition proceedings between Organismos Kypriakis Galaktokomikis Viomichanias and Garmo AG.

Operative part of the judgment

The General Court:

1.	Dismisses the action;

2.	Orders Organismos Kypriakis Galaktokomikis Viomichanias to pay the costs.

(1) OJ C 30, 29.1.2011.

21.7.2012

Official Journal of the European Union

C 217/20

Judgment of the General Court of 13 June 2012 — Organismos Kypriakis Galaktokomikis Viomichanias v OHIM — Garmo (GAZI Hellim)

(Case T-535/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark GAZI Hellim - Prior collective Community word mark HALLOUMI - Relative ground for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 217/42

Language of the case: German

Parties

Applicant: Organismos Kypriakis Galaktokomikis Viomichanias (Nicosia, Cyprus) (represented initally by: C. Milbradt and H. Van Volxem, and subsequently by: C. Milbradt and A. Schwarz, lawyers)

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: Garmo AG (Stuttgart, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 September 2010 (Case R 1497/2009-4) concerning opposition proceedings between Organismos Kypriakis Galaktokomikis Viomichanias and Garmo AG.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 20 September 2010 (Case R 1497/2009-4);

2.	Orders OHIM to pay the costs, including those incurred in the proceedings before the Board of Appeal.

(1) OJ C 30, 29.1.2011.

21.7.2012

Official Journal of the European Union

C 217/20

Judgment of the General Court of 13 June 2012 — XXXLutz Marken v OHIM — Meyer Manufacturing (CIRCON)

(Case T-542/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark CIRCON - Prior Community word mark CIRCULON - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Highly distinctive character - Goodwill - Article 8(1)(b) of Regulation (EC) No 207/2009 - Procedure before the Board of Appeal - Rights of the defence - Articles 75 and 76 of Regulation No 207/2009)

2012/C 217/43

Language of the case: German

Parties

Applicant: XXXLutz Marken GmbH (Wels, Austria) (represented by: H. Pannen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: R. Manea, and subsequently by: K. Klüpfel, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Meyer Manufacturing Co. Ltd (Kowloon, Hong Kong) (represented by: M. Fiedler, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 3 September 2010 (Case R 40/2010-1) concerning opposition proceedings between Meyer Manufacturing Co. Ltd and XXXLutz Marken GmbH.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 September 2010 (Case R 40/2010-1);

2.	Orders OHIM to bear its own costs and to pay those incurred by XXXLutz Marken GmbH;

3.	Orders Meyer Manufacturing Co. Ltd to bear its own costs.

(1) OJ C 30, 29.1.2011.

21.7.2012

Official Journal of the European Union

C 217/21

Judgment of the General Court of 12 June 2012 — Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE)

(Case T-165/11) (1)

(Community trade mark - Invalidity proceedings - Community word mark COLLEGE - Absolute ground for refusal - Absence of descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

2012/C 217/44

Language of the case: English

Parties

Applicant: Stichting Regionaal Opleidingencentrum van Amsterdam (Amsterdam, Netherlands) (represented by: R. van Leeuwen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Investimust SA (Geneva, Switzerland)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 12 January 2011 (Case R 508/2010-4), concerning invalidity proceedings between Stichting Regionaal Opleidingencentrum van Amsterdam and Investimust SA.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Stichting Regionaal Opleidingencentrum van Amsterdam to pay the costs.

(1) OJ C 152, 21.5.2011.

21.7.2012

Official Journal of the European Union

C 217/21

Judgment of the General Court of 13 June 2012 — Hotel Reservation Service Robert Ragge v OHIM — Promotora Imperial (iHotel)

(Case T-277/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark iHotel - Earlier Community figurative mark i-hotel - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 217/45

Language of the case: German

Parties

Applicant: Hotel Reservation Service Robert Ragge GmbH (Cologne, Germany) (represented by: M. Koch and D. Hötte, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Promotora Imperial SA (Pozuelo de Alarcón, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 24 February 2011 (Case R 832/2010-1) relating to opposition proceedings between Promotora Imperial SA and Hotel Reservation Service Robert Ragge GmbH.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hotel Reservation Service Robert Ragge GmbH to bear its own costs and to pay those incurred by OHIM.

(1) OJ C 238, 13.8.2011.

21.7.2012

Official Journal of the European Union

C 217/22

Judgment of the General Court of 13 June 2012 — Süd-Chemie v OHIM — Byk-Cera (CERATIX)

(Case T-312/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark CERATIX - Earlier national word mark CERATOFIX - Genuine use of the earlier mark - Article 42(2) and (3) of Regulation (EC) No 207/2009)

2012/C 217/46

Language of the case: German

Parties

Applicant: Süd-Chemie AG (Munich, Germany) (represented by: Baron W. von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

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: Byk-Cera BV (Deventer, Netherlands) (represented by: J. Kroher and A. Hettenkofer, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4) concerning opposition proceedings between Süd-Chemie AG and Byk-Cera BV.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Süd-Chemie AG to pay the costs.

(1) OJ C 238, 13.8.2011.

21.7.2012

Official Journal of the European Union

C 217/22

Order of the General Court of 4 June 2012 — Azienda Agricola Bracesco v Commission

(Case T-440/09) (1)

(Extra-contractual liability - Agriculture - Bird flu - Exceptional market support measures in the eggs and poultry sector - Non-inclusion of quails among the poultry types for which compensation is available - Equal treatment and non-discrimination - No causal link - Action manifestly devoid of any basis in law)

2012/C 217/47

Language of the case: Italian

Parties

Applicant: Azienda Agricola Bracesco Srl — in liquidazione (Orgiano, Italy) (represented by: F. Tosello, S. Rizzioli and C. Pauly, lawyers)

Defendant: European Commission (represented by: F. Jimeno Fernández and D. Nardi, Agents)

Re:

Action for damages seeking compensation for the harm allegedly suffered by the applicant following the adoption of Commission Regulation (EC) No 1010/2006 of 3 July 2006 on certain exceptional market support measures in the eggs and poultry sector in certain Member States (OJ 2006 L 180, p. 3), in so far as that regulation does not provide for such measures in favour of poultry farmers active in the farming and marketing of quails.

Operative part of the order

1.	The action is dismissed as being manifestly devoid of any basis in law.

2.	Azienda Agricola Bracesco Srl — in liquidazione is ordered to bear its own costs and those incurred by the European Commission.

(1) OJ C 312, 19.12.2009.

21.7.2012

Official Journal of the European Union

C 217/22

Order of the General Court of 4 June 2012 — Ezzedine and Others v Council

(Cases T-131/11, T-132/11, T-137/11, T-139/11 to T-141/11, T-144/11 to T-148/11 and T-182/11) (1)

(Common foreign and security policy - Restrictive measures adopted in view of the situation in Côte d’Ivoire - Withdrawal from the list of persons concerned - Death of the applicant - Action for annulment - No need to adjudicate)

2012/C 217/48

Language of the cases: French

Parties

Applicants: Ibrahim Ezzedine (Abidjan, Côte d’Ivoire) (Case T-131/11); Feh Lambert Kessé (Abidjan) (Case T-132/11); Georges Guiai Bi Poin (Abidjan) (Case T-137/11); Loba Emmanuel Patrice Gnango (Abidjan) (Case T-139/11); Badia Brice Guei (Abidjan) (Case T-140/11); Blé Brunot Dogbo (Abidjan) (Case T-141/11); Tiapé Edouard Kassarate (Abidjan) (Case T-144/11); Gagbei Faussignaux Vagba (Abidjan) (Case T-145/11); Claude Yoro (Abidjan) (Case T-146/11); Gogo Joachim Robe (Abidjan) (Case T-147/11); Philippe Mangou (Abidjan) (Case T-148/11); and Philippe Henry Dacoury-Tabley (Abidjan) (Case T-182/11) (represented by: in Cases T-132/11, T-137/11, T-139/11, T-140/11, T-141/11, T-146/11, T-147/11 and T-182/11, G. Collard; in Case T-131/11, initially by G. Collard, subsequently by F. Dressen and J.-Y. Dupeux; and, in Cases T-144/11, T-145/11 and T-148/11, by G. Collard and L. Aliot, lawyers)

Defendant: Council of the European Union (represented by: B. Driessen and, in Cases T-131/11, T-132/11 and T-182/11, by G. Étienne, in Cases T-139/11 to T-141/11, by C. Fekete and, in Cases T-144/11 to T-148/11, by E. Dumitriu-Segnana, acting as Agents)

Interveners in support of the defendant: Republic of Côte d’Ivoire (represented by: J.-P. Mignard and J.-P. Benoit, lawyers, in Cases T-132/11, T-137/11, T-140/11, T-141/11 and T-144/11 to T-148/11); and European Commission (represented by: A. Bordes and M. Konstantinidis and, in Cases T-137/11, T-139/11 to T-141/11 and T-144/11 to T-148/11, initially by E. Cujo, acting as Agents)

Re:

In Cases T-132/11, T-137/11, T-139/11 to T-141/11 and T-144/11 to T-148/11, applications for annulment, first, of Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire (OJ 2011 L 11, p. 36), and, second, of Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 11, p. 1), in Case T-131/11, application for annulment of Council Decision 2011/71/CFSP of 31 January 2011 amending Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire (OJ 2011 L 28, p. 60), and, in Case T-182/11, application for annulment, first, of Decision 2011/71 and, second, of Council Implementing Regulation (EU) No 85/2011 of 31 January 2011 implementing Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 28, p. 32).

Operative part of the order

1.	Cases T-131/11, T-132/11, T-137/11, T-139/11 to T-141/11, T-144/11 to T-148/11 and T-182/11 are joined for the purposes of the order.

2.	There is no longer any need to adjudicate on the actions.

The Council of the European Union shall pay, in addition to its own costs, those incurred by Ibrahim Ezzedine, Feh Lambert Kessé, Georges Guiai Bi Poin, Loba Emmanuel Patrice Gnango, Badia Brice Guei, Blé Brunot Dogbo, Tiapé Edouard Kassarate, Gagbei Faussignaux Vagba, Claude Yoro, Gogo Joachim Robe, Philippe Mangou and Philippe Henry Dacoury-Tabley.

4.	The Republic of Côte d’Ivoire and the European Commission shall bear their own respective costs.

(1) OJ C 130, 30.4.2011.

21.7.2012

Official Journal of the European Union

C 217/23

Order of the General Court of 4 June 2012 — Hüttenwerke Krupp Mannesmann and Others v Commission

(Case T-379/11) (1)

(Action for annulment - Environment - Directive 2003/87/EC - Allocation of free greenhouse gas emission allowances from 2013 - Commission decision determining the product benchmarks to apply for the calculation of the allocation of emission allowances - Article 263, fourth paragraph TFEU - Lack of individual concern - Regulatory act entailing implementing measures - Inadmissible)

2012/C 217/49

Language of the case: German

Parties

Applicants: Hüttenwerke Krupp Mannesmann GmbH (Duisberg, Germany); Rogesa — Roheisengesellschaft Saar mbH (Dillingen, Germany); Salzgitter Flachstaht Gmbh (Salzgitter, Germany); ThyssenKrupp Steel Europe AG (Duisberg); and voestalpine Stahl GmbH (Linz, Austria) (represented by: S. Altenschmidt and C. Dittrich, lawyers)

Defendant: European Commission (represented by: G. Wilms, K. Hermann and K. Mifsud-Bonnici, Agents)

Re:

Application for annulment of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Hüttenwerke Krupp Mannesmann GmbH, Rogesa — Roheisengesellschaft Saar mbH, Salzgitter Flachstaht Gmbh, ThyssenKrupp Steel Europe AG, and voestalpine Stahl GmbH are ordered to pay the costs, including those relating to the proceedings for interim relief.

(1) OJ C 269, 10.9.2011.

21.7.2012

Official Journal of the European Union

C 217/24

Order of the General Court of 4 June 2012 — Eurofer v Commission

(Case T-381/11) (1)

(Action for annulment - Environment - Directive 2003/87/EC - Free allocation of greenhouse gas emission quotas from 2013 - Commission decision determining the product benchmark to be applied for the calculation of the allocation of emission quotas - Fourth paragraph of Article 263 of the TFEU - Lack of individual concern - Regulatory instrument containing implementation measures - Inadmissibility)

2012/C 217/50

Language of the case: German

Parties

Applicant: Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL (Luxembourg, Luxembourg) (represented by: S. Altenschmidt and C. Dittrich, lawyers)

Defendant: European Commission (represented by: G. Wilms, K. Herrmann and K. Mifsud-Bonnici, Agents)

Re:

Application for the annulment of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no need to rule on the application for leave to intervene of Euroalliages.

3.	Europäischer Wirtschaftsverband der Eisen- und Stahlindustrie (Eurofer) ASBL is ordered to pay the costs, including those relating to the proceedings for interim relief.

(1) OJ C 269, 10.9.2011.

21.7.2012

Official Journal of the European Union

C 217/24

Action brought on 16 May 2012 — Al Assad v Council

(Case T-202/12)

2012/C 217/51

Language of the case: French

Parties

Applicant: Bouchra Al Assad (Damascus, Syria) (represented by: G. Karouni, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, in so far as it refers to Mrs Bouchra (aka Bushra) Al Assad;

—	Order the Council of the European Union to pay the costs, in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law, which are for all essential purposes identical or similar to those relied on in Case T-383/11 Makhlouf v Council. (1)

(1) OJ 2011 C 282, p. 30.

21.7.2012

Official Journal of the European Union

C 217/24

Action brought on 16 May 2012 — Alchaar v Council

(Case T-203/12)

2012/C 217/52

Language of the case: French

Parties

Applicant: Mohamad Nedal Alchaar (Alep, Syria) (represented by: A. Korkmaz, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—

annul, as far as those acts concern the applicant:

—	Implementing Regulation No 1244/2011 of 1 December 2011;

—	Decision No 2011/782/CFSP as amended and supplemented up to now, in particular by implementing Decision No 2012/37/CFSP, Decision 2012/122/CFSP, Implementing Decision 2012/172/CFSP and Decision 2012/206/CFSP;

—	Council Regulation (EU) No 36/2012 of 18 January 2012 as amended and supplemented up to now, in particular by Implementing Regulation No 55/2012, Regulation No 168/2012 and Implementing Regulation No 266/2012

—	All future acts amending or supplementing Decision 2011/782/CFSP and Council Regulation No 36/2012

—	annul the Council’s decision in its letter of 16 March 2012 addressed to the applicant, in so far as it maintains his inclusion on the contested lists;

—	order the Council to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging an infringement of fundamental rights and procedural guarantees, in particular rights, the duty to state reasons and the principle of effective judicial protection, in so far as the applicant did not receive formal notification of his inclusion on the list of persons sanctioned and or the grounds for his inclusion in the contested acts and were not sufficient to justify the sanctions.

2.	Second plea in law, alleging an infringement of the right to property and economic freedom.

21.7.2012

Official Journal of the European Union

C 217/25

Action brought on 15 May 2012 — Vila Vita Hotel und Touristik v OHIM — Viavita (VIAVITA)

(Case T-204/12)

2012/C 217/53

Language in which the application was lodged: English

Parties

Applicant: Vila Vita Hotel und Touristik GmbH (Frankfurt, Germany) (represented by: G. Schoenen 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: Viavita SASU (Paris, France)

Form of order sought

—	Overturn the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in case R 419/2011-1;

—	Order OHIM to bear the costs of the applicant; and

—	In the event that the other party to the proceedings before the Board of Appeal joins in these proceedings as an intervening party, order it to bear its own costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘VIAVITA’, for services in classes 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 — Community trade mark application No 52201504

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

Mark or sign cited in opposition: Austrian trade mark registration No 154631 of the word mark ‘VILA VITA PARC’, for services in classes 39 and 42; German trade mark registration No 2097301 of the figurative mark ‘VILA VITA TOURISTIK GMBH’, for goods and services in classes 3, 35, 37, 39 et 41

Decision of the Opposition Division: Partially upheld the opposition

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

Pleas in law: Infringement of Article 42(2) and (3) of Council Regulation No 207/2009.

21.7.2012

Official Journal of the European Union

C 217/25

Action brought on 14 May 2012 — Shark v OHIM — Monster Energy (UNLEASH THE BEAST!)

(Case T-217/12)

2012/C 217/54

Language in which the application was lodged: English

Parties

Applicant: Shark AG (Innsbruck, Austria) (represented by: D. Campbell, Barrister, and P. Strickland, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Monster Energy Company (Corona, United States)

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 1 March 2012 in case R 360/2011-1; 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

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘UNLEASH THE BEAST!’, for goods in class 32 — Community trade mark registration No 5093174

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: Community trade mark registration No 2729366 of the word mark ‘BRING OUT THE BEAST’, for goods in class 32; Community trade mark registration No 2730133 of the figurative mark ‘COOL BITE BRING OUT THE BEAST’, for goods in class 32

Decision of the Cancellation Division: Declared the invalidity of the contested community trade mark

Decision of the Board of Appeal: Annulled the contested decision and rejected the application for a declaration of invalidity

Pleas in law: Infringement of Article 57(2) of Council Regulation No 207/2009.

21.7.2012

Official Journal of the European Union

C 217/26

Action brought on 22 May 2012 — Micrus Endovascular v OHIM — Laboratorios Delta (DELTA)

(Case T-218/12)

2012/C 217/55

Language in which the application was lodged: English

Parties

Applicant: Micrus Endovascular LLC (Wilmington, United States) (represented by: B. Brandreth, Barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Delta Lda (Queluz, Portugal)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2012 in case R 244/2011-2; and

—	Order that the respondent pays the applicant its costs incurred before the Board of Appeal and the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘DELTA’, for goods in class 10 — Community trade mark application No 6655906

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

Mark or sign cited in opposition: International trade mark registration No 131374 of the figurative mark ‘DELTA PORTUGAL’, for goods in class 5; Portuguese trade mark registration No 140578 of the figurative mark ‘DELTA PORTUGAL’, for goods in class 5; Registered trade name No 23113 ‘LABORATORIOS DELTA’

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

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

21.7.2012

Official Journal of the European Union

C 217/26

Action brought on 25 May 2012 — Sunrider v OHIM — Nannerl (SUN FRESH)

(Case T-221/12)

2012/C 217/56

Language in which the application was lodged: English

Parties

Applicant: The Sunrider Corp. (United States) (represented by: N. Dontas and E. Markakis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nannerl GmbH & Co. KG (Anthering bei Salzburg, Austria)

Form of order sought

—	Declare the present action admissible;

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2012 in case R 2401/2010-4;

—	Order OHIM to pay the costs incurred by the applicant in the course of the present proceedings before the General Court; and

—	Order OHIM to pay the costs necessarily incurred by the applicant in the course of the underlying proceedings before the Fourth Board of Appeal.

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 ‘SUN FRESH’, for goods in class 32 — Community trade mark application No 6171433

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

Mark or sign cited in opposition: Community trade mark registration No 605014 of the word mark ‘SUNNY FRESH’, for goods in class 5; UK trade mark registration No 2016689 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in class 32; Irish trade mark registration No 169766 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in class 32; Hungarian trade mark registration No 144500 for the word mark ‘SUNNYFRESH’, for goods in class 5; Benelux trade mark registration No 574389 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in classes 5, 29 and 32

Decision of the Opposition Division: Upheld the opposition and rejected the CTM application

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

Pleas in law:

—	Infringement of Article 42(2) and (3) of Council Regulation No 207/2009

—	Infringement of Article 75 second sentence and Article 76(1) second sentence of Council Regulation No 207/2009

—	Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

21.7.2012

Official Journal of the European Union

C 217/27

Action brought on 4 June 2012 — Eni v Commission

(Case T-240/12)

2012/C 217/57

Language of the case: Italian

Parties

Applicant: Eni SpA (Rome, Italy) (represented by: G. Roberti and I. Perego, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Declare the action admissible;

—	Annul the contested measure;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the letter (D/2012/042026) of 23 April 2012 concerning Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber — Re-adoption, by which the European Commission communicated to ENI its decision to recommence the BR-ESBR procedure following the judgment of the General Court of 13 July 2011 in Case T-39/07 Eni v Commission, which annulled in part Decision C(2006) 5700 of 29 November 2006 adopted in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber and reduced the fine imposed.

In support of the action, ENI relies on a single plea in law, alleging lack of competence, since the Commission cannot recommence the investigation procedure in Case BR-ESBR with a view to adopting a fresh decision imposing fines.

ENI submits that in its judgment of 13 July 2011, in addition to annulling in part the 2006 BR-ESBR decision, on the basis that the Commission had failed to make a correct assessment of the aggravating circumstance of repeated infringement, the General Court exercised its unlimited jurisdiction — under Article 261 TFEU and Regulation No 1/2003 — re-determining the amount of the fine and substituting its own assessment for that of the Commission. From that perspective, the decision to recommence the BR-ESBR procedure, as well as infringing the principle governing the attribution of powers and ensuring institutional balance referred to in Article 13 TFEU, is contrary to the fundamental right to fair legal process laid down in Article 6 ECHR and Article 47 of the Charter of Fundamental Rights and to the ne bis in idem principle embodied in Article 7 ECHR.

Moreover, ENI claims that, contrary to what is stated in the contested measure, the General Court did not merely establish a procedural defect in the Commission’s application of the concept of repeated infringement in the 2006 BR-ESBR decision; the Commission cannot, therefore, rely on the PVC II (1) case-law to justify its own action, which, also from that perspective, is contrary to Article 7 ECHR.

Lastly, having regard to the relevant case-law, ENI submits that in the circumstances of the present case any possibility of readopting a decision which once again applies the concept of repeated infringement and imposes a fine is, in any event, wholly precluded.

(1) Joined Cases C-238/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P Limburgse Vinyl Maatschappij NV (LVM) and Others v Commission (PVV II) [2002] ECR I-8375.

21.7.2012

Official Journal of the European Union

C 217/28

Action brought on 29 May 2012 — International Brands Germany v OHIM — Stuffer (ALOHA 100 % NATURAL)

(Case T-243/12)

2012/C 217/58

Language in which the application was lodged: German

Parties

Applicant: International Brands Germany GmbH & Co. KG (Paderborn, Germany) (represented by: B. Hein and M. Hoffmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Stuffer SpA (Bolzano, Italy)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 March 2012 in case R 1058/2011-1 and reject the opposition;

—	Order the defendant to pay the costs of the proceedings, including those incurred during the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: International Brands Germany GmbH & Co. KG

Community trade mark concerned: Figurative mark ‘ALOHA 100 % NATURAL’ for goods in Class 32 — application No 7 050 701

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

Mark or sign cited in opposition: National word mark ‘ALOA’ for goods in Class 32

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal dismissed

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

21.7.2012

Official Journal of the European Union

C 217/28

Action brought on 30 May 2012 — Unister v OHIM (fluege.de)

(Case T-244/12)

2012/C 217/59

Language of the case: German

Parties

Applicant: Unister GmbH (Leipzig, Germany) (represented by H. Hug and A. Kessler-Jensch, lawyers)

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

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 14 March 2012 in Case R 2149/2011-1;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘fluege.de’ for goods in Classes 25, 28, 35, 39, 41 and 43

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

—	infringement of Article 7(1)(b) and (c) of Regulation No 207/2009

—	infringement of Article 7(3) of Regulation No 207/2009

21.7.2012

Official Journal of the European Union

C 217/28

Action brought on 12 June 2012 — Mederer v OHIM — Katjes Fassin (SOCCER GUMS)

(Case T-258/12)

2012/C 217/60

Language in which the application was lodged: German

Parties

Applicant: Mederer GmbH (Fürth, Germany) (represented by: O. Ruhl and C. Sachs, lawyers)

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

Other party to the proceedings before the Board of Appeal: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of 10 April 2012 in Case R 225/2011-4;

—	Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Katjes Fassin GmbH & Co. KG to pay the costs of the opposition proceedings, the appeal proceedings and the proceedings before the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘SOCCER GUMS’ for goods in Class 30 — Community trade mark application No 8 629 446

Proprietor of the mark or sign cited in the opposition proceedings: Katjes Fassin GmbH & Co. KG

Mark or sign cited in opposition: the national word mark ‘SOCCER STAR’ for goods in Class 30

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 76(1) of Regulation No 207/2009;

—	Infringement of Article 8(1)(b) of Regulation No 207/2009.

21.7.2012

Official Journal of the European Union

C 217/30

Judgment of the Civil Service Tribunal (Third Chamber) of 16 May 2012 — Skareby v Commission

(Case F-42/10) (1)

(Civil service - Duty to provide assistance - Articles 12a and 24 of the Staff Regulations - Psychological harassment by a hierarchical superior)

2012/C 217/62

Language of the case: English

Parties

Applicant: Carina Skareby (Louvain, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

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

Re:

Application for the annulment of the defendant’s decision refusing the request for assistance relating to psychological harassment of which the applicant claims to have been a victim.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Ms Skareby to pay, in addition to her own costs, three quarters of the costs of the European Commission;

3.	Orders the European Commission to pay one quarter of its own costs.

(1) OJ C 209, 31.7.2010, p. 55.

21.7.2012

Official Journal of the European Union

C 217/30

Judgment of the Civil Service Tribunal (First Chamber) of 5 June 2012 — Cantisani v Commission

(Case F-71/10) (1)

(Civil Service - Members of the contract staff - Conference interpreter - Articles 12a and 24 of the Staff Regulations - Psychological harassment - Conflict of interest - Claim for compensation)

2012/C 217/63

Language of the case: French

Parties

Applicant: Nicola Cantisani (Brussels, Belgium) (represented by: S. de Lannoy, lawyer)

Defendant: European Commission (represented by: J. Currall and J. Barquero Cruz, Agents)

Re:

Application for the annulment of the defendant’s decision rejecting the applicant’s request for assistance in respect of psychological harassment and claim for compensation.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Cantisani to bear his own costs and to pay those of the European Commission.

(1) OJ C 317, 20.11.2010, p. 49.

21.7.2012

Official Journal of the European Union

C 217/30

Judgment of the Civil Service Tribunal (First Chamber) of 5 June 2012 — Giannakouris v Commission

(Case F-83/10) (1)

(Civil service - Officials - Remuneration - Family allowances - Education allowance - Conditions of grant - Deduction of an allowance of like nature paid from other sources)

2012/C 217/64

Language of the case: Greek

Parties

Applicant: Konstantinos Giannakouris (Roodt-sur-Syre, Luxembourg) (represented by: V. Christianos, lawyer)

Defendant: European Commission (represented by: D. Martin, Agent, and E. Bourtzalas and E. Antypas, lawyers)

Re:

Annulment of the decision of the Commission whereby the education allowance granted to the applicant was reduced on the basis that his daughter receives financial assistance from a Member State by way of a grant and a loan.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Giannakouris to pay the European Commission’s costs.

(1) OJ C 13, 15.1.2011, p. 38.

21.7.2012

Official Journal of the European Union

C 217/31

Judgment of the Civil Service Tribunal (First Chamber) of 5 June 2012 — Chatzidoukakis v Commission

(Case F-84/10) (1)

(Civil service - Officials - Remuneration - Family allowances - Education allowance - Conditions of grant - Deduction of an allowance of like nature paid from other sources)

2012/C 217/65

Language of the case: Greek

Parties

Applicant: Efstratios Chatzidoukakis (Schrassig, Luxembourg) (represented by: V. Christianos, lawyer)

Defendant: European Commission (represented by: D. Martin, Agent, and E. Bourtzalas and E. Antypas, lawyers)

Re:

Annulment of the decision of the Commission whereby the education allowance granted to the applicant was reduced on the basis that his son receives financial assistance from a Member State by way of a grant and a loan.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Chatzidoukakis to pay the European Commission’s costs.

(1) OJ C 13, 15.1.2011, p. 39.

21.7.2012

Official Journal of the European Union

C 217/31

Order of the Civil Service Tribunal (First Chamber) of 24 May 2012 — Alionescu v Commission

(Case F-91/11)

(Civil service - Recruitment - Open competition - Decision to extend the deadline for registration - No complaint - Manifest inadmissibility)

2012/C 217/66

Language of the case: English

Parties

Applicant: Ciprian-Calin Alionescu (Etterbeek, Belgium) (represented by: M. Stănculescu, lawyer)

Defendant: European Commission

Re:

Application for annulment of the EPSO decision to extend by six hours the period for the submission of applications in open competition EPSO/AD/206-207/11.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Alionescu shall bear his own costs.

		ISSN 1977-091X doi:10.3000/1977091X.C_2012.217.eng
Official Journal of the European Union		C 217

English edition	Information and Notices	Volume 55 21 July 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 217/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 209, 14.7.2012	1