24.11.2012

Official Journal of the European Union

C 366/3

Assignment of Judges to the Chambers of five Judges

2012/C 366/07

At its meeting on 11 October 2012, the Court decided to assign Judges to the Chambers of five Judges as follows:

First Chamber

Mr Tizzano, President,

Mr Borg Barthet, Mr Levits, Mr Kasel and Ms Berger, Judges

Second Chamber

Ms Silva de Lapuerta, President,

Mr Arestis, Mr Bonichot, Mr Arabadjiev and Mr da Cruz Vilaça, Judges

Third Chamber

Mr Ilešič, President,

Mr Ó Caoimh, Ms Toader, Mr Jarašiūnas and Mr Fernlund, Judges

Fourth Chamber

Mr Bay Larsen, President,

Mr Malenovský, Mr Lõhmus, Mr Safjan and Ms Prechal, Judges

Fifth Chamber

Mr von Danwitz, President,

Mr Rosas, Mr Juhász, Mr Šváby and Mr Vajda, Judges

24.11.2012

Official Journal of the European Union

C 366/4

Assignment of Judges to the Chambers of three Judges

2012/C 366/08

At its meeting on 12 October 2012, the Court decided to assign the Judges to the Chambers with three Judges as follows:

Sixth Chamber

Ms Berger, President,

Mr Borg Barthet, Mr Levits and Mr Kasel, Judges

Seventh Chamber

Mr Arestis, President,

Mr Bonichot, Mr Arabadjiev and Mr da Cruz Vilaça, Judges

Eighth Chamber

Mr Jarašiūnas, President,

Mr Ó Caoimh, Ms Toader and Mr Fernlund, Judges

Ninth Chamber

Mr Malenovský, President,

Mr Lõhmus, Mr Safjan and Ms Prechal, Judges

Tenth Chamber

Mr Rosas, President,

Mr Juhász, Mr Šváby and Mr Vajda, Judges

24.11.2012

Official Journal of the European Union

C 366/4

Lists for the purposes of determining the composition of the formations of the Court

2012/C 366/09

At its meeting on 11 October 2012, the Court drew up the list for determining the composition of the Grand Chamber as follows:

Mr Rosas

Mr Vajda

Mr Juhász

Mr da Cruz Vilaça

Mr Arestis

Mr Fernlund

Mr Borg Barthet

Mr Jarašiūnas

Mr Malenovský

Ms Prechal

Mr Lõhmus

Ms Berger

Mr Levits

Mr Šváby

Mr Ó Caoimh

Mr Safjan

Mr Bonichot

Mr Kasel

Mr Arabadjiev

Ms Toader

At its meeting on 11 October 2012, the Court drew up the lists for determining the composition of the Chambers of five Judges as follows:

First Chamber:

Mr Borg Barthet

Ms Berger

Mr Levits

Mr Kasel

Second Chamber:

Mr Arestis

Mr da Cruz Vilaça

Mr Bonichot

Mr Arabadjiev

Third Chamber:

Mr Ó Caoimh

Mr Fernlund

Ms Toader

Mr Jarašiūnas

Fourth Chamber:

Mr Malenovský

Ms Prechal

Mr Lõhmus

Mr Safjan

Fifth Chamber:

Mr Rosas

Mr Vajda

Mr Juhász

Mr Šváby

At its meeting on 12 October 2012, the Court drew up the lists for determining the composition of the Chambers of three Judges as follows:

Sixth Chamber

Mr Borg Barthet

Mr Levits

Mr Kasel

Seventh Chamber

Mr Bonichot

Mr Arabadjiev

Mr da Cruz Vilaça

Eighth Chamber

Mr Ó Caoimh

Ms Toader

Mr Fernlund

Ninth Chamber

Mr Lõhmus

Mr Safjan

Ms Prechal

Tenth Chamber

Mr Juhász

Mr Šváby

Mr Vajda

24.11.2012

Official Journal of the European Union

C 366/8

Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany), the High Court of Justice (Chancery Division) (United Kingdom), the Tribunal de grande instance de Nanterre (France)) — Zuckerfabrik Jülich AG v Hauptzollamt Aachen (C-113/10), British Sugar plc v Rural Payments Agency, an Executive Agency of the Department for Environment, Food & Rural Affairs (C-147/10), and Tereos — Union de coopératives agricoles à capital variable v Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers (C-234/10)

(Joined Cases C-113/10, C-147/10 and C-234/10) (1)

(Common agricultural policy - Common organisation of the markets - Producers of sugar and of isoglucose - Calculation of production levies - Validity of a method of calculation taking into account fictitious refund amounts for those quantities of sugar exported without refund - Retroactive effect of the legislation - Exchange rate - Award of interest)

2012/C 366/13

Language of the case: German, English, French

Referring court

Finanzgericht Düsseldorf, the High Court of Justice (Chancery Division), and the Tribunal de grande instance de Nanterre

Parties to the main proceedings

Applicants: Zuckerfabrik Jülich AG (C-113/10), British Sugar plc (C-147/10), Tereos — Union de coopératives agricoles à capital variable (C-234/10)

Defendants: Hauptzollamt Aachen (C-113/10), Rural Payments Agency, an Executive Agency of the Department for Environment, Food & Rural Affairs (C-147/10), Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers (C-234/10)

Re:

(C-113/10)

Reference for a preliminary ruling — Finanzgericht Dusseldorf — Validity of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321, p. 1) in the light of the principles of legal certainty and the protection of legitimate expectations — Retroactivity of that regulation — Method for calculating the production levies

(C-147/10)

Reference for a preliminary ruling — High Court of Justice (Chancery Division) — Validity of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, No (EC) 1175/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005 and 2005/2006 (OJ 2009 L 321, p. 1) — Repayment of amounts levied on the basis of invalid Community regulations — Determination of the applicable exchange rate

(C-234/10)

Reference for a preliminary ruling — Tribunal de grande instance de Nanterre — Validity, having regard to Article 15 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1), of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321, p. 1) — Fixing of production levies in the sugar sector — Determination of average loss

Operative part of the judgment

Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 is invalid, with the exception of Article 3 thereof, which has already been annulled as a result of the annulment, by the judgment of the General Court of the European Union of 29 September 2011 in Case T-4/06 Poland v Commission, of Article 2 of Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year.

2.	In the absence of provisions of European Union law on the matter, it is for the domestic legal system of the Member State concerned to determine the applicable exchange rate for calculating the compensation payable in respect of overpayments of production levies in the sugar sector.

Under European Union law, individuals entitled to reimbursement of sums paid unduly in respect of production levies in the sugar sector determined on the basis of an invalid regulation are also entitled to payment of the interest on such sums. A national court cannot use its discretion to refuse payment of interest on the sums levied by a Member State on the basis of an invalid regulation on the ground that that Member State cannot reclaim the corresponding interest on the European Union’s own resources.

(1) OJ C 134, 25.5.2010; OJ C 148, 5.6.2010; OJ C 221, 14.8.2010.

24.11.2012

Official Journal of the European Union

C 366/9

Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Vogtländische Straßen-, Tief- und Rohrleitungsbau GmbH Rodewisch (VSTR) v Finanzamt Plauen

(Case C-587/10) (1)

(Taxation - Value-added tax - Supply of goods - Taxation of chain transactions - Refusal to exempt on grounds of failure to produce the VAT identification number of the person acquiring goods)

2012/C 366/14

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Vogtländische Straßen-, Tief- und Rohrleitungsbau GmbH Rodewisch (VSTR)

Defendant: Finanzamt Plauen

Intervener in support of the defendant(s): Bundesministerium der Finanzen

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Supply of goods — Taxation of chain transactions — Purchase of goods by a company established in a Member State from another company, established in a third State and which is not registered for VAT purposes, which obtains its supplies from a company established in another Member State, the goods being dispatched directly by the supplier to the acquiring company — Situation where the supplier submits the acquirer’s VAT identification number

Operative part of the judgment

The first subparagraph of Article 28c(A)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 98/80/EC of 12 October 1998, should be interpreted as not precluding the tax authority of a Member State from making the exemption from VAT of an intra-Community supply subject to the provision by the supplier of the VAT identification number of the person acquiring the goods, with the proviso that the grant of that exemption should not be refused on the sole ground that that requirement was not fulfilled where the supplier, acting in good faith and having taken all the measures which can reasonably be required of him, is unable to provide that identification number but provides other information which is such as to demonstrate sufficiently that the person acquiring the goods is a taxable person acting as such in the transaction at issue.

(1) OJ C 80, 12.3.2011.

24.11.2012

Official Journal of the European Union

C 366/9

Judgment of the Court (Third Chamber) of 4 October 2012 (reference for a preliminary ruling from the Korkein oikeus — Finland) — Finnair Oyj v Timy Lassooy

(Case C-22/11) (1)

(Air transport - Regulation (EC) No 261/2004 - Compensation for passengers in the event of denied boarding - Concept of ‘denied boarding’ - Exclusion from characterisation as ‘denied boarding’ - Cancellation of a flight caused by a strike at the airport of departure - Rescheduling of flights after the cancelled flight - Right to compensation of the passengers on those flights)

2012/C 366/15

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Finnair Oyj

Defendant: Timy Lassooy

Re:

Reference for a preliminary ruling — Korkein oikeus — Interpretation of Articles 2(j), 4, 5 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Extraordinary circumstances — Flight cancelled because of a strike by staff at the airport of departure — Rescheduling of flights in order to attenuate the adverse effects for the passengers of the cancelled flight — Rescheduling also affecting later flights after the flight which was cancelled — Right to compensation of the passengers of those flights

Operative part of the judgment

The concept of ‘denied boarding’, within the meaning of Articles 2(j) and 4 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as relating not only to cases where boarding is denied because of overbooking but also to those where boarding is denied on other grounds, such as operational reasons.

Articles 2(j) and 4(3) of Regulation No 261/2004 must be interpreted as meaning that the occurrence of ‘extraordinary circumstances’ resulting in an air carrier rescheduling flights after those circumstances arose cannot give grounds for denying boarding on those later flights or for exempting that carrier from its obligation, under Article 4(3) of that regulation, to compensate a passenger to whom it denies boarding on such a flight.

(1) OJ C 80, 12.3.2011.

24.11.2012

Official Journal of the European Union

C 366/10

Judgment of the Court (Second Chamber) of 4 October 2012 — European Commission v Republic of Austria

(Case C-75/11) (1)

(Failure of a Member State to fulfil obligations - Citizenship of the Union - Right to move and reside freely - Articles 20 TFEU and 21 TFEU - Discrimination on grounds of nationality - Article 18 TFEU - Directive 2004/38/EC - Article 24 - Derogation - Scope - Member State in which reduced fares on public transport are granted only to students whose parents are in receipt of family allowances in that Member State)

2012/C 366/16

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz and D. Roussanov, Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer and M. Fruhmann, Agents)

Re:

Failure of Member State to fulfil obligations — Infringement of Articles 18, 20 and 21 TFEU and of Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC — Contracts concerning the sale of reduced-price travel tickets to students concluded between various bodies of a Member State and various public transport undertakings — Exclusion from entitlement to those reductions of students whose parents are not entitled to family benefits in that State

Operative part of the judgment

The Court:

Declares that, by granting reduced fares on public transport in principle only to students whose parents are in receipt of Austrian family allowances, the Republic of Austria has failed to fulfil its obligations under the combined provisions of Articles 18 TFEU, 20 TFEU and 21 TFEU and also Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

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

(1) OJ C 130, 30.4.2011.

24.11.2012

Official Journal of the European Union

C 366/11

Judgment of the Court (Second Chamber) of 4 October 2012 (reference for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Format Urządzenia i Montaże Przemysłowe sp. z o.o. v Zakład Ubezpieczeń Społecznych

(Case C-115/11) (1)

(Social security - Determination of the legislation applicable - Regulation (EEC) No 1408/71 - Article 14(2)(b) - Person normally employed in the territory of two or more Member States - Successive employment contracts - Employer established in the Member State of habitual residence of the worker - Employment performed exclusively in other Member States)

2012/C 366/17

Language of the case: Polish

Referring court

Sąd Apelacyjny w Warszawie

Parties to the main proceedings

Applicant: Format Urządzenia i Montaże Przemysłowe sp. z o.o.

Defendant: Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

Re:

Reference for a preliminary ruling — Sąd Apelacyjny w Warszawie — Interpretation of Article 14(2)(b) 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), as amended — Delimitation between the concepts of ‘person normally employed in the territory of two or more Member States’ and ‘posted worker’ — Worker employed by an undertaking established in his Member State of origin and carrying out his work exclusively in other Member States of the European Union, whilst retaining his residence and the centre of his vital interests in his State of origin

Operative part of the judgment

Article 14(2)(b) of Regulation (EEC) No 1408/71 of the Council 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 Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, cannot fall within the concept of ‘a person normally employed in the territory of two or more Member States’, within the meaning of that provision.

(1) OJ C 152, 21.5.2011.

24.11.2012

Official Journal of the European Union

C 366/11

Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Cour du travail de Bruxelles — Belgium) — Partena ASBL v Les Tartes de Chaumont-Gistoux SA

(Case C-137/11) (1)

(Social security for migrant workers - Regulation (EEC) No 1408/71 - Articles 13 and 14c - Legislation applicable - Self-employed persons - Social security scheme - Insurance - Person employed or unemployed in a Member State - Self-employed activity in another Member State - Company agent - Residence in a Member State other than the State where the company has its registered office - Management of the company from the State of residence - National legislation establishing an irrebuttable presumption of pursuing a professional activity as a self-employed person in the Member State where the company has its registered office - Obligatory insurance with that State’s social security scheme for self-employed persons)

2012/C 366/18

Language of the case: French

Referring court

Cour du travail de Bruxelles

Parties to the main proceedings

Applicant: Partena ASBL

Defendant: Les Tartes de Chaumont-Gistoux SA

Re:

Reference for a preliminary ruling — Cour du travail — Interpretation of Article 21 TFEU and Articles 13 and 14c of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community (OJ English Special Edition 1971 (II), p. 416) — Worker simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State — Whether a person who is resident in another Member State and who manages from abroad a company which is liable to tax in that State is covered by the social security scheme for self-employed persons — Non-discrimination and citizenship of the European Union

Operative part of the judgment

EU law, in particular Articles 13(2)(b) and 14c(b) 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 by Council Regulation (EC) No 1606/98 of 29 June 1998, and Annex VII thereto, precludes national legislation such as that at issue in the main proceedings in so far as it allows a Member State to presume irrebuttably that management from another Member State of a company subject to tax in the first Member State has taken place in that first Member State.

(1) OJ C 179, 18.6.2011.

24.11.2012

Official Journal of the European Union

C 366/12

Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Conseil d’Etat — France) — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

(Case C-179/11) (1)

(Applications for asylum - Directive 2003/9/EC - Minimum standards for the reception of asylum seekers in the Member States - Regulation (EC) No 343/2003 - Obligation to guarantee asylum seekers minimum reception conditions during the procedure of taking charge or taking back by the responsible Member State - Determining the Member State obliged to assume the financial burden of the minimum conditions)

2012/C 366/19

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicant: CIMADE, Groupe d’information et de soutien des immigrés (GISTI)

Defendant: Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

Re:

Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2002 L 31, p. 18) and of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) — Extent of the obligation to guarantee asylum seekers the enjoyment of minimum reception conditions throughout the duration of the procedure for taking charge of them or for taking them back by the Member State responsible — Determination of the Member State obliged to assume the financial burden of providing those minimum conditions during that period

Operative part of the judgment

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States must be interpreted as meaning that a Member State in receipt of an application for asylum is obliged to grant the minimum conditions for reception of asylum seekers laid down in Directive 2003/9 even to an asylum seeker in respect of whom it decides, under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant.

The obligation on a Member State in receipt of an application for asylum to grant the minimum reception conditions laid down in Directive 2003/9 to an asylum seeker in respect of whom it decides, under Regulation No 343/2003, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant, ceases when that same applicant is actually transferred by the requesting Member State, and the financial burden of granting those minimum conditions is to be assumed by that requesting Member State, which is subject to that obligation.

(1) OJ C 186, 25.6.2011.

24.11.2012

Official Journal of the European Union

C 366/12

Judgment of the Court (Second Chamber) of 4 October 2012 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti

(Case C-249/11) (1)

(Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - Directive 2004/38/EC - Article 27 - Administrative prohibition on leaving the territory on account of failure to pay a debt owed to a private legal person - Principle of legal certainty with regard to administrative acts which have become final - Principles of equivalence and effectiveness)

2012/C 366/20

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Hristo Byankov

Defendant: Glaven sekretar na Ministerstvo na vatreshnite raboti

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 4 TEU in conjunction with Articles 20 and 21 TFEU and of Article 52(1) of the Charter of Fundamental Rights — Interpretation of Articles 27(1) and Article 31(1) and (3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Restrictions on the right of freedom of movement — Order imposing an administrative measure prohibiting a debtor from leaving the territory on the ground of the non-recovery of a debt — Principle of legal certainty in relation to final administrative acts — Whether or not the competent administrative authority is obliged to re-examine the lawfulness of an administrative act which has not been the subject of an appeal and has therefore become final in order to ensure that there is no disproportionate restriction on the right of freedom of movement

Operative part of the judgment

European Union law must be interpreted as precluding the application of a national provision which provides for the imposition of a restriction on the freedom of movement, within the European Union, of a national of a Member State, solely on the ground that he owes a legal person governed by private law a debt which exceeds a statutory threshold and is unsecured.

European Union law must be interpreted as precluding legislation of a Member State under which an administrative procedure that has resulted in the adoption of a prohibition on leaving the territory such as that at issue in the main proceedings, which has become final and has not been contested before the courts, may be reopened — in the event of the prohibition being clearly contrary to European Union law — only in circumstances such as those exhaustively listed in Article 99 of the Code of Administrative Procedure (Administrativnoprotsesualen kodeks), despite the fact that such a prohibition continues to produce legal effects with regard to its addressee.

(1) OJ C 232, 6.8.2011.

24.11.2012

Official Journal of the European Union

C 366/13

Judgment of the Court (Third Chamber) of 4 October 2012 (reference for a preliminary ruling from the Juzgado de lo Mercantil No 2, A Coruña — Spain) — Germán Rodríguez Cachafeiro, María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA

(Case C-321/11) (1)

(Air transport - Regulation (EC) No 261/2004 - Compensation for passengers in the event of denied boarding - Concept of ‘denied boarding’ - Cancellation of a passenger’s boarding card by an air carrier because of the anticipated delay to an earlier flight also operated by it which included check-in for the flight concerned)

2012/C 366/21

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 2, A Coruña

Parties to the main proceedings

Applicants: Germán Rodríguez Cachafeiro, María de los Reyes Martínez-Reboredo Varela-Villamor

Defendant: Iberia, Líneas Aéreas de España SA

Re:

Reference for a preliminary ruling — Juzgado de lo Mercantil No 2 de A Coruña — Interpretation of Articles 2(j), 3(2), 4(3), 5 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Concept of ‘denied boarding’ — Denial of boarding on a connecting flight because of delay to the first flight attributable to the airline — Allocation of seats on the connecting flight to other passengers because it was envisaged that it would be impossible for the passengers in question to arrive in time to catch their connecting flight, which was not the case

Operative part of the judgment

Article 2(j) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in conjunction with Article 3(2) of Regulation No 261/2004, must be interpreted as meaning that the concept of ‘denied boarding’ includes a situation where, in the context of a single contract of carriage involving a number of reservations on immediately connecting flights and a single check-in, an air carrier denies boarding to some passengers on the ground that the first flight included in their reservation has been subject to a delay attributable to that carrier and the latter mistakenly expected those passengers not to arrive in time to board the second flight.

(1) OJ C 282, 24.9.2011.

24.11.2012

Official Journal of the European Union

C 366/14

Judgment of the Court (Fourth Chamber) of 4 October 2012 (reference for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — CS AGRO Ronov s.r.o. v Ministerstvo zemědělství

(Case C-390/11) (1)

(Agriculture - Sugar sector - Common organisation of the markets - Application for restructuring aid - Undertaking by the producer to cease delivery of a certain quantity of quota sugar beet - Definition - Unilateral declaration of the producer - Refusal to grant aid - Need to terminate the existing delivery contract)

2012/C 366/22

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: CS AGRO Ronov s.r.o.

Defendant: Ministerstvo zemědělství

Re:

Reference for a preliminary ruling — Nejvyšší správní soud — Interpretation of Article 4a of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42), as amended by Council Regulation (EC) No 1261/2007 of 9 October 2007 amending Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (OJ 2007 L 283, p. 8) — Common organisation of the markets in the sugar sector — Meaning of ‘undertaking’ having to accompany an application for restructuring aid, whereby a sugar beet producer enters into an obligation to cease delivery of a certain quantity of quota sugar beet to the undertakings with which it concluded a supply contract during the previous marketing year — Refusal to grant restructuring aid on the ground that that undertaking should take the form of termination of the existing supply contract rather than a unilateral declaration by the producer

Operative part of the judgment

Article 4a(1) of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the European Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy, as amended by Council Regulation (EC) No 1261/2007 of 9 October 2007, must be interpreted as meaning that the undertaking to cease delivery of a certain quantity of sugar beet during the marketing year 2008/2009 may take the form of a unilateral declaration by the producer.

Article 4a(1) of Regulation No 320/2006, as amended by Regulation No 1261/2007, must be interpreted as meaning that the unilateral undertaking of the producer to cease delivery of a certain quantity of sugar beet during the marketing year 2008/2009 does not as such entail the inapplicability of its contractual obligations towards the sugar company.

(1) OJ C 311, 22.10.2011.

24.11.2012

Official Journal of the European Union

C 366/14

Judgment of the Court (Sixth Chamber) of 4 October 2012 — European Commission v Kingdom of Belgium

(Case C-391/11) (1)

(Failure of a Member State to fulfil obligations - Directive 2000/53/EC - Article 2(3) - Protection of the environment - End-of-life vehicles - Notion of producer)

2012/C 366/23

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Marghelis and M. Patakia, acting as Agents)

Defendant: Kingdom of Belgium (represented by: C. Pochet and T. Materne, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Failure by a Member State to failing to adopt the measures necessary to comply with the provisions of Article 2(1) and (3) and Article 5(1), (2) and (4) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) — Notion of ‘vehicle’ and ‘producer’ — Free-of-charge delivery of end-of-life vehicles subject to conditions not provided for by the directive

Operative part of the judgment

The Court hereby:

1.	Dismisses the action

2.	Orders the European Commission and the Kingdom of Belgium each to bear their own costs.

(1) OJ C 305, 15.1.2011.

24.11.2012

Official Journal of the European Union

C 366/15

Judgment of the Court (Sixth Chamber) of 27 September 2012 (reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — Field Fisher Waterhouse LLP v Commissioners for Her Majesty’s Revenue and Customs

(Case C-392/11) (1)

(VAT - Exemption for leasing of immovable property - Leasing of commercial premises - Services connected with the leasing - Classification of the transaction for VAT purposes - Transaction consisting of a single supply or several independent supplies)

2012/C 366/24

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicant: Field Fisher Waterhouse LLP

Defendant: Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — First-tier Tribunal (Tax Chamber) — Interpretation of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Exemptions for other activities — Scope of the VAT exemption for the leasing of immovable property — Inclusion of charges for certain management and maintenance services for the building and the common parts — Classification of the transaction, for VAT purposes, as a single supply or as independent supplies — Interpretation of the Court's judgment of 11 June 2009 in Case C-572/07 RLRE Tellmer Property

Operative part of the judgment

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the leasing of immovable property and the supplies of services linked to that leasing, such as those at issue in the main proceedings, may constitute a single supply from the point of view of value added tax. The fact that the lease gives the landlord the right to terminate it if the tenant fails to pay the service charges supports the view that there is a single supply, but does not necessarily constitute the decisive element for the purpose of assessing whether there is such a supply. On the other hand, the fact that services such as those at issue in the main proceedings could in principle be supplied by a third party does not allow the conclusion that they cannot, in the circumstances of the dispute in the main proceedings, constitute a single supply. It is for the referring court to determine whether, in the light of the interpretative guidance provided by the Court in this judgment and having regard to the particular circumstances of the case, the transactions in question are so closely linked to each other that they must be regarded as constituting a single supply of the leasing of immovable property.

(1) OJ C 282, 24.9.2011.

24.11.2012

Official Journal of the European Union

C 366/15

Judgment of the Court (Sixth Chamber) of 4 October 2012 — Commission v Kingdom of Spain

(Case C-403/11) (1)

(Failure of Member State to fulfil obligations - Directive 2000/60/EC - River basin management plans - Publication and reporting to the Commission - Public information and consultation - Failure to undertake)

2012/C 366/25

Language of the case: Spanish

Parties

Applicant: European Commission (represented initially by I. Hadjiyannis and G. Valero Jordana, then by B. Simon, acting as Agents)

Defendant: Kingdom of Spain (represented by: A. Rubio González, agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 13(1), (2), (3) and (6), Article (14)(1)(c) and Article 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) — River basin management plans — Public information and consultation — Reporting of those management plans

Operative part of the judgment

The Court:

Declares that the Kingdom of Spain:

—

by failing to adopt, by 22 December 2009, river basin management plans, except in the case of the river basin district of Catalonia, and by failing to send to the European Commission and other Member States concerned, by 22 March 2010, copies of those plans, in accordance with Article 13(1) to (3) and (6) and Article 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, as amended by Directive 2008/32/EC of the European Parliament and of the Council of 11 March 2008, and

—

by not having undertaken, by no later than 22 December 2008, except in as regards the river basin districts of Catalonia, the Balearic Islands, Tenerife, Guadiana, Guadalquivir, Andalusian Mediterranean basin, Tinto-Odiel-Piedras, Guadalete-Barbate, Galician coast, Miño-Sil, Douro, Western Cantabria and Eastern Cantabria, the process of public information and consultation concerning the proposed river basin management plans, in accordance with Article 14(1)(c) of that directive,

has failed to fulfil its obligations under those provisions.

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

(1) OJ C 290, 1.10.2011.

24.11.2012

Official Journal of the European Union

C 366/16

Judgment of the Court (Seventh Chamber) of 4 October 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — PIGI — Pavleta Dimova ET v Direktor na Direktsia ‘Obzhalvane I upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-550/11) (1)

(Taxation - VAT - Directive 2006/112/EC - Right to deduction - Adjustment - Theft of goods)

2012/C 366/26

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: PIGI — Pavleta Dimova ET

Defendant: Direktor na Direktsia ‘Obzhalvane I upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Re:

Reference for a preliminary ruling — Administrativen sad — Varna — Interpretation of Article 185(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National tax practice under which the VAT deducted as input tax on the acquisition of goods must be adjusted if the goods are stolen — Concept of theft duly proved or confirmed

Operative part of the judgment

Article 185(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national tax provisions, such as those contained in Articles 79 and 80 of the Law on value added tax (Zakon za danak varhu dobavenata stoynost), which require, where a shortfall in the goods subject to value added tax has been established, that an adjustment be made to the deduction of that input tax at the time of acquisition of those goods, where the taxable person was the victim of a theft of those goods and the perpetrator has not been identified.

(1) OJ C 13, 14.1.2012.

24.11.2012

Official Journal of the European Union

C 366/16

Judgment of the Court (Seventh Chamber) of 4 October 2012 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-629/11 P) (1)

(Appeal - Public contract awarded by the Commission - Rejection of the tender - Obligation to state the reasons on which the decision is based - Regulation (EC, Euratom) No 1605/2002 - Article 100(2) - Time-limit for replying to a request for information - Regulation (EC, Euratom) No 2342/2002 - Article 149(2))

2012/C 366/27

Language of the case: English

Parties

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

Other party to the proceedings: European Commission (represented by: D. Calciu and S. Delaude, Agents, and P. Wytinck, advocaat)

Re:

Appeal against the judgment of the General Court (Second Chamber) of 20 September 2011 in Case T-298/09 Evropaïki Dynamiki v Commission dismissing an application first, for annulment of the Commission decision of 12 May 2009 rejecting the tender submitted by the applicant in response to call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752) and of the decision to award the contract to another tenderer and, second, for damages — Article 93(1)(f) of the Financial Regulation — Period of validity of tenders — Non-contractual liability

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

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

(1) OJ C 49, 18.2.2012.

24.11.2012

Official Journal of the European Union

C 366/17

Judgment of the Court (Fourth Chamber) of 4 October 2012 (reference for a preliminary ruling from the Conseil d’État — France) — ED & F Man Alcohols v Office national interprofessionnel des fruits, des légumes, des vins et de l'horticulture (Viniflhor)

(Case C-669/11) (1)

(Protection of the financial interests of the European Union - Regulation (EC, Euratom) No 2988/95 - Scope ratione materiae - Meaning of ‘detriment to the financial interests of the European Union’ - Individual invitation to tender for the export of vinous alcohol held by intervention agencies - Export of quantities of alcohol outside the European Union after the expiry of the prescribed time-limit - Retention of the performance guarantee - Administrative measures - Administrative penalties - Regulation (EC) No 360/95 - Regulation (EC) No 1623/2000 - Retroactive application of less severe penalty)

2012/C 366/28

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: ED & F Man Alcohols Ltd

Defendant: Office national interprofessionnel des fruits, des légumes, des vins et de l'horticulture (Viniflhor).

Re:

Reference for a preliminary ruling — Conseil d'État — Interpretation of Article 5(5) of Commission Regulation (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies (OJ 1995 L 41, p. 14), of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine, with regard to market mechanisms (OJ 2000 L 194, p. 45), of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1), and of the provisions of Commission Regulation (EEC) No 377/93 of 12 February 1993 laying down detailed rules for the disposal of alcohol obtained from the distillation operations referred to in Articles 35, 36 and 39 of Council Regulation (EEC) No 822/87 and held by intervention agencies (OJ 1993 L 43, p. 6) and of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (OJ 1985 L 205, p. 5) — Individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies for the purpose of an end use as motor fuel — Time-limit for export exceeded by the successful tenderer — Administrative penalties or other measures — Failure likely to prejudice the budget of the European Union

Operative part of the judgment

The failure of an operator to comply with the time-limit for export imposed in respect of quantities of alcohol obtained in an invitation to tender procedure organised by the European Commission, as governed by Commission Regulation (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies, constitutes an ‘irregularity’ within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests.

The loss in whole or in part of a performance guarantee, such as that provided for in Article 5(5) of Regulation No 360/95, or of a security to ensure export within the time allowed, such as that provided for in Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine, with regard to market mechanisms, is covered by the concept of ‘administrative penalty’ within the meaning of Article 5 of Regulation No 2988/95.

3.	In circumstances such as those of the main proceedings, Article 5(5) of Regulation No 360/95 constitutes the necessary legal basis for the imposition of a penalty consisting of the loss in whole or in part of a performance guarantee.

In circumstances such as those of the main proceedings, Article 2(2) of Regulation No 2988/95 must be interpreted as meaning that, in order to penalise a failure to comply with the time-limit allowed for the export to Brazil of quantities of alcohol obtained by invitation to tender under the provisions of Regulation No 360/95, the national authorities must apply the penalty laid down in Article 5(5) of the latter regulation, and not that laid down in Article 91(12) of Regulation No 1623/2000.

(1) OJ C 89, 24.3.2012.

24.11.2012

Official Journal of the European Union

C 366/18

Order of the Court (Fifth Chamber) of 18 June 2012 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Amorim Energia BV v Ministério das Finanças e da Administração Pública

(Case C-38/11) (1)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Articles 49 TFEU and 54 TFEU - Articles 63 TFEU and 65 TFEU - Directive 90/435/EEC - Article 3(2) - Tax legislation - Corporation tax - Taxation of dividends - Withholding tax - Exemption - Minimum holding in the company distributing dividends - Conditions - Minimum period of uninterrupted share ownership - Conditions - Resident and non-resident recipient companies - Different treatment)

2012/C 366/29

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Amorim Energia BV

Defendant: Ministério das Finanças e da Administração Pública

Intervener: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Articles 63 TFEU and 65 TFEU — National legislation subjecting dividends distributed to non-resident companies to tax rules less favourable than those applied to dividends distributed to resident companies — Non-resident companies required to have held shares for a longer minimum period of share holding and to possess a larger minimum holding

Operative part of the order

Articles 63 TFEU and 65 TFEU preclude the legislation of a Member State, such as that at issue in the main proceedings, which does not permit a company resident in another Member State with a holding of more than 10 % but less than 20 % in a company resident in Portugal to obtain exemption from the tax withheld at source on dividends distributed by the company resident in Portugal and therefore subjects those dividends to economic double taxation, whereas, if the dividends are distributed to shareholder companies resident in Portugal with the same kind of holdings, such economic double taxation is avoided. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention and, if so, to determine whether it enables the effects of the restriction on the free movment of capital to be neutralised.

Articles 49 TFEU and 54 TFEU preclude the legislation of a Member State, such as that at issue in the main proceedings, which permits a company resident in another Member State with a holding greater than 20 % in a company resident in Portugal to secure repayment of the tax deducted at source on dividends distributed by the company resident in Portugal only if it has had such a holding for an interrupted period of two years, and thus delays the elimination of economic double taxation by comparison with shareholder companies resident in Portugal with the same kind of shareholdings. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention and, if so, to determine whether it enables the effects of the restriction on the free movment of capital to be neutralised.

(1) OJ C 130, 30.4.2011.

24.11.2012

Official Journal of the European Union

C 366/18

Order of the Court of 12 July 2012 — Densmore Ronald Dover v European Parliament

(Case C-278/11 P) (1)

(Appeal - Rules governing the payment of expenses and allowances to Members of the European Parliament - Review of the use of allowances - Parliamentary assistance allowance - Justification of expenditure - Recovery of undue payments)

2012/C 366/30

Language of the case: English

Parties

Appellant: Densmore Ronald Dover (represented by: D. Vaughan QC, M. Lester, Barrister and R. Collard, Solicitor)

Other party to the proceedings: European Parliament (represented by: D. Moore and M. Windisch, acting as Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-149/09 Dover v European Parliament by which the General Court annulled in part the Decision of the Secretary-General of the European Parliament of 29 January 2009 to recover certain sums unduly paid to the appellant by way of expenses and parliamentary allowances

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Densmore Ronald Dover is ordered to pay the costs.

(1) OJ C 252, 27.8.2011.

24.11.2012

Official Journal of the European Union

C 366/19

Order of the Court of 12 July 2012 — Power-One Italy SpA v European Commission

(Case C-372/11 P) (1)

(Appeal - Non-contractual liability - Project co-funded by the financial instrument ‘LIFE’ - Development of a new system of supplying power for use in mobile telephony (‘Pneuma project’) - Commission decision to end the project and to recover the advance paid - Compensation for the loss allegedly sustained)

2012/C 366/31

Language of the case: Italian

Parties

Appellant: Power-One Italy SpA (represented by: R. Giuffrida and A. Giussani, avvocati)

Other party to the proceedings: European Commission (represented by: P. Oliver and D. Recchia, Agents)

Re:

Appeal against the order of the General Court (Sixth Chamber) of 24 May 2011 in Case T-489/08 Power-One Italy v Commission by which that court dismissed an action for compensation for the loss allegedly sustained by the appellant following the Commission’s decision to end the Pneuma project (LIFE04 ENV/IT/000595) intended to co-fund development of a new system of supplying power for use in mobile telephony — Legitimate expectations — Obligation to state reasons

Operative part of the order

1.	The appeal is dismissed.

2.	Power-One Italy SpA is ordered to pay the costs.

(1) OJ C 282, 24.09.2011.

24.11.2012

Official Journal of the European Union

C 366/19

Order of the Court (Fifth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel — Belgium) — Tate & Lyle Investments Ltd v Belgische Staat

(Case C-384/11) (1)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Article 63 TFEU - Tax legislation - Payment of dividends - Withholding tax - Prevention or mitigation of a series of charges to tax - Different treatment of resident recipient companies and non-resident recipient companies)

2012/C 366/32

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Tate & Lyle Investments Ltd

Defendant: Belgische Staat

Intervener: Syral Belgium NV

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Brussel — Interpretation of Article 63 TFEU — Restrictions on the free movement of capital — Tax legislation — Corporation tax — Tax on dividends — National rules providing for a 10 % withholding tax on dividends distributed by resident companies and on assimilated income — Imputation to corporation tax of the amount withheld possible only for resident companies

Operative part of the order

Article 63 TFEU must be interpreted as precluding the legislation of a Member State, such as that at issue in the main proceedings, which applies withholding tax to dividends distributed by a resident company to resident and non-resident recipient companies which have a holding of less than 10 % in the capital of the distributing company but with a purchase value of at least EUR 1.2 million, while at the same time providing a mechanism for the mitigation of a series of charges to tax only for resident recipient companies. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention, and, if so, to determine whether it enables the effects of the restriction on the free movement of capital to be neutralised.

(1) OJ C 282, 24.9.2011.

24.11.2012

Official Journal of the European Union

C 366/20

Order of the Court of 12 July 2012 — Government of Gibraltar v European Commission, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland

(Case C-407/11 P) (1)

(Appeal - Directive 92/43/EEC - Conservation of natural habitats - List of sites of Community importance for the Mediterranean biogeographical region - Inclusion in the list of the site ‘Estrecho oriental’ proposed by the Kingdom of Spain, which is stated to include an area of British Gibraltar territorial waters and an area of the high seas - Action for annulment - Application for partial annulment - Severability - Rights of the defence)

2012/C 366/33

Language of the case: English

Parties

Appellant: Government of Gibraltar (represented by: D. Vaughan QC and M. Llamas, Barrister)

Other parties to the proceedings: European Commission (represented by: D. Recchia and K. Mifsud-Bonnici, acting as Agents), Kingdom of Spain (represented by: N. Díaz Abad and M. Muñoz Pérez, acting as Agents), United Kingdom of Great Britain and Northern Ireland

Re:

Appeal against the order of the General Court (Seventh Chamber) of 24 May 2011 in Case T-176/09 Government of Gibraltar v Commission, by which that Court declared inadmissible an action for the partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049) to the extent that the decision adds to the list a site called ‘Estrecho Oriental’ (ES6120032), proposed by Spain, which is stated by the appellant to include an area of British Gibraltar territorial waters and an area of the high seas

Operative part of the order

1.	The appeal is dismissed.

2.	The Government of Gibraltar shall pay the costs.

3.	The Kingdom of Spain shall bear its own costs.

(1) OJ C 290, 1.10.2011.

24.11.2012

Official Journal of the European Union

C 366/20

Order of the Court of 27 June 2012 — Fuchshuber Agrarhandel GmbH v European Commission

(Case C-491/11 P) (1)

(Appeals - Common Agricultural Policy - Purchase of maize from the Hungarian intervention agency - Insufficient stocks - Alleged failure by the Commission in its obligation to conduct checks - Non-contractual liability)

2012/C 366/34

Language of the case: German

Parties

Appellant: Fuchshuber Agrarhandel GmbH (represented by: G. Lehner, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by: G. von Rintelen and D. Triantafyllou, Agents)

Re:

Appeal against the order of the General Court (Second Chamber) of 21 July 2011 in Case T-451/10 Fuchshuber Agrarhandel v Commission, by which that Court dismissed as manifestly lacking any foundation in law the action for damages seeking to obtain compensation for the loss allegedly suffered by reason of the Commission’s failure to check the conditions governing the implementation of standing invitations to tender for the resale on the Community market of cereals, in this case maize held by the Hungarian intervention agency.

Operative part of the order

The Court hereby orders:

1.	The appeal is dismissed.

2.	Fuchshuber Agrarhandel GmbH is ordered to pay the costs.

(1) OJ C 13, 14.01.2012.

24.11.2012

Official Journal of the European Union

C 366/20

Order of the Court of 15 June 2012 — United Technologies Corp. v European Commission

(Case C-493/11 P) (1)

(Appeals - Competition - Agreements, decisions and concerted practices - Market for the installation and maintenance of elevators and escalators - Fines - Parent company and subsidiaries - Imputability of the unlawful conduct)

2012/C 366/35

Language of the case: English

Parties

Appellant: United Technologies Corp. (represented by: A. Winckler and D. Gerard, lawyers, and by J. Temple Lang and C. Cook, Solicitors)

Other party to the proceedings: European Commission (represented by: A. Bouquet, R. Sauer and J. Bourke, acting as Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Joined Cases T-141/07, T-142/07, T-145/07 and T-146/07 General Technic-Otis and Others v Commission, by which the General Court dismissed an action for the partial annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/38.823 — Elevators and Escalators), concerning a cartel in the market for the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands, concerning bid-rigging, market-sharing, price-fixing, the awarding of projects and contracts related thereto and exchange of information, and, in the alternative, for the annulment or reduction of the fine imposed on the applicant — Liability of a parent company for infringements of the competition rules committed by its subsidiaries

Operative part of the order

1.	The appeal is dismissed.

2.	United Technologies Corporation shall pay the costs.

(1) OJ C 347, 26.11.2011.

24.11.2012

Official Journal of the European Union

C 366/21

Order of the Court of 15 June 2012 — Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis GmbH & Co. OHG, Otis BV, Otis Elevator Company v European Commission

(Case C-494/11 P) (1)

2012/C 366/36

Language of the case: English

Parties

Appellants: Otis Luxembourg Sàrl, formerly General Technic-Otis Sàrl, Otis SA, Otis GmbH & Co. OHG, Otis BV, Otis Elevator (represented by: A. Winckler and D. Gerard, lawyers, and by J. Temple Lang and C. Cook, Solicitors)

Other party to the proceedings: European Commission (represented by: A. Bouquet, R. Sauer and J. Bourke, Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Joined Cases T-141/07, T-142/07, T-145/07 and T-146/07 General Technic-Otis and Others v Commission, by which the General Court dismissed an action for the partial annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E 1/38.823 — Elevators and Escalators), concerning a cartel in the market for the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands, concerning bid-rigging, market-sharing, price-fixing, the awarding of projects and contracts related thereto and exchange of information, and, in the alternative, for the annulment or reduction of the fine imposed on the applicant — Liability of a parent company for infringements of the competition rules committed by its subsidiaries

Operative part of the order

1.	The appeal is dismissed.

2.	Otis Luxembourg Sàrl, Otis SA, Otis GmbH & Co. OHG, Otis BV and Otis Elevator Company shall pay the costs.

(1) OJ C 347, 26.11.2011.

24.11.2012

Official Journal of the European Union

C 366/21

Order of the Court of 12 July 2012 — Land Wien v European Commission

(Case C-608/11 P) (1)

(Appeal - Nuclear energy - Extension of the nuclear power station at Mochovce (Slovak Republic) - Commission decision to take no further action on complaint - Action for annulment - Refusal by the Commission to send the documents requested - Action for failure to act - Minimum requirements laid down in Article 44(1)(c) of the Rules of Procedure of the General Court - Inadmissibility)

2012/C 366/37

Language of the case: German

Parties

Appellant: Land Wien (represented by: W.-G. Schärf, lawyer)

Other party to the proceedings: European Commission (represented by: M. Patakia, P. Oliver and G. Wilms, agents)

Re:

Appeal against the order of the General Court (Sixth Chamber) of 20 September 2011 in Case T-267/10 Land Wien v Commission, by which the General Court dismissed the applicant’s action seeking, on the one hand, annulment of the Commission’s decision of 25 March 2010 to take no further action on its complaint regarding the project to extend blocks 3 and 4 of the nuclear power station at Mochovce (Slovak Republic) and, on the other hand, a declaration that the Commission failed to act, within the meaning of Article 265 TFEU, to the extent that not all the documents relating to that project were sent to the applicant, in breach of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) — Infringement of the right of access to documents, of the fourth paragraph of Article 263 TFEU and of the Euratom Treaty

Operative part of the order

1.	The appeal is dismissed.

2.	Land Wien is ordered to pay the costs.

(1) OJ C 25, 28.1.2012.

24.11.2012

Official Journal of the European Union

C 366/22

Action brought on 27 June 2012 — European Commission v Hungary

(Case C-310/12)

2012/C 366/38

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: P. Hetsch, D. Düsterhaus and A. Sipos, acting as Agent(s))

Defendant(s): Hungary

Form of order sought

—

Declare that Hungary has failed to fulfil its obligations under Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (1) since it has not adopted the laws, regulations and administrative provisions necessary to bring its national law into line with the Directive, or, in any event, has not communicated such provisions to the Commission, pursuant to Article 40 of the Directive.

—	Order Hungary to pay a penalty payment pursuant to Article 260(3) TFEU of EUR 27 316,80 per day from the date of judgment, as it has not notified the Commission of the national measures adopted to implement Directive 2008/98/EC.

—	Order Hungary to pay the costs.

Pleas in law and main arguments

Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives is the principal legal instrument in this sector and establishes, inter alia, the essential concepts of waste management, such as what is to be understood by the terms waste, recycling and recovery.

The period prescribed for the implementation of the Directive expired on 12 December 2010. Hungary informed the Commission that the legislative work on the implementation of the Directive was not finished. As provisions implementing the Directive have not been adopted to date, the Commission takes the view that Hungary has not fulfilled its obligations as regards the full implementation of the Directive.

Pursuant to Article 260(3) TFEU, in actions for failure to fulfil obligations pursuant to Article 258, the Commission may ask the Court of Justice to order, in its judgment declaring that the Member State has failed to fulfil its obligations, the Member State concerned to notify the Commission of the measures transposing a directive adopted under a legislative procedure, or it may specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In compliance with the Communication from the Commission on implementation of Article 260(3) of the TFEU, (2) the Commission calculated the proposed penalty payment according to the method for the implementation of Article 228 EC provided for in the Communication.

(1) OJ 2008 L 312, p. 3.

(2) OJ 2011 C 12, p. 1.

24.11.2012

Official Journal of the European Union

C 366/22

Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 30 July 2012 — Dr. Michael Timmel v Aviso Zeta AG

(Case C-359/12)

2012/C 366/39

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Dr. Michael Timmel

Intervener in support of the applicant: Lore Tinhofer

Defendant: Aviso Zeta AG

Questions referred

Is Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) (1) to be interpreted as meaning that information that is in principle mandatory which was not yet known at the time of approval of the base prospectus but was already known at the time of publication of a supplement to the prospectus is to be included in the supplement to the prospectus?

Is the derogation in Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’), according to which the inclusion of the information items within the meaning of the third sentence of Article 22(1) may be omitted, applicable even if that (mandatory) information was known before the issue date but after publication of the base prospectus in which that information was not included?

Is it possible to speak of lawful publication if only a base prospectus without the mandatory information under the third sentence of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) and in particular under Annex 5 (as regards securities with denomination per unit of less than EUR 50 000) was published and if the final terms were not subsequently published?

Is the requirement laid down in Article 29(1)(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) that the prospectus or the base prospectus must be easily accessible on the web-site, where these are made available, fulfilled:

(a)	if accessing, downloading as well as printing, require registration on the website on which access may subsequently take place, whereby registration requires acceptance of a disclaimer and communication of an e-mail address, or

(b)	if it is necessary to make a payment for that, or

(c)

if free of charge access to parts of a prospectus is restricted to two documents per month, but it is necessary to download at least three documents in order to obtain all the required information within the meaning of the third paragraph of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation No 809/2004’)?

Is Article 14(2)(b) of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (‘Directive 2003/71/EC’) (2) to be interpreted as meaning that the base prospectus must be made available at the registered office of the issuer and at the offices of the financial intermediaries?

(1) OJ 2004 L 149, p. 1.

(2) OJ 2003 L 345, p. 64.

24.11.2012

Official Journal of the European Union

C 366/23

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 1 August 2012 — Finanzamt Dortmund-West v Klinikum Dortmund gGmbH

(Case C-366/12)

2012/C 366/40

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Defendant and appellant: Finanzamt Dortmund-West

Claimant and respondent: Klinikum Dortmund gGmbH

Question referred

Must a closely related activity be a service in accordance with Article 6(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment Council Directive 77/388/EEC? (1)

2.	If question 1 is to be answered in the negative, is an activity closely related to hospital or medical care only if it was performed by the same taxable person as also provides the hospital or medical care?

If question 2 is to be answered in the negative, is an activity closely related even if the care is exempt from tax not under Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes but under subparagraph (c) of that provision?

(1) OJ L 145, p. 1.

24.11.2012

Official Journal of the European Union

C 366/24

Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 13 August 2012 — Hervis Sport- és Divatkereskedelmi Kft. v Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

(Case C-385/12)

2012/C 366/41

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Hervis Sport- és Divatkereskedelmi Kft.

Defendant: Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

Question referred

Is the fact that taxpayers engaged in store retail trade have to pay a special tax if their net annual turnover is higher than HUF 500 million compatible with the provisions of the EC Treaty governing the principle of the general prohibition of discrimination (Articles 18 TFEU and 26 TFEU), the principle of freedom of establishment (Article 49 TFEU), the principle of equal treatment (Article 54 TFEU), the principle of equal treatment as regards participation in the capital of companies or firms within the meaning of Article 54 (Article 55 TFEU), the principle of freedom to provide services (Article 56 TFEU), the principle of the free movement of capital (Articles 63 TFEU and 65 TFEU) and the principle of equality of taxation of companies (Article 110 TFEU)?

24.11.2012

Official Journal of the European Union

C 366/24

Reference for a preliminary ruling from the Cour d’appel (Luxembourg) lodged on 27 August 2012 — État du Grand-duché de Luxembourg, Administration de l’enregistrement et des domaines v Edenred Luxembourg SA

(Case C-395/12)

2012/C 366/42

Language of the case: French

Referring court

Cour d’appel

Parties to the main proceedings

Applicants: État du Grand-duché de Luxembourg, Administration de l’enregistrement et des domaines

Defendant: Edenred Luxembourg SA

Question referred

Are services carried out by an organisation issuing luncheon vouchers in Luxembourg for a restaurateur who is a member of its acceptance network exempt, either in full or in part, from VAT pursuant to Article 13B(d)(3) of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended, if a luncheon voucher is not a fully-fledged financial security and those services are not intended to guarantee payment for a meal purchased by an employee of the business customer (ibid. Article 13B(d)(2)), in the case of luncheon vouchers allocated by an employer to its employees under the State legislation …, given that membership of a luncheon vouchers network allows a member to profit from the custom of employees of the business customers of the luncheon voucher operator and that that operator is paying the processing costs for those luncheon vouchers?

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

24.11.2012

Official Journal of the European Union

C 366/24

Action brought on 11 September 2012 — European Commission v Republic of Cyprus

(Case C-412/12)

2012/C 366/43

Language of the case: Greek

Parties

Applicant: European Commission (represented by: G. Zavvos and D. Düsterhaus, Agents)

Defendant: Republic of Cyprus

Form of order sought

—

declare that the Republic of Cyprus has failed to fulfil its obligations under Article 14 of Council Directive 1999/31/EC (1) of 26 April 1999 on the landfill of waste, because not all the sites for the uncontrolled landfill of waste that operated on Cypriot territory have been decommissioned or been rendered compliant with the requirements of the directive;

—	order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

—	According to Article 14 of Directive 1999/31, existing landfill sites already in operation at the time of transposition of the directive may continue to operate only if the steps required by the European legislation are accomplished by 16 July 2009; otherwise their operation must cease.

—

The Cypriot authorities themselves acknowledge that, of the 115 sites for the uncontrolled landfill of waste (which because of the ‘uncontrolled’ nature of the waste disposal and management, do not fulfil the criteria of Article 14 of Directive 99/31 so as to be able to continue to operate) formerly operating on Cypriot territory, two remain in operation in the districts of Nicosia and Limassol and they are not expected to be decommissioned before the middle of 2015 or the beginning of 2016.

—

A certain improvement has been noted as regards waste management in Cypriot territory, but that occurred after a substantial delay since, under Article 14 of Directive 99/31, the necessary steps should have been completed by 16 July 2009, despite that, as the Cypriot authorities accept, two sites for the uncontrolled landfill of waste continue to operate without control and therefore the infringement of Article 14 of the directive remains, and is not expected to cease at least for the next three years.

(1) OJ 1999 L 182, p. 1.

24.11.2012

Official Journal of the European Union

C 366/25

Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany), lodged on 13 September 2012 — Bianca Brandes v Land Niedersachsen

(Case C-415/12)

2012/C 366/44

Language of the case: German

Referring court

Arbeitsgericht Nienburg

Parties to the main proceedings

Applicant: Bianca Brandes

Defendant: Land Niedersachsen

Question referred

Is the relevant European Union law, in particular Clause 4(1) and (2) of the Framework Agreement on part-time work contained in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, (1) as amended by Directive 98/23, (2) to be interpreted as precluding national statutory or collective provisions or practices under which, in the event of a change in the scale of a worker’s employment associated with a change in the number of days worked per week, the scale of the entitlement to leave which the worker was unable to exercise during the reference period is adjusted in such a way that, although the amount of leave entitlement, expressed in weeks, remains the same, the leave entitlement, expressed in days, is converted to the new scale of employment?

(1) Council Directive 97/81/EC of 15 December 1997 (OJ 1998 L 14, p. 9).

(2) Council Directive 98/23/EC of 7 April 1998 on the extension of Directive 97/81/EC on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC to the United Kingdom of Great Britain and Northern Ireland (OJ 1998 L 131, p. 10).

24.11.2012

Official Journal of the European Union

C 366/25

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy), lodged on 14 September 2012 — Crono Service Scarl and Others v Roma Capitale

(Case C-419/12)

2012/C 366/45

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Crono Service Scarl and Others

Defendant: Roma Capitale

Question referred

Do Article 49 TFEU, Article 3 TEU, Articles 3 TFEU, 4 TFEU, 5 TFEU, 6 TFEU, 101 TFEU and 102 TFEU preclude the application of Articles 3(3), 8(3) and 11 of Law No 21 of 1992 [on the carriage of passengers by public non-scheduled car and coach services] in so far as the latter provisions respectively provide that ‘[t]he registered office of the carrier, and the garage, must be located, exclusively, within the territory of the municipality which issued the authorisation’, that ‘[i]n order to obtain and maintain an authorisation for a car- and driver-hire service it is necessary to have the use, pursuant to a valid legal title, of a registered office, a garage or a vehicle rank located in the territory of the municipality which issued the authorisation’ and that ‘[b]ookings for car- and driver-hire services shall take place at the garage. Each individual car- and driver-hire service must begin and end at the garage located in the municipality in which the authorisation was issued, returning to that garage, although the collection of the user and the user’s arrival at his destination may take place also in other municipalities’?

24.11.2012

Official Journal of the European Union

C 366/26

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy), lodged on 14 September 2012 — Anitrav v Roma Capitale

(Case C-420/12)

2012/C 366/46

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Associazione Nazionale Imprese Trasporto Viaggiatori (Anitrav)

Defendant: Roma Capitale

Question referred

24.11.2012

Official Journal of the European Union

C 366/26

Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 26 September 2012 — ‘Slancheva sila’ EOOD v Izpalnitelnen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

(Case C-434/12)

2012/C 366/47

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant:‘Slancheva sila’ EOOD

Defendant: Izpalnitelnen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

Questions referred

1.	How is the concept ‘artificially created conditions’ to be interpreted in the light of the provision contained in Article 4(8) of Regulation No 65/2011? (1)

Is Article 4(8) of Regulation No 65/2011 to be interpreted as being incompatible with Article 7(2) of the Bulgarian Regulation No 29 of 11 August 2008, according to which financial aid is not to be granted to applicants/beneficiaries who are found to be functionally dependent and/or who have artificially created the conditions required for obtaining aid, with a view to obtaining an advantage contrary to the objectives of the measure?

Is Article 4(8) of Regulation No 65/2011 to be interpreted as being incompatible with the case-law in the Republic of Bulgaria, according to which the conditions required for obtaining an advantage contrary to the objectives of the measure have been artificially created if there is a legal connection between the applicants?

Does the use by different applicants who are independent legal persons of independent neighbouring sites which were part of a single property before the application was submitted, and does the actual connection that is found to exist, for example applicants having the same agents, suppliers, executives, place of business and address, constitute ‘artificially created conditions’?

5.	Is it necessary to establish that there is deliberate coordination between the applicants and/or a third party with a view to obtaining an advantage for a specific applicant?

What constitutes an advantage within the meaning of Article 4(8) of Regulation No 65/2011, in particular, does it include drawing up several smaller investment proposals with a view to a specific applicant receiving funding for each of them at the maximum rate of EUR 200 000 even if they were submitted by various different applicants?

Is Article 4(8) of Regulation No 65/2011 to be interpreted as calling into question the case-law in the Republic of Bulgaria, according to which the provision in fact requires that the following three cumulative conditions be met: 1. that there be functional dependence and/or artificially created conditions for obtaining aid, 2. that this be intended to obtain an advantage, and 3. that it be contrary to the objectives of the measure?

(1) Commission Regulation (EU) No 65/2011 of 27 January 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures (OJ 2011 L 25, p. 8).

24.11.2012

Official Journal of the European Union

C 366/27

Appeal brought on 3 October 2012 by Rivella International AG against the judgment of the General Court (Sixth Chamber) delivered on 12 July 2012 in Case T-170/11 Rivella International AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-445/12 P)

2012/C 366/48

Language of the case: German

Parties

Appellant: Rivella International AG (represented by: C. Spintig, S. Pietzcker and R. Jacobs, lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Baskaya di Baskaya Alim e C. Sas

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment under appeal and refer the case back to the General Court;

—	order the respondent to pay the costs of the appeal proceedings and the proceedings at first instance.

Pleas in law and main arguments

By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 12 July 2012 concerning an action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 (Case R 534/2010-4), relating to opposition proceedings between Rivella International AG and Baskaya di Baskaya Alim e C. Sas.

The appellant relies on the following grounds of appeal:

The General Court infringed Article 42(2) and (3) of Regulation No 207/2009 (1) in that it

—	requested proof of genuine use of the mark on which the opposition is based although that mark is not a Community trade mark or an ‘earlier national trade mark’, but the German part of an internationally registered mark;

—	took the view that the question of the territory in which an earlier (internationally) registered mark is used is exhaustively determined by Regulation No 207/2009 and that the national law of Member States to that extent applies only in a supplementary capacity;

—

did not take into account the fact that such an interpretation leads to a result which is not desired by Regulation No 207/2009 and in particular by recital 3 in the preamble to that regulation, namely to a dissociation between registration and the possibility of using a Community trade mark in cases which are not expressly covered by the regulation.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

24.11.2012

Official Journal of the European Union

C 366/28

Judgment of the General Court of 9 October 2012 — Italy v Commission

(Case T-426/08) (1)

(EAGGF - Guarantee Section - EAGF - Expenditure excluded from financing - Fruit and vegetables - Sugar - Processing of citrus fruits - Milk - Arable crops - Flat-rate financial correction - Proportionality - Obligation to state reasons - No error of assessment)

2012/C 366/52

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, agent)

Defendant: European Commission (represented by: P. Rossi and F. Jimeno, agents)

Re:

Application for annulment of Commission Decision 2008/582/EC of 8 July 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2008 L 186, p. 39), in so far as it excludes from Community financing EUR 174 704 912,66 of expenditure incurred by the Italian Republic.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Italian Republic to bear its own costs and those incurred by the European Commission.

(1) OJ C 301, 22.11.2008.

24.11.2012

Official Journal of the European Union

C 366/28

Judgment of the General Court of 5 October 2012 — Evropaïki Dynamiki v Commission

(Case T-591/08) (1)

(Public service contracts - Tendering procedure - Provision of information technology services - Selection of the tenderer as second contractor in the cascade procedure - Action for annulment - Grounds for exclusion from the tendering procedure - Conflict of interests - Obligation to state the reasons on which the decision is based - Manifest error of assessment - Equal treatment - Non-contractual liability)

2012/C 366/53

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and P. Katsimani, lawyers)

Defendant: European Commission (represented: initially by B. Simon and E. Manhaeve, acting as Agents, assisted by P. Wytinck, lawyer, and subsequently by E. Manhaeve, assisted by P. Wytinck and B. Hoorelbeke, lawyers)

Re:

Application for (i) annulment of the Commission decisions of 17 October 2008 selecting the applicant’s tender as second contractor in the cascade for Lots 2 and 3 under the call for tenders launched in the field of ‘Statistical Information Technologies’, concerning advisory and development services relating to the format for the exchange of statistical data and metadata (SDMX) (OJ 2008/S 120-159017), and of all further related decisions, including the decisions awarding the contract to other tenderers, and (ii) damages.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 82, 4.4.2009.

24.11.2012

Official Journal of the European Union

C 366/29

Judgment of the General Court of 10 October 2012 — Ningbo Yonghong Fasteners v Council

(Case T-150/09) (1)

(Dumping - Imports of certain iron or steel fasteners originating in China - Market economy treatment - Time-limit for adopting the decision on that treatment - Manifest error of assessment - Burden of proof - Adjustment to costs - Article 2(5) and (7)(b) and (c) of Regulation (EC) No 384/96 (now Article 2(5) and (7)(b) and (c) of Regulation (EC) No 1225/2009))

2012/C 366/54

Language of the case: English

Parties

Applicant: Ningbo Yonghong Fasteners Co. Ltd (Zhouhan, China) (represented by: F. Graafsma and J. Cornelis, lawyers)

Defendant: Council of the European Union (represented: initially by J.-P. Hix, acting as Agent, assisted by G. Berrisch and G. Wolf, lawyers, and subsequently by J.-P. Hix and B. Driessen, acting as Agents, assisted by Berrisch)

Interveners in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, acting as Agents); and European Industrial Fasteners Institute AISBL (EIFI) (Brussels, Belgium) (represented: initially by J. Bourgeois, Y. van Gerven and E. Wäktare, and subsequently by Bourgeois, lawyers)

Re:

Application for annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ningbo Yonghong Fasteners Co. Ltd to bear its own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL;

3.	Orders the European Commission to bear its own costs.

(1) OJ C 141, 20.6.2009.

24.11.2012

Official Journal of the European Union

C 366/29

Judgment of the General Court of 10 October 2012 — Greece v Commission

(Case T-158/09) (1)

(EAGGF - ‘Guarantee’ section - Expenditure excluded from financing - Clearance of accounts of the paying agencies of Member States concerning expenditure financed by the EAGGF - Negligence of the Member State in the recovery of sums wrongly paid - Liability of the Member State for the financial consequences of failure to recover)

2012/C 366/55

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Chalkias, S. Papaïoannou and V. Karra, agents)

Defendant: European Commission (represented by: F. Jimeno Fernández and E. Tserepa-Lacombe, agents, and N. Korogiannakis, lawyer)

Re:

Action for annulment or variation of Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of accounts in respect of expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), ‘Guarantee’ Section, in certain cases of irregularity by operators, in so far as that decision excludes from Community funding, and imposes on the Hellenic Republic liability for, a sum of EUR 13 348 979,02

Operative part of the judgment

The Court:

Annuls Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF) ‘Guarantee’ Section, in certain cases of irregularity by operators, in so far as it closes the files EL/1993/01 and EL/1994/031 and in that regard imposes on the Hellenic Republic liability for the sums of EUR 519 907 and EUR 300 914,99;

2.	Dismisses the action for the remainder;

3.	Orders the Hellenic Republic to bear four fifths of its own costs and to pay four fifths of the costs of the European Commission.

4.	orders the Commission to bear one fifth of its costs and one fifth of the costs of the Hellenic Republic.

(1) OJ C 153, 4.7.2009.

24.11.2012

Official Journal of the European Union

C 366/30

Judgment of the General Court of 10 October 2012 — Shanghai Biaowu High-Tensile Fasteners and Shanghai Prime Machinery v Council

(Case T-170/09) (1)

(Dumping - Imports of certain iron or steel fasteners originating in China - Market economy treatment - Time-limit for adopting the decision on that treatment - Principle of sound administration - Burden of proof - Obligation to state the reasons on which the decision is based - Article 2(7)(b) and (c) and (10) of Regulation (EC) No 384/96 (now Article 2(7)(b) and (c) and (10) of Regulation (EC) No 1225/2009))

2012/C 366/56

Language of the case: English

Parties

Applicants: Shanghai Biaowu High-Tensile Fasteners Co. Ltd (Baoshan, China) and Shanghai Prime Machinery Co. Ltd (Shanghai, China) (represented: initially by K. Adamantopoulos and Y. Melin, and subsequently by Melin, V. Akritidis and F. Crespo, lawyers)

Interveners in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, acting as Agents) and European Industrial Fasteners Institute AISBL (EIFI) (Brussels (Belgium)) (represented: initially by J. Bourgeois, Y. van Gerven and E. Wäktare, and subsequently by Bourgeois, lawyers)

Re:

Application for the partial annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Shanghai Biaowu High-Tensile Fasteners Co. Ltd and Shanghai Prime Machinery Co. Ltd to bear their own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL;

3.	Orders the European Commission to bear its own costs.

(1) OJ C 153, 4.7.2009.

24.11.2012

Official Journal of the European Union

C 366/30

Judgment of the General Court of 10 October 2012 — Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council

(Case T-172/09) (1)

(Dumping - Imports of certain iron or steel fasteners originating in China - Support of the complaint by the Community industry - Definition of the product concerned - Injury - Market economy treatment - Costs of major inputs substantially reflecting market values - Article 2(7)(b) and (c) of Regulation (EC) No 384/96 (now Article 2(7)(b) and (c) of Regulation (EC) No 1225/2009))

2012/C 366/57

Language of the case: English

Parties

Applicants: Gem-Year Industrial Co. Ltd (Zhejiang, China) and Jinn-Well Auto-Parts (Zhejiang) Co. Ltd (Zhejiang) (represented: initially by K. Adamantopoulos and Y. Melin, and subsequently by Melin, V. Akritidis and F. Crespo, lawyers)

Defendant: Council of the European Union (represented: initially by J.-P. Hix, acting as Agent, assisted by G. Berrisch and G. Wolf, lawyers, and subsequently by Hix and B. Driessen, acting as Agents, assisted by G. Berrisch)

Interveners in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, acting as Agents) and European Industrial Fasteners Institute AISBL (EIFI) (Brussels, Belgium) (represented: initially by J. Bourgeois, Y. van Gerven and E. Wäktare, and subsequently by J. Bourgeois, lawyers)

Re:

Application for the annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People's Republic of China (OJ 2009 L 29, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Gem-Year Industrial Co. Ltd and Jinn-Well Auto-Parts (Zhejiang) Co. Ltd to bear their own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL;

3.	Orders the European Commission to bear its own costs.

(1) OJ C 153, 4.7.2009.

24.11.2012

Official Journal of the European Union

C 366/31

Judgment of the General Court of 10 October 2012 — Evropaïki Dynamiki v Commission

(Case T-247/09) (1)

(Public service contracts - Tendering procedure - Supply of services relating to the production and dissemination of the Supplement to the Official Journal of the European Union and related offline and online media - Rejection of the bid of one tenderer and decision to award the contract to another tenderer - Obligation to state reasons - Equal treatment - Manifest error of assessment - Non-contractual liability)

2012/C 366/58

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission (represented by: N. Bambara and. E. Manhaeve, Agents, assisted initially by N. Dimopoulos, Solicitor, then by E. Petritsi, lawyer and lastly by O. Graber-Soudry, Solicitor)

Re:

First, annulment of the Commission decision of 7 April 2009, rejecting the bid submitted by the applicant in response to open Call for Tenders AO 10186 for the production and dissemination of the Supplement to the Official Journal of the European Union: TED website, OJS DVD-ROM and related Offline and Online media (OJ 2009/S 2-001445), along with the decision to award the contract to another tenderer and, second, a claim for damages and interest.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 205, 29.8.2009.

24.11.2012

Official Journal of the European Union

C 366/31

Judgment of the General Court of 10 October 2012 — Sviluppo Globale v Commission

(Case T-183/10) (1)

(Public service contracts - Public procurement procedure - Supply of technical assistance to the Government of Syria - Rejection of the tender - Duty to state reasons)

2012/C 366/59

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: F. Erlbacher, acting as Agent, and P. Manzini, lawyer)

Re:

Action for annulment of the Commission’s decision of 14 February 2010 not to accept the tender submitted by the consortium led by the applicant in the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to facilitate decentralisation and local development (OJ 2010 2009/S 223 319862)

Operative part of the judgment

The Court:

Annuls the Commission’s decision of 14 February 2010 not to accept the tender submitted by the consortium led by the applicant in the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to facilitate decentralisation and local development (OJ 2010 2009/S 223 319862);

2.	Orders the European Commission to bear its own costs and to pay those incurred by Sviluppo Globale GEIE.

(1) OJ C 179, 3.7.2010.

24.11.2012

Official Journal of the European Union

C 366/31

Judgment of the General Court of 5 October 2012 — Lancôme v OHIM — Focus Magazin Verlag (COLOUR FOCUS)

(Case T-204/10) (1)

(Community trade mark - Invalidity proceedings - Community word mark COLOR FOCUS - Earlier Community word mark FOCUS - Relative ground for refusal - Likelihood of confusion - Similarity of the marks - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 - Genuine use of the earlier mark - Abuse of right)

2012/C 366/60

Language of the case: English

Parties

Applicant: Lancôme parfums et beauté & Cie (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by S. Schäffner, and subsequently by A. Folliard-Monguiral, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Focus Magazin Verlag GmbH (Munich, Germany) (represented by R. Schweizer and J. Berlinger, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 11 February 2010 (Case R 238/2009-2), concerning invalidity proceedings between Focus Magazin Verlag GmbH and Lancôme parfums et beauté & Cie

Operative part of the judgment

1.	The action is dismissed.

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

(1) OJ C 179, 3.7.2010.

24.11.2012

Official Journal of the European Union

C 366/32

Judgment of the General Court of 11 October 2012 — Novatex v Council

(Case T-556/10) (1)

(Subsidies - Imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates - Definitive countervailing duty and definitive collection of provisional duty - Article 3(1) and (2), Article 6(b), and Article 7(2) of Regulation (EC) No 597/2009)

2012/C 366/61

Language of the case: English

Parties

Applicant: Novatex Ltd (Karachi, Pakistan) (represented by: B. Servais, lawyer)

Defendant: Council of the European Union (represented by: B. Driessen, Agent, assisted by G. Berrisch, lawyer, and N. Chesaites, Barrister)

Intervener in support of the defendant: European Commission (represented by: H. van Vliet, M. França and G. Luengo, acting as Agents)

Re:

Application for annulment of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitely the provisional duty imposed on imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (OJ 2010 L 254, p. 10), in so far as it concerns the applicant.

Operative part of the judgment

The Court:

Annuls Article 1 of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain types of polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates in so far as it concerns Novatex Ltd, in so far as the definitive countervailing duty for imports of certain types of polyethylene terephthalate into the European Union exceeds that applicable in the absence of the error concerning the amount indicated in line 74 of the 2008 tax return.

2.	Dismisses the action as to the remainder.

3.	Orders the Council of the European Union to pay its own costs and 50 % of those incurred by Novatex. Novatex is ordered to bear 50 % of its own costs. The European Commission is ordered to bear its own costs.

(1) OJ C 30, 29.1.2011.

24.11.2012

Official Journal of the European Union

C 366/32

Judgment of the General Court of 10 October 2012 — Bimbo v OHIM — Panrico (BIMBO DOUGHNUTS)

(Case T-569/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark BIMBO DOUGHNUTS - Earlier national word mark DOGHNUTS - Relative ground for refusal - Article 75 of Regulation (EC) No 207/2009 - Article 76(2) of Regulation No 207/2009 - Article 8(1)(b) of Regulation No 207/2009 - Application for alteration - Admissibility)

2012/C 366/62

Language of the case: English

Parties

Applicant: Bimbo SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Panrico SA (Barcelona, Spain) (represented by D. Pellisé Urquiza, lawyer)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 October 2010 (Case R 838/2009-4) concerning opposition proceedings between Panrico SA and Bimbo SA.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Bimbo SA to pay, in addition to its own costs, those incurred by OHIM;

3.	Orders Panrico SA to bear its own costs.

(1) OJ C 46, 12.2.2011.

24.11.2012

Official Journal of the European Union

C 366/32

Judgment of the General Court of 10 October 2012 — Wessang v OHIM — Greinwald (star foods)

(Case T-333/11) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark star foods - Earlier Community word and figurative marks STAR SNACKS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 366/63

Language of the case: German

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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, intervener before the Court: Greinwald GmbH (Kempten, Germany) (represented by: A. Schulz and C. Onken, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 April 2011 (Case R 1837/2010-4) relating to opposition proceedings between Mr Nicolas Wessang and Greinwald GmbH.

Operative part of the judgment

The Court:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 April 2011 (Case R 1837/2010-4) in relation to goods falling within Classes 29, 30 and, with the exception of ‘beers’, within Class 32 within the meaning of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2.	Dismisses the action as to the remainder;

3.	Orders OHIM to bear its own costs and three-quarters of the costs of Mr Nicolas Wessang;

4.	Orders Mr Wessang to bear one-quarter of his own costs;

5.	Orders Greinwald GmbH to bear its own costs.

(1) OJ C 269, 10.9.2011.

24.11.2012

Official Journal of the European Union

C 366/33

Judgment of the General Court of 9 October 2012 — Bial-Portela v OHIM — Isdin (ZEBEXIR)

(Case T-366/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ZEBEXIR - Earlier Community word mark ZEBINIX - Relative grounds for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 366/64

Language of the case: English

Parties

Applicant: Bial-Portela & C a , SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J.M. Conceição Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Isdin, SA (Barcelona, Spain) (represented by: P. López Ronda, G. Macias Bonilla, G. Marín Raigal and H.L. Curtis-Oliver, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 April 2011 (Case R 1212/2009-1), concerning opposition proceedings between Bial-Portela & Ca, SA and Isdin, SA

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 6 April 2011 (Case R 1212/2009-1);

2.	Orders OHIM to bear its own costs and to pay those of Bial-Portela & Ca, SA;

3.	Orders Isdin, SA to bear its own costs.

(1) OJ C 269, 10.9.2011.

24.11.2012

Official Journal of the European Union

C 366/33

Judgment of the General Court of 16 October 2012 — Monier Roofing Components v OHIM (CLIMA COMFORT)

(Case T-371/11) (1)

(Community trade mark - Application for the Community word mark CLIMA COMFORT - Absolute ground for refusal - Lack of distinctiveness - Article 7(1)(b) of Regulation (EC) No 207/2009 - Right to be heard - Second sentence of Article 75 of Regulation No 207/2009 - Ex officio examination of the facts - Article 76(1) of Regulation No 207/2009)

2012/C 366/65

Language of the case: German

Parties

Applicant: Monier Roofing Components (Oberursel, Germany) (represented by: F. Ekey, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 April 2011 (Case R 2026/2010-1), concerning an application for registration of the word sign CLIMA COMFORT as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Monier Roofing Components GmbH to pay the costs.

(1) OJ C 269, 10.9.2011.

24.11.2012

Official Journal of the European Union

C 366/34

Order of the General Court of 3 October 2012 — Tecnimed v OHIM — Ecobrands (ZAPPER-CLICK)

(Case T-360/10) (1)

(Community trade mark - Period allowed for bringing proceedings - Out of time - No unforeseeable circumstances - No force majeure - Right of access to a court - Manifest inadmissibility)

2012/C 366/66

Language of the case: English

Parties

Applicant: Tecnimed Srl (Vedano Olona, Italy) (represented by: M. Franzosi and V. Piccarreta, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ecobrands Ltd (London, United Kingdom)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 14 June 2010 (Case R 1795/2008-4), concerning invalidity proceedings between Tecnimed Srl and Ecobrands Ltd.

Operative part of the order

The Court:

1.	Dismisses the action;

2.	Orders Tecnimed Srl to pay the costs.

(1) OJ C 55, 19.2.2011.

24.11.2012

Official Journal of the European Union

C 366/34

Order of the General Court of 11 October 2012 — Cervelli v Commission

(Case T-622/11 P) (1)

(Appeals - Civil service - Officials - Expatriation allowance - Request for review - New facts - Appeal manifestly unfounded)

2012/C 366/67

Language of the case: French

Parties

Appellant: Francesca Cervelli (Brussels, Belgium) (represented by: J. García-Gallardo Gil-Fournier, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and V. Joris, Agents)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (Third Chamber) of 12 September 2011 in Case F-98/10 Cervelli v Commission, and seeking that that order be set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	Ms Francesca Cervelli shall bear her own costs and pay those incurred by the European Commission in the present proceedings.

(1) OJ C 32, 4.2.2012.

24.11.2012

Official Journal of the European Union

C 366/34

Order of the General Court of 28 September 2012 — Heads! v OHIM (HEADS)

(Case T-639/11) (1)

(Community trade mark - Refusal to register - Withdrawal of the application to register - No need to adjudicate)

2012/C 366/68

Language of the case: German

Parties

Applicant: Heads! GmbH & Co. KG (Munich, Germany) (represented by: A. Jaeger-Lenz and T. Bösling, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Walicka, agent)

Re:

Action against the decision of the First Board of Appeal of OHIM of 11 October 2011 (Case R 2348/2010-1) relating to an application for registration of the word mark ‘HEADS’ as a Community trade mark.

Operative part of the order

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

2.	The applicant is ordered to pay the costs.

(1) OJ C 49, 18.2.2012.

24.11.2012

Official Journal of the European Union

C 366/34

Order of the General Court of 9 October 2012 — Région Poitou-Charentes v Commission

(Case T-31/12) (1)

(Action for annulment - Structural Funds - Measure not subject to review - Measure in part informative and in part preparatory - Inadmissibility)

2012/C 366/69

Language of the case: French

Parties

Applicant: Région Poitou-Charentes (France) (represented by: J. Capiaux, lawyer)

Defendant: European Commission (represented by: F. Dintilhac and A. Steiblytė, Agents)

Re:

Application for annulment of the decision allegedly contained in the Commission’s letter of 18 November 2011, mentioning as its subject: ‘Closure of the program “Atlantic Area” 2000-2006, Approval of the Final Report, CCI: 2001 RG 16 0PC 006’.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	The Région Poitou-Charentes shall bear its own costs and pay those incurred by the European Commission.

(1) OJ C 109, 14.4.2012.

24.11.2012

Official Journal of the European Union

C 366/35

Order of the General Court of 8 October 2012 — ClientEarth v Council

(Case T-62/12) (1)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Opinion issued by the legal service of the Council concerning a draft regulation of the Parliament and of the Council related to public access to the documents of the Parliament, of the Council and of the Commission - Confirmation of a refusal to grant full access - Inadmissibility - Period allowed for commencing proceedings - Notion of measure open to challenge for the purposes of Article 263 TFEU - Confirmatory measure)

2012/C 366/70

Language of the case: English

Parties

Applicant: ClientEarth (London, United Kingdom) (represented by: O. Brouwer and P. van den Berg, lawyers)

Defendant: Council of the European Union (represented by: B. Driessen and C. Fekete, Agents)

Re:

Annulment of the Council’s decision of 1 December 2011 confirming the decision to refuse the applicant full access to an opinion issued by the legal service of the Council (Document No 6865/09) concerning a draft regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no need to adjudicate on the applications for leave to intervene of the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden.

3.	ClientEarth is ordered to pay the costs.

(1) OJ C 109, 14.4.2012.

24.11.2012

Official Journal of the European Union

C 366/35

Order of the General Court of 11 October 2012 — EDF v Commission

(Case T-389/12 R)

(Application for interim measures - Competition - Concentrations - Electricity market - Decision authorising a concentration operation subject to compliance with certain commitments - Refusal to grant the postponement of the deadline set for fulfilling those commitments - Application for interim measures - Lack of urgency)

2012/C 366/71

Language of the case: English

Parties

Applicant: Électricité de France (EDF) (Paris (France)) (represented by: A. Creus Carreras and A. Valiente Martin, lawyers)

Defendant: European Commission (represented by: C. Giolito and S. Noë, Agents)

Re:

Application for interim measures in relation to Commission Decision C(2012) 4617 final of 28 June 2012 refusing to grant the applicant the postponement of the deadline fixed for fulfilling some of its commitments set out in Decision C(2009) 9059 of 12 November 2009, which authorises the concentration operation whereby Électricité de France was to acquire exclusive control of the assets of Segebel (Case COMP/M.5549 — EDF/Segebel).

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

24.11.2012

Official Journal of the European Union

C 366/35

Action brought on 14 August 2012 — Capitalizaciones Mercantiles v OHIM — Leineweber (X)

(Case T-378/12)

2012/C 366/72

Language in which the application was lodged: English

Parties

Applicant: Capitalizaciones Mercantiles Ltda (Bogota, Colombia) (represented by: J. Devaureix, and L. Montoya Terán, lawyers)

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

Other party to the proceedings before the Board of Appeal: Leineweber GmbH & Co. KG (Herford, Germany)

Form of order sought

—	Admit this application for annulment, with all the documents annexed, and the corresponding copies;

—	Admit all the pieces of evidence attached to the writ;

—

Hold for the applicant, leaving with no effect the decision issued by the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2012 in case R 1524/2011-1, regarding CTM application No 7045818, and consequently, confirm the decision of the Opposition Division of 25 May 2011 which granted registration of the CTM No 7045818 ‘X’ (figurative) for goods in class 25; and

—	Order the defendant to bear the costs of these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘X’ for goods in class 25 — Community trade mark application No 7045818

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: Community trade mark registration No 4736609 of the figurative mark ‘X’, for, among others, goods in class 25

Decision of the Opposition Division: Rejected the opposition for all the contested goods

Decision of the Board of Appeal: Annulled the contested decision and rejected the contested application for the goods in class 25

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

24.11.2012

Official Journal of the European Union

C 366/36

Action brought on 14 September 2012 — Celtipharm v OHIM — Alliance Healthcare France (PHARMASTREET)

(Case T-411/12)

2012/C 366/73

Language in which the application was lodged: French

Parties

Applicant: Celtipharm (Vannes, France) (represented by: P. Greffe and C. Fendeleur, lawyers)

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

Other party to the proceedings before the Board of Appeal: Alliance Healthcare France SA (Gennevilliers, France)

Form of order sought

—	Annul the decision corrigendum (of the decision of 2 May 2012) of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 June 2012 in Case R 767/2011-2.

Pleas in law and main arguments

Applicant for a Community trade mark: Alliance Healthcare France SA

Community trade mark concerned: Word mark ‘PHARMASTREET’ for goods and services in Classes 3, 5 and 35 — application for Community trade mark No 8 658 445

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

Mark or sign cited in opposition: National word mark ‘PHARMASEE’ for goods and services in Classes 9, 35, 38, 42 and 44

Decision of the Opposition Division: The opposition is upheld in part

Decision of the Board of Appeal: The appeal is granted and the decision of the Opposition Division is annulled

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

24.11.2012

Official Journal of the European Union

C 366/36

Action brought on 21 September 2012 — Beninca v Commission

(Case T-418/12)

2012/C 366/74

Language of the case: English

Parties

Applicant: Jürgen Beninca (Frankfurt am Main, Germany) (represented by: C. Zschocke, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Annul Commission’s decision of 26 July 2012, implicitly refusing access to a document produced in the framework of merger proceedings (Case COMP/M.6166 — NYSE Euronext/Deutsche Börse); and

—	Order the defendant 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 that the Commission has not rendered a decision on the applicant’s request to access to a certain document within the time limit foreseen by Article 8(2) of Regulation No 1049/2001 (1). Pursuant to Article 8(3) of the Regulation, this constitutes an implicit negative and unreasoned decision and thereby constitutes a violation of relevant provisions on access to documents.

2.	Second plea in law, alleging that none of the arguments raised by the Commission, in its preliminary assessment, justify denying the applicant access to the requested document.

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

24.11.2012

Official Journal of the European Union

C 366/37

Action brought on 26 September 2012 — Banco Bilbao Vizcaya Argentaria v OHIM (VALORES DE FUTURO)

(Case T-428/12)

2012/C 366/75

Language of the case: Spanish

Parties

Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain) (represented by J. de Oliveira Vaz Miranda Sousa and N. González-Alberto Rodríguez, 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 part of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2012 in Case R 2299/2011-2 which confirms the refusal to register Community trade mark No 9 408 758; and

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘VALORES DE FUTURO’ for goods and services in Classes 16, 36 and 41 — Community trade mark application No 9 408 758

Decision of the Examiner: rejection in part of the application for registration

Decision of the Board of Appeal: appeal dismissed

Pleas in law:

—	Infringement of Article 7(1)(c) of Regulation No 207/2009

—	Infringement of Article 7(1)(b) of Regulation No 207/2009

24.11.2012

Official Journal of the European Union

C 366/37

Action brought on 28 September 2012 — Distillerie Bonollo and Others v Council

(Case T-431/12)

2012/C 366/76

Language of the case: English

Parties

Applicants: Distillerie Bonollo SpA (Formigine, Italy); Industria Chimica Valenzana (ICV) SpA (Borgoricco, Italy); Distillerie Mazzari SpA (Sant'Agata sul Santerion, Italy); Caviro Distillerie Srl (Faenza, Italy); and Comercial Química Sarasa, SL (Madrid, Spain) (represented by: R. MacLean, Solicitor)

Defendant: Council of the European Union

Form of order sought

—

Annul Article 1 of Council Implementing Regulation (EU) 626/2012 of 26 June 2012, imposing definitive anti-dumping duties on imports of tartaric acid originating in the People’s Republic of China (1) (the ‘Contested Regulation’) to the extent that the anti-dumping duty rates applied to Ninghai Organic Chemical Factory and Changmao Biochemical Engineering Company Co. Ltd have been unlawfully established on the grounds of manifest errors of assessment vitiating the measure, breaches of Articles 2 and 11(9) of Council Regulation (EC) 1225/2009 (2) (the ‘Basic Anti-Dumping Regulation’), violations of the applicants rights of defence and failure to sufficiently motivate the Contested Regulation;

—	Order the continuation of the Contested Regulation in force until the Council has adopted the measures necessary to comply with the Court’s judgment in compliance with Article 264 of the Treaty on the functioning of the European Union;

—	Order the defendant and any interveners to pay the applicants legal costs and expenses of the procedure.

Pleas in law and main arguments

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

First plea in law, alleging that the defendant made a manifest error of assessment by changing the methodology applied to establish analogue country normal value without sufficient justification to support changed circumstances and, in doing so, infringed Article 11(9) of the Basic Anti-Dumping Regulation.

2.	Second plea in law, alleging that the defendant made a manifest error of assessment by disregarding actual domestic sales prices in the analogue country and wrongly resorting to constructed values in breach of Articles 2(1), 2(2), 2(7)(a) and 2(7)(b) of the Basic Anti-Dumping Regulation.

Third plea in law, alleging that the defendant made a manifest error of assessment in using the US and Western European prices for benzene in place of the actual raw material costs in the country of production in breach of Article 2(3) of the Basic Anti-Dumping Regulation and so arrived at a flawed value for the normal value applied in the review.

Fourth plea in law, alleging that the defendant made manifest errors of assessment caused by distorting the costs of production in the constructed normal value that was reached and by using costs for raw materials that were not equivalent in breach of Article 2(3) of the Basic Anti-Dumping Regulation.

Fifth plea in law, alleging that the defendant and the European Commission infringed the applicants’ rights of defence by failing to provide access to the information necessary to properly understand the methodology applied towards the establishment of the normal value and also failed to provide adequate motivations for key issues relating to the calculation of the analogue country normal value and the corresponding dumping margins applied thereby vitiating the Contested Regulation.

(1) Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Council Implementing Regulation (EU) 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (OJ 2012 L182, p. 1).

(2) Council Regulation (EC) No 1225/2009 on Protection Against Dumped Imports from Countries not Members of the European Community (OJ 2009 L343, p. 51), as amended.

24.11.2012

Official Journal of the European Union

C 366/38

Action brought on 26 September 2012 — VTZ and Others v Council

(Case T-432/12)

2012/C 366/77

Language of the case: English

Parties

Applicants: Volžskij trubnyi zavod OAO (VTZ OAO) (Volzhsky, Russia); Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO) (Taganrog, Russia); Sinarskij trubnyj zavod OAO (SinTZ OAO) (Kamensk-Uralsky, Russia); and Severskij trubnyj zavod OAO (STZ OAO) (Polevskoy, Russia) (represented by: J.-F. Bellis, F. Di Gianni, G. Coppo and C. Van Hemelrijck, lawyers)

Defendant: Council of the European Union

Form of order sought

—

Annul, as far as the applicants are concerned, Council Implementing Regulation (EU) No 585/2012 of 26 June 2012 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel, originating in Russia and Ukraine, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain seamless pipes and tubes, of iron or steel, originating in Croatia (OJ 2012 L 174, p. 5); and

—	Order the defendant to bear the costs of these proceedings.

Pleas in law and main arguments

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

1.	First plea in law, alleging that by cumulating imports from Russia with imports from Ukraine, the Council manifestly erred in the appraisal of the facts, violated Article 3(4) of the Council Regulation (EC) No 1225/2009 (1) (the ‘Basic Regulation’) and infringed the principle of equal treatment.

2.	Second plea in law, alleging that by concluding that the repeal of the measures is likely to lead to injury recurring the Council infringed the principle of equal treatment and manifestly erred in the appraisal of facts and, therefore, infringed Article 11(2) of the Basic Regulation.

3.	Third plea in law, alleging that the Council infringed Articles 9(4) and 21 of the Basic Regulation and the principle of equal treatment by committing a manifest error of assessment as concerns the analysis of the Union interest.

Fourth plea in law, alleging that the Council infringed the principle of sound administration and the applicants’ rights of defence by failing to examine the arguments raised by the applicants during the investigation and to provide the applicants with the disclosure of essential facts and considerations concerning the case, the duty to state reasons and the principle of sound administration and the rights of defence of the applicants by providing the Member States with information on the case prior to receiving any comments from the applicants and by consulting the Anti-Dumping Advisory Committee before the applicants had been heard.

(1) Council Regulation (EC) No 1225/2009 on Protection Against Dumped Imports from Countries not Members of the European Community (OJ 2009 L343, p. 51), as amended.

24.11.2012

Official Journal of the European Union

C 366/39

Action brought on 28 September 2012 — Steiff v OHIM (Metal button in the middle section of the ear of a soft toy)

(Case T-433/12)

2012/C 366/78

Language of the case: German

Parties

Applicant: Margarete Steiff GmbH (Giengen an der Brenz, Germany) (represented by D. Fissl, lawyer)

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 23 July 2012 in Case R 1693/2011-1;

—	Annul OHIM’s rejection of Community trade mark application No 9 439 613;

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the positional mark with which protection is claimed for a gleaming or matt, round metal button fastened to the middle section of the ear of a soft toy for goods in Class 28 — Community trade mark application No 9 439 613

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) of Regulation No 207/2009

24.11.2012

Official Journal of the European Union

C 366/39

Action brought on 28 September 2012 — Steiff v OHIM (Fabric tag with metal button in the middle section of the ear of a soft toy)

(Case T-434/12)

2012/C 366/79

Language of the case: German

Parties

Applicant: Margarete Steiff GmbH (Giengen an der Brenz, Germany) (represented by D. Fissl, lawyer)

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 19 July 2012 in Case No R 1692/2011-1;

—	Annul OHIM’s rejection of Community trade mark application No 9 439 654;

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the positional mark with which protection is claimed for a rectangular, elongated fabric tag fastened to the middle section of the ear of a soft toy by means of a gleaming or matt, round metal button for goods in Class 28 — Community trade mark application No 9 439 654

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) of Regulation No 207/2009

24.11.2012

Official Journal of the European Union

C 366/39

Action brought on 5 October 2012 — Changmao Biochemical Engineering v Council

(Case T-442/12)

2012/C 366/80

Language of the case: English

Parties

Applicant: Changmao Biochemical Engineering Co. Ltd (Changzhou, China) (represented by: E. Vermulst and S. Van Cutsem, lawyers)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (OJ 2012 L 182, p. 1) in so far as it relates to the applicant; and

—	Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

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

First plea in law, alleging that the defendant committed a manifest error of appraisal and an infringement of Article 2(7)(c), first indent, of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) by rejecting the market economy treatment claim of the applicant on the basis of alleged distortion of the price of the raw material benzene. The Union institutions committed a manifest error of appraisal as they compared the prices of benzene produced from coke with benzene produced from petroleum, and based their assessment on an export duty on benzene, which they acknowledged was not in force. In addition, the institutions infringed Article 2(7)(c), first indent, of Council Regulation (EC) No 1225/2009 by considering that the absence of VAT refund on exports of benzene constituted significant State interference in the applicant’s business decisions.

Second plea in law, alleging that the defendant committed a manifest error of appraisal and infringement of Article 11(3) of Council Regulation (EC) No 1225/2009 since the Council should have granted market economy treatment to the applicant during the interim review and therefore erroneously concluded that the circumstances with regard to dumping have changed significantly and that these changes were of a lasting nature.

Third plea in law, alleging that the defendant infringed the duty to give reasons, Article 296 TFEU and Articles 6(7), 11(3), 14(2) and 18(4) of Council Regulation (EC) No 1225/2009 by failing to take into account and state the reasons for rejection of the comments and evidence provided by the applicant and by failing to unequivocally state its reasoning concerning the alleged distortion of the price of the raw material benzene.

4.	Fourth plea in law, alleging that the defendant infringed the second subparagraph of Article 2(7)(c) of Council Regulation (EC) No 1225/2009 by failing to take a decision on market economy treatment within three months from the initiation of the investigation.

5.	Fifth plea in law, alleging that the defendant infringed Article 20(2) of Council Regulation (EC) No 1225/2009 and the rights of the defence by refusing to provide disclosure of the details on the basis of which the normal value was calculated.

24.11.2012

Official Journal of the European Union

C 366/41

Action brought on 25 September 2012 — ZZ v Parliament

(Case F-102/12)

2012/C 366/82

Language of the case: French

Parties

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

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decision to re-grade the applicant in grade AST 5, step 3, with retroactive effect

Form of order sought

—	Annul the contested decision and, if necessary, the decision rejecting the appeal;

—

Indicate to the defendant the effects of that annulment, namely the applicant’s re-grading in grade D 4, step 8, with effect from 1 May 2004, a reconstitution of his career in accordance with the promotions and increases in step which he has had since then and payment of any arrears of remuneration;

—	Order the European Parliament to pay the costs.

24.11.2012

Official Journal of the European Union

C 366/41

Action brought on 28 September 2012 — ZZ v EIB

(Case F-107/12)

2012/C 366/83

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi, lawyer)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the of the EIB’s implied decision not to recalculate the applicant’s years of pensionable service

Form of order sought

The applicant claims that the Court should:

—	annul the implied decision rejecting the applicant’s request of 10 July 2011 for the European Investment Bank to recalculate his years of pensionable service and order the defendant to pay the sum resulting from the recalculation;

—	order the European Investment Bank to allow the applicant to benefit from a recalculation of his years of pensionable service to take account of the additional 6 years and one month of contributions;

—	order the European Investment Bank to pay the sum determined ex aequo et bono and in the provisional amount of EUR 5000 for the non-material harm suffered;

—	order the European Investment Bank to pay the costs.

		ISSN 1977-091X doi:10.3000/1977091X.C_2012.366.eng
Official Journal of the European Union		C 366

English edition	Information and Notices	Volume 55 24 November 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 366/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 355, 17.11.2012	1

	Court of Justice
2012/C 366/02	Taking of the oath by the new Members of the Court of Justice	2

2012/C 366/03	Election of the President of the Court	2

2012/C 366/04	Election of the Vice-President of the Court	2

2012/C 366/05	Election of the Presidents of the Chambers of five Judges	3

2012/C 366/06	Election of the Presidents of the Chambers of three Judges	3

2012/C 366/07	Assignment of Judges to the Chambers of five Judges	3

2012/C 366/08	Assignment of Judges to the Chambers of three Judges	4

2012/C 366/09	Lists for the purposes of determining the composition of the formations of the Court	4

2012/C 366/10	Appointment of the First Advocate General	6

2012/C 366/11	Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court	6

	General Court
2012/C 366/12	Taking of the oath by new Members of the General Court	7