23.2.2013

Official Journal of the European Union

C 55/1

2013/C 55/01

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

Past publications

These texts are available on:

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

23.2.2013

Official Journal of the European Union

C 55/2

Order of the Court (Fourth Chamber) of 13 December 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy)) — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma

(Case C-560/11) (1)

(Articles 53(2) and 94 of the Rules of Procedure of the Court - Manifest inadmissibility - Article 99 of the Rules of Procedure - Reply leaving room for no reasonable doubt - Taxation - VAT - Article 17(2)(a) of the Sixth VAT Directive - Deduction of input tax paid - Public or private healthcare establishments engaged in an exempt activity - National legislation excluding deduction of the tax on the purchase of goods or services used in exempt activities - Deductible proportion)

2013/C 55/02

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma (Italy)

Parties to the main proceedings

Applicant: Danilo Debiasi

Defendant: Agenzia delle Entrate Ufficio di Parma

Re:

Reference for a preliminary ruling — Commissione tributaria provinciale di Parma — Interpretation of Article 17(2)(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 (OJ 1977 L 145, p. 1) — Deduction of input tax — Public or private healthcare establishments engaged in an exempt activity — National legislation excluding the deduction of tax relating to the purchase of goods or services used in the said exempt activities

Operative part of the order

Articles 17(2) and (5) and 19 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 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which does not permit the deduction of input value added tax paid for the purchase of goods and services used for the requirements of exempt activities and which provides, consequently, that the right of a hybrid taxable person to deduct that tax is calculated on the basis of a proportion corresponding to the ratio of the amount of the transactions in respect of which there is a right to deduct and the total amount of the transactions carried out over the course of the year, including the exempt medical-healthcare services.

(1) OJ C 25, 28.1.2012.

23.2.2013

Official Journal of the European Union

C 55/2

Order of the Court of 13 December 2012 — Transcatab SpA, in liquidation v European Commission

(Case C-654/11 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Italian market for the purchasing and primary processing of raw tobacco - Price fixing and market sharing - Attribution of liability for the unlawful conduct of a subsidiary to its parent company - Presumption of innocence - Rights of the defence - Obligation to state the reasons on which a decision is based - Principle of equal treatment)

2013/C 55/03

Language of the case: Italian

Parties

Appellant: Transcatab SpA, in liquidation (represented by: G. Mastrantonio, avvocato)

Other party to the proceedings: European Commission (represented by: L. Malferrari, Agent)

Re:

Appeal brought against the judgment of the General Court (Third Chamber) of 5 October 2011 in Case T-39/06 Transcatab v Commission, in which the General Court dismissed the application for the partial annulment of Commission Decision C(2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) and for a reduction of the fine imposed on Transcatab by that decision and the counterclaim by the Commission seeking to increase that fine — Italian market for the purchasing and primary processing of raw tobacco — Attribution of liability to a parent company for infringements of competition rules committed by its subsidiaries — Rebuttable presumption in the case of a 100 % shareholding — Fundamental principles governing the taking of evidence — Obligation to state the reasons on which a decision is based — Rights of the defence — Principle of equal treatment

Operative part of the order

1.	The appeal is rejected.

2.	Transcatab SpA is ordered to pay the costs.

(1) OJ C 49, 18.2.2012.

23.2.2013

Official Journal of the European Union

C 55/3

Request for a preliminary ruling from the Raad van State (Nederland) lodged on 19 November 2012 — T.C. Briels and Others v Minister van Infrastructuur en Milieu

(Case C-521/12)

2013/C 55/04

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: T.C. Briels, M. Briels-Loermans, R.L.P. Buchholtz, Stichting A2-Platform Boxtel e.o.and Others, H.W.G. Cox, G.P.A. Damman, P.A.M. Goevaers and Others, J.H. van Haaren en L.S.P. Dijkman, R.A.H.M. Janssen, M.M. van Lanschot, J.E.A.M. Lelijveld and Others, A. Mes and Others, A.J.J. Michels, VOF Isphording and Others, M. Peijnenborg en S. Peijnenborg-van Oers, G. Oude Elferink, W. Punte en P.M. Punte-Cammaert, Stichting Reinier van Arkel, E. de Ridder, W.C.M.A.J.G. van Rijckevorsel en M. van Rijckevorsel-van Asch van Wijck, Vereniging tot Behoud van het Groene Hart van Brabant en Stichting Boom en Bosch, Stichting Overlast A2 Vught e.o., Streekraad Het Groene Woud en De Meijerij, A.C.M.W. Teulings en Stichting Bleijendijk, M. Tilman, Vereniging van Eigenaars Appartementengebouw De Heun I and Others, M.C.T. Veroude, E.J.A.M. Widlak, Van Roosmalen Sales BV and Others, M.A.A. van Kessel, Bricorama BV and Others

Defendant: Minister van Infrastructuur en Milieu

Other parties to the proceedings: Burgemeester en Wethouders van Best, Burgemeester en Wethouders van Boxtel

Questions referred

Is the phrase ‘not adversely affect the integrity of the site’ in Article 6(3) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora to be interpreted as meaning that where the project adversely affects the area of a protected natural habitat type within the site, the integrity of the site is not adversely affected if in the framework of the project an area of that natural habitat type of equal or similar size is created within that site?

If the answer to the first question is that the phrase ‘not adversely affect the integrity of the site’ is to be interpreted as meaning that the integrity of the Natura 2000 site is affected, is the creation of a new area of a natural habitat type then to be regarded in that case as a compensatory measure within the meaning of Article 6(4) of the directive?

(1) OJ L 206, p. 7.

23.2.2013

Official Journal of the European Union

C 55/3

Appeal brought on 10 December 2012 by Guardian Industries Corp., Guardian Europe Sàrl against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-82/08: Guardian Industries Corp., Guardian Europe Sàrl v European Commission

(Case C-580/12 P)

2013/C 55/05

Language of the case: English

Parties

Appellants: Guardian Industries Corp., Guardian Europe Sàrl (represented by: S. Völcker, Rechtsanwalt, F. Louis, avocat, H.-G. Kamann, Rechtsanwalt, C. O'Daly, Solicitor)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside the Judgment in so far as the General Court upheld the Decision’s exclusion of captive sales in the calculation of the fines imposed on the Decision’s other addressees thereby discriminating against Guardian;

—	accordingly reduce, in the exercise of its unlimited jurisdiction, the amount of the Decision’s fine imposed on the Appellants by an amount corresponding to 37 % of the fine;

—	set aside the Judgment of the General Court of 27 September 2012 in Case T-82/08, Guardian Industries Corp. and Guardian Europe Sàrl v Commission, in so far as the General Court held the Commission’s letter of 10 February 2012 to be admissible;

—	accordingly, declare the Commission’s letter to be inadmissible and strike it from the record;

—

further reduce, in the exercise of its unlimited jurisdiction, the Decision’s fine imposed on the Appellants by an amount not inferior to 25 % of the original fine in order to remedy the General Court’s failure to grant effective judicial review within a reasonable time under Article 47 of the Charter; and

—	order the Commission to pay the Appellants’ costs relating to this Appeal and the procedure before the General Court.

Pleas in law and main arguments

The appellants submit that the contested judgment should be set aside on the following grounds:

First, the Judgment breaches the principle of equal treatment by upholding the Decision’s exclusion of captive sales when calculating the fines imposed on the Decision’s other addressees and failing to rectify the resulting discrimination against Guardian. This ignored a consistent body of case-law requiring that captive sales be treated the same as external sales when calculating fines, lest this result in an unfair advantage to integrated producers. The General Court’s reasoning — that the Decision related only to ‘sales of flat glass to independent customers’ — cannot justify the discrimination against Guardian.

Second, the Judgment breaches the General Court’s rules on time limits and fundamental principles of rights of the defence and equality of arms by declaring admissible the Commission’s letter of 10 February 2012. In that letter, sent one working day before the hearing, the Commission purported to introduce into the record new information that was not already before the Court, even though the Commission had had many earlier opportunities to do so.

Third, more than three years and five months passed between the closure of the written procedure and the General Court’s decision to open the oral procedure. This delay infringed the Appellants’ right under Article 47 of the Charter to an effective remedy and hearing within a reasonable time. It exceeds what this Court has considered unreasonable in the past, and cannot be explained by any factors such as complexity or the volume of evidence before the General Court. On the contrary, this was a straightforward case with Guardian the only company to lodge an application to annul the Decision. The evidentiary record was limited to a handful of short documents and statements, all in the language of the procedure. Guardian did all it could to simplify and speed up the General Court’s handling of its appeal, including by foregoing a second round of written pleadings despite the importance of its appeal and — given the infringement’s extremely short duration — the unprecedented fine imposed by the Commission.

23.2.2013

Official Journal of the European Union

C 55/4

Appeal brought on 11 December 2012 by Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-370/06: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV v European Commission

(Case C-581/12 P)

2013/C 55/06

Language of the case: English

Parties

Appellants: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV (represented by: D.W. Hull, Solicitor, G. Berrisch, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside the Contested Judgment;

—	to either (i) annul Article 2(i) of the Contested Decision (1) insofar as it imposes a fine on the Appellants; (ii) reduce the amount of the fine imposed on the Appellants, or (iii) refer the case back to the General Court; and

—	order the Commission to pay the costs of the appeal and of the proceedings before the General Court.

Pleas in law and main arguments

By a judgment dated 27 September 2012 (the ‘Contested Judgment’), the General Court upheld a Commission decision adopted on 13 September 2006 imposing on Kuwait Petroleum Corporation (‘KPC’), Kuwait Petroleum International Limited (‘KPI’), and Kuwait Petroleum (Nederland) BV (‘KPN’) (KPC, KPI, and KPN will be referred to collectively as the ‘Appellants’), jointly and severally, a fine of EUR 16 632 million for infringing Article 81 EC by fixing prices in the Dutch bitumen market. Each of the Appellants hereby seeks either the annulment of the Contested Judgment insofar as it imposes a fine, reduction of the fine, or referral back to the General Court on the following grounds:

The Contested Judgment should be annulled insofar as it imposes a fine or, in the alternative, referred back to the General Court, because the Contested Judgment is vitiated by an error of law in that the General Court misinterpreted the last paragraph of Point 23(b) of the 2002 Leniency Notice, which provides that, when a leniency applicant ‘provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel,’ the Commission may not take those facts into account when setting the fine on the leniency applicant. The General Court ruled that a fact is ‘unknown’ to the Commission only if the Commission has no knowledge whatsoever of a fact. Thus, even if the Commission only has a very general idea about the existence of a cartel and no direct evidence that will allow it to prove the facts relating to the cartel, a leniency applicant that provides such evidence will not be able to benefit from the immunity provided for in the last paragraph of Point 23(b). The Appellants submit that this interpretation of this paragraph is too narrow and wrong as a matter of law.

The Contested Judgment is vitiated by an error of law in that the General Court failed to properly consider the evidence put forward by the Appellants before concluding that the value of the evidence submitted to the Commission by KPN in the context of its leniency application was diluted by intervening submissions of other parties. The General Court could not have arrived at this conclusion without examining the evidence submitted by KPN and comparing it to the evidence submitted by the other parties, which it did not even attempt to do.

(1) Decision C(2006) 4090 final relationg to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands), OJ (2007) L196/40

23.2.2013

Official Journal of the European Union

C 55/5

Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 12 December 2012 — Sintax Trading OÜ v Maksu- ja Tolliameti Põhja maksu- ja tollikeskus

(Case C-583/12)

2013/C 55/07

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Applicant: Sintax Trading OÜ

Defendant: Maksu- ja Tolliameti Põhja maksu- ja tollikeskus

Third party: OÜ Acerra

Questions referred

May the ‘proceedings … to determine whether an intellectual property right has been infringed’ referred to in Article 13(1) of Regulation No 1383/2003 (1) also be conducted within the customs department or must ‘the authority competent to decide on the case’ dealt with in Chapter III of the regulation be separate from the customs?

Recital 2 in the preamble to Regulation No 1383/2003 mentions as one of the objectives of the regulation the protection of consumers, and according to recital 3 in the preamble a procedure should be set up to enable the customs authorities to enforce as effectively as possible the prohibition of the introduction into the Community customs territory of goods infringing an intellectual property right, without impeding the freedom of legitimate trade in accordance with recital 2 in the preamble to the regulation and recital 1 in the preamble to implementing regulation No 1891/2004. (2) Is it compatible with those objectives if the measures laid down in Article 17 of Regulation No 1383/2003 can be applied only if the right-holder initiates the procedure mentioned in Article 13(1) of the regulation for determination of an infringement of an intellectual property right, or must it also be possible, for the effective pursuit of those objectives, for the customs authorities to initiate the corresponding procedure?

(1) Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2003 L 196, p. 7).

(2) Commission Regulation (EC) No 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2004 L 328, p. 16).

23.2.2013

Official Journal of the European Union

C 55/6

Appeal brought on 12 December 2012 by Shell Petroleum NV, The Shell Transport and Trading Company Ltd, Shell Nederland Verkoopmaatschappij BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-343/06: Shell Petroleum NV, The Shell Transport and Trading Company Ltd, Shell Nederland BV v European Commission

(Case C-585/12 P)

2013/C 55/08

Language of the case: English

Parties

Appellants: Shell Petroleum NV, The Shell Transport and Trading Company Ltd, Shell Nederland BV (represented by: O.W. Brouwer, W. Knibbeler, A.A.J. Pliego Selie, P. D. van den Berg, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside the paragraphs of the judgment as requested in the appeal,

—	give final judgment and annul the contested decision or reduce the fine as requested in the appeal, or, in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice, and

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

Pleas in law and main arguments

The Appellants rely upon two pleas in law. In the judgment under appeal, the General Court partially dismissed the application brought by the Appellants for the partial annulment of the decision of the European Commission of 13 September 2006 (No. C(2006) 4090 final) relating to a proceeding under Article 81 EC (Case COMP/F/38.456 — Bitumen).

By its first plea, the Appellants respectfully submit that the General Court committed errors of law and failed to provide sufficient or adequate reasoning in finding that the contested decision demonstrates to the requisite legal standard that the same undertaking has committed repeated infringements. The General Court also erred in law and failed to provide sufficient or adequate reasoning by concluding that the test set out in the judgment in Case T-203/01, Michelin, is met. Finally, the General Court erred in law by shifting the burden of proof to the Appellants.

By its second plea, the Appellants respectfully submit that the General Court erred in law and failed to provide sufficient or adequate reasoning in concluding that the European Commission was entitled to include the sales of the product Mexphalte C in the calculation of the fine. The General Court furthermore erred in procedure by failing to address certain arguments put forward by the Appellants. Moreover, the General Court failed to provide sufficient or adequate reasoning in failing to address the inconsistency resulting from the fact that industrial bitumen have been excluded from the calculation of the fine. The General Court also distorted the sense of essential evidence by relying on an inaccurate reading of a crucial document to reach a conclusion on Mexphalte C which clearly cannot be deduced from this document. The General Court furthermore erred in law and failed to provide sufficient or adequate reasoning duty when reviewing the amount of the fine under the exercise of its unlimited jurisdiction. Finally, the General Court committed a breach of procedure and infringed the rules governing the burden of proof in not investigating whether the European Commission had infringed the principle of equal treatment by including, in the fine on the Appellants, sales of Mexphalte C.

23.2.2013

Official Journal of the European Union

C 55/6

Appeal brought on 10 December 2012 by Bimbo, SA against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-569/10: Bimbo, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-591/12 P)

2013/C 55/09

Language of the case: English

Parties

Appellant: Bimbo, SA (represented by: C. Prat, abogado, R. Ciullo, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Panrico SA

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court (Seventh Chamber) dated 10 October 2012, in Case T-569/10

—	annul the decision of the Fourth Board of Appeal of OHIM dated 7 October 2010 (Case R 838/2009-4), since it infringes Article 8(1)(b) of Regulation No. 207/2009 (1)

—	order the respondent to pay the costs

Pleas in law and main arguments

In support of the appeal, the appellant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No. 207/2009.

In particular, the appellant submits that the General Court:

(a)

erred in law, in so far as it attributed an independent distinctive role to the element DOUGHNUTS solely based on the finding that it had an alleged average distinctive role and was wholly meaningless to the average Spanish consumer and, as a consequence, did not form a unitary whole or a logical unit with the component BIMBO, without explaining the reasons why the average distinctive character of the component DOGHNUTS or the absence of a meaning for it would automatically confer on that component an independent distinctive character in the perception of the relevant public; and

(b)

erred in law, in so far as it based the finding that there was a likelihood of confusion, in essence, on the assumption that the element DOUGHNUTS has an independent distinctive role, without taking into account all the factors specific to the case, in particular, the fact that the first component of the composite trade mark was a trade mark with a reputation. In other words, the General Court interpreted the Medion doctrine as implying that a finding of an independent distinctive role in one of the components of a composite sign renders it unnecessary, in the overall assessment of the likelihood of confusion, to analyse all or some the other factors specific to the case, contrary to the doctrine of the overall assessment of the likelihood of confusion.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

23.2.2013

Official Journal of the European Union

C 55/7

Appeal brought on 18 December 2012 by Lancôme parfums et beauté & Cie against the judgment of the General Court (Eighth Chamber) delivered on 5 October 2012 in Case T-204/10: Lancôme parfums et beauté & Cie v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-593/12 P)

2013/C 55/10

Language of the case: English

Parties

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

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Focus Magazin Verlag GmbH

Form of order sought

The appellant claims that the Court should:

—	Annul the Judgment of the General Court of 5 October 2012 in Case T-204/10;

—	Order the Office to bear the costs of the proceedings before the Court of Justice and before the General Court, as well as the costs of the proceedings before the Office’s Board of Appeal.

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:

First, the Appellant claims that the General Court violated Article 53(1) CTMR (1) in conjunction with Article 8(1)(b) CTMR in deciding that the Office was justified in finding that COLOR FOCUS must be declared invalid because of likelihood of confusion.

Second, the Appellant claims that the General Court committed reversible legal error in dismissing the Appellant’s claim that the assertion of rights based on the mark FOCUS amounts to an ‘abuse of rights’.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

23.2.2013

Official Journal of the European Union

C 55/7

Appeal brought on 31 December 2012 by Ellinika Nafpigia AE and 2. Hoern Beteiligungs GmbH against the order of the General Court (Seventh Chamber) made on 19 October 2012 in Case T-466/11 Ellinika Nafpigia AE and 2. Hoern Beteiligungs GmbH v European Commission

(Case C-616/12 P)

2013/C 55/11

Language of the case: Greek

Parties

Appellants: Ellinika Nafpigia AE, 2. Hoern Beteiligungs GmbH (represented by: K. Khrisogonos and A. Kaidatzis, dikigori)

Other party to the proceedings: European Commission

Form of order sought

—	set aside the order of the General Court of 19 October 2012;

—	uphold the action brought, in accordance with the stated form of order sought by it;

—	order the Commission to pay the appellants’ costs.

Pleas in law and main arguments

—

The General Court misinterpreted the application initiating proceedings, with the result that it impermissibly changed the subject-matter of the case, in that it found the documents and other matters on the file in respect of the decision of 1 December 2010 — which is in reality the only contested measure — also to be contested measures or part of the contested measure.

—

The General Court misapplied Article 44(1) of the Rules of Procedure, in that it held that the contested measure was not defined in its entirety since the documents and other matters on the file in respect of the decision of 1 December 2010 — which in reality, however, are neither part of the contested measure nor other contested measures — were not specified individually. As a result of that ruling, the appellants’ right to judicial protection was impermissibly restricted and the fundamental principle of procedural equality was infringed.

—

The General Court misapplied the sixth paragraph of Article 263 TFEU in dismissing the action against the decision of 1 December 2010 as out of time although the appellants had not — and continue not to have — acquired full knowledge of that decision and, therefore, when the action was brought the two-month time-limit for initiating proceedings had not even begun. As a result of that ruling, the right to judicial protection and the right of actual access to a court were impermissibly restricted.

—

The General Court misapplied Articles 64 and 65 of the Rules of Procedure in rejecting the application for adoption of measures of organisation of procedure and measures of inquiry, because it held that the documents and matters on the file in respect of the decision of 1 December 2010 — the items whose production was sought — were part of the contested measure, whereas in reality they merely provide reasons for it. As a result of that ruling, the appellants’ right to judicial protection was impermissibly restricted and the fundamental principle of procedural equality was infringed.

23.2.2013

Official Journal of the European Union

C 55/8

Reference for a preliminary ruling from the Förvaltningsrätten i Stockholm (Sweden) lodged on 7 January 2013 — Skandia America Corporation USA, filial Sverige v Skatteverket

(Case C-7/13)

2013/C 55/12

Language of the case: Swedish

Referring court

Förvaltningsrätten i Stockholm

Parties to the main proceedings

Applicant: Skandia America Corporation USA, filial Sverige

Defendant: Skatteverket

Questions referred

1.	Do supplies of externally purchased services from a company’s main establishment in a third country to its branch in a Member State, with an allocation of costs for the purchase to the branch, constitute taxable transactions if the branch belongs to a VAT group in the Member State?

If the answer to the first question is in the affirmative, is the main establishment in the third country to be viewed as a taxable person not established in the Member State within the meaning of Article 196 of the Directive, (1) with the result that the purchaser is to be taxed for the transactions?

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

23.2.2013

Official Journal of the European Union

C 55/9

Judgment of the General Court of 15 January 2013 — Strack v Commission

(Case T-392/07) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to confirmatory applications for access to documents and to a case brought before the General Court - Document register - Action for annulment - Implied refusal of access - Interest in bringing proceedings - Admissibility - Partial refusal of access - Exception relating to the protection of the privacy and the integrity of the individual - Exception relating to the protection of the decision-making process - Duty to state reasons - Non-contractual liability)

2013/C 55/13

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: European Commission (represented initially by: C. Ladenburger and P. Costa de Oliveira, and subsequently by: P. Costa de Oliveira and B. Conte, acting as Agents)

Re:

Firstly, annulment of all implied and express decisions of the Commission adopted following the initial application for access to documents made by Mr Strack on 20 June 2007 and, secondly, an action for damages

Operative part of the judgment

The Court:

1.	Declares that there is no longer any need to adjudicate on the lawfulness of the implied decisions refusing access;

2.	Annuls the decision of the Commission of 25 July 2007 refusing access to an extract from the register;

3.	Annuls the decision of 23 October 2007 concerning the OLAF documents in so far as it relates to data concerning legal persons;

4.	Annuls the decisions of the Commission of 28 November 2007 and 15 February 2008 concerning the Commission documents (not including the OLAF documents);

Annuls the decisions of the Commission of 28 November 2007 and 9 April 2008 concerning the documents connected with Case T-110/04, in so far as they concern, firstly, the removal of data concerning legal persons when the reasons for that removal were not based on Article 4(2) 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, secondly, the removal of documents and data on the basis of Article 4(1)(b) of Regulation No 1049/2001, with the exception of the removal of the names and addresses of the officials of the European Commission Directorate-General ‘Trade’ and the applicant’s accusations made against them in Case T-110/04, and, thirdly, the removal of documents and data on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001;

6.	Dismisses the remainder of the action;

7.	Orders the Commission to bear its own costs and to pay two thirds of the costs of Mr Guido Strack.

(1) OJ C 297, 8.12.2007.

23.2.2013

Official Journal of the European Union

C 55/9

Judgment of the General Court of 15 January 2013 — Aiscat v Commission

(Case T-182/10) (1)

(State aid - Direct concession for the construction and subsequent management of a section of motorway - Decision to take no further action on the complaint - Action for annulment - Actionable measure - Locus standi - Individual concern - Admissibility - Definition of aid - State resources)

2013/C 55/14

Language of the case: Italian

Parties

Applicant: Associazione italiana delle società concessionarie per la costruzione e l’esercizio di autostrade e trafori stradali (Aiscat) (Rome, Italy) (represented by: M. Maresca, lawyer)

Defendant: European Commission (represented by: P. Rossi and D. Grespan, acting as Agents)

Intervener in support of the defendant: Concessioni Autostradali Venete — CAV SpA (represented by: C. Malinconico and P. Clarizia, lawyers)

Re:

Application for the annulment of the Commission’s decision of 10 February 2010 rejecting a complaint lodged by the applicant concerning the alleged unlawful State aid granted by the Italian Republic to CAV.

Operative part of the judgment

The Court:

1.	Dismisses the action.

Orders Associazione italiana delle società concessionarie per la costruzione e l’esercizio di autostrade e trafori stradali (Aiscat) to bear half of its own costs and to pay half of the costs incurred by the European Commission and all of the costs incurred by Concessioni autostradali Venete — CAV SpA.

3.	Orders the Commission to bear half of its own costs and to pay half of the costs incurred by Aiscat.

(1) OJ C 161, 19.6.2010.

23.2.2013

Official Journal of the European Union

C 55/10

Judgment of the General Court of 15 January 2013 — Spain v Commission

(Case T-54/11) (1)

(ERDF - Reduction of financial assistance - Aid for the operational programme falling within Objective 1 (2000-2006) concerning the region of Andalucía (Spain) - Article 39(3)(b) of Regulation (EC) No 1260/1999 - Three-month period - Directive 93/36/EEC - Negotiated procedure without prior publication of a tender notice)

2013/C 55/15

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented initially by: M. Muñoz Pérez, subsequently by S. Martínez-Lage Sobredo, and finally by A. Rubio González and N. Díaz Abad, lawyers)

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

Re:

Application for annulment of Commission Decision C(2010) 7700 final of 16 November 2010 reducing the assistance from the European Regional Development Fund (ERDF) to the Objective 1 integrated operational programme for Andalucía (2000-2006), in so far as it imposes a financial correction of 100 % on the ERDF-financed expenditure for contracts no 2075/2003 and no 2120/2005.

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

(1) OJ C 80, 12.3.2011.

23.2.2013

Official Journal of the European Union

C 55/10

Judgment of the General Court of 15 January 2013 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM)

(Case T-237/11) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark BELLRAM - Earlier national word and figurative marks RAM and Ram - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Right to be heard - Articles 63(2), 75 and 76 of Regulation No 207/2009 - Opposition period)

2013/C 55/16

Language of the case: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: T. Träger, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Lactimilk, SA (Madrid, Spain) (represented by: P. Casamitjana Lleonart, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 March 2011 (Case R 1154/2009-4), concerning opposition proceedings between Lactimilk, SA and Lidl Stiftung & Co. KG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Lidl Stiftung & Co. KG to pay the costs.

(1) OJ C 204, 9.7.2011.

23.2.2013

Official Journal of the European Union

C 55/11

Judgment of the General Court of 15 January 2013 — Welte-Wenu v OHIM — Commission (EUROPEAN DRIVESHAFT SERVICES)

(Case T-413/11) (1)

(Community trade mark - Proceedings for a declaration of invalidity - Community figurative mark EUROPEAN DRIVESHAFT SERVICES - Absolute ground for refusal - Imitation of the emblem of an international inter-governmental organisation - Article 7(1)(h) of Regulation (EC) No 207/2009 - Article 6b of the Paris Convention - Content of the application for a declaration of invalidity - Admissibility of new elements - Article 56(2) and Article 76 of Regulation No 207/2009 - Rule 37(b)(iv) of Regulation (EC) No 2868/95 - Jurisdiction of the Board of Appeal in the case of an action limited to part of the decision of the Cancellation Division)

2013/C 55/17

Language of the case: German

Parties

Applicant: Welte-Wenu GmbH (Neu-Ulm, Germany) (represented by: T. Kahl, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: European Commission (represented by: J. Samnadda and F.W. Bulst, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 May 2011 (Case R 1590/2010-1) concerning proceedings for a declaration of invalidity between the European Commission and Welte-Wenu GmbH.

Operative part of the judgment

The Court:

Annuls paragraph 3 of the operative part of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 May 2011 (Case R 1590/2010-1) concerning proceedings for a declaration of invalidity between the European Commission and Welte-Wenu GmbH, in so far as it states that Welte-Wenu shall pay the costs of the proceedings for a declaration of invalidity and includes them in the global sum of EUR 2 500 which Welte-Wenu must reimburse to the European Commission;

2.	Dismisses the remainder of the action;

3.	Orders Welte-Wenu to bear its own costs and to pay those incurred by OHIM. The Commission shall bear its own costs.

(1) OJ C 298, 8.10.2011.

23.2.2013

Official Journal of the European Union

C 55/11

Judgment of the General Court of 15 January 2013 — Gigabyte Technology v OHIM — Haskins (Gigabyte)

(Case T-451/11) (1)

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

2013/C 55/18

Language of the case: English

Parties

Applicant: Gigabyte Technology Co., Ltd (Taipei, Taiwan) (represented by: F. Schwerbrock, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Robert A. Haskins (Quakertown, Pennsylvania, United States)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 May 2011 (Case R 2047/2010-2), concerning opposition proceedings between Robert A. Haskins and Gigabyte Technology Co., Ltd.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Gigabyte Technology Co., Ltd to pay the costs.

(1) OJ C 298, 8.10.2011.

23.2.2013

Official Journal of the European Union

C 55/11

Judgment of the General Court of 16 January 2013 — Spectrum Brands (UK) v OHIM — Philips (STEAM GLIDE)

(Case T-544/11) (1)

(Community trade mark - Invalidity proceedings - Community word mark STEAM GLIDE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)

2013/C 55/19

Language of the case: English

Parties

Applicant: Spectrum Brands (UK) Ltd (Manchester, United Kingdom) (represented by: S. Malynicz, Barrister)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: D. Botis, subsequently by G. Schneider and, finally, by G. Schneider and A. Folliard-Monguiral, Agents)

Other party to the proceedings intervening before the Board of Appeal of OHIM: Koninklijke Philips Electronics NV (Eindhoven, Netherlands) (represented by: L. Alonso Domingo, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 July 2011 (Case R 1289/2010-1), concerning invalidity proceedings between Koninklijke Philips Electronics NV and Spectrum Brands (UK) Ltd.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Spectrum Brands (UK) Ltd to pay, in addition to its own costs, the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Koninklijke Philips Electronics NV.

(1) OJ C 6, 7.1.2012.

23.2.2013

Official Journal of the European Union

C 55/12

Judgment of the General Court of 15 January 2013 — BSH v OHIM (ecoDoor)

(Case T-625/11) (1)

(Community trade mark - Application for Community word mark ecoDoor - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Council Regulation (EC) No 207/2009)

2013/C 55/20

Language of the case: German

Parties

Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by: S. Biagosch, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 22 September 2011 (Case R 340/2011-1) concerning an application for registration of the word sign ecoDoor as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders BSH Bosch und Siemens Hausgeräte GmbH to pay the costs.

(1) OJ C 32, 4.2.2012.

23.2.2013

Official Journal of the European Union

C 55/12

Order of the General Court of 18 December 2012 — Germany v Commission

(Case T-205/11) (1)

(Action for annulment - State aid - Period allowed for commencing proceedings - Out of time - Inadmissibility)

2013/C 55/21

Language of the case: Germany

Parties

Applicant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

Defendant: European Commission (represented by: R. Lyal, T. Maxian Rusche and M. Adam, acting as Agents)

Re:

Action for annulment of Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (OJ 2011 L 235, p. 26).

Operative part of the order

1.	The action is dismissed.

2.	The Federal Republic of Germany is ordered to pay the costs.

(1) OJ C 186, 25.6.2011.

23.2.2013

Official Journal of the European Union

C 55/12

Order of the General Court of 17 December 2012 — Barbin v Parliament

(Case T-228/11 P) (1)

(Appeal - Civil Service - Officials - Death of the applicant - Non-resumption of proceedings by the successors - No need to adjudicate)

2013/C 55/22

Language of the case: French

Parties

Appellant: Florence Barbin (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

Other party to the proceedings: European Parliament (represented by: S. Seyr and E. Despotopoulou, Agents)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 15 February 2011 in Case F-68/09 Barbin v Parliament ECR I-0000, seeking to have that judgment set aside.

Operative part of the order

1.	There is no longer any need to adjudicate on the present appeal.

2.	Each party is to bear its own costs.

(1) OJ C 211, 16.7.2011.

23.2.2013

Official Journal of the European Union

C 55/13

Order of the General Court of 18 December 2012 — Hungary v Commission

(Case T-320/11) (1)

(Action for annulment - Period allowed for commencing proceedings - Point from which time starts to run - Out of time - Inadmissibility)

2013/C 55/23

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: M. Fehér, K. Szíjjártó and K. Veres, acting as Agents)

Defendant: European Commission (represented by: G. von Rintelen and A. Sipos, acting as Agents)

Re:

Action for annulment of Commission Decision 2011/192/EU of 28 March 2011 excluding from EU financing certain expenditure incurred by Hungary under the programme for the support for pre-accession measures for agriculture and rural development (Sapard) in 2004 (OJ 2011 L 81, p. 14).

Operative part of the order

1.	The action is dismissed.

2.	Hungary is ordered to pay the costs.

(1) OJ C 252, 27.8.2011.

23.2.2013

Official Journal of the European Union

C 55/13

Order of the General Court of 7 January 2013 — Alfastar Benelux v Council

(Case T-274/12) (1)

(Actions for failure to act - Action devoid of purpose - No need to adjudicate - Actions for damages - Action manifestly lacking any foundation in law)

2013/C 55/24

Language of the case: English

Parties

Applicant: Alfastar Benelux SA (Ixelles, Belgium) (represented by: N. Keramidas and N. Korogiannakis, lawyers)

Defendant: Council of the European Union (represented by: M. Vitsentzatos and E. Chatziioakeimidou, acting as Agents)

Re:

Application for a declaration that the Council has failed to fulfil its obligations under Article 266 TFEU in failing to take the measures necessary to comply with the judgment of the General Court of the European Union of 20 October 2011 in Case T-57/09 Alfastar Benelux v Council, not published in the ECR, and, in addition, a claim for damages under Article 340 TFEU

Operative part of the order

1.	There is no longer any need to adjudicate on the application for a declaration of failure to act, brought by Alfastar Benelux SA.

2.	The claim for damages brought by Alfastar Benelux is dismissed as manifestly lacking any foundation in law.

3.	Alfastar Benelux shall bear 50 % of its own costs and pay 50 % of the costs incurred by the Council of the European Union. The Council shall bear 50 % of its own costs and pay 50 % of the costs incurred by Alfastar Benelux.

(1) OJ C 243, 11.8.2012.

23.2.2013

Official Journal of the European Union

C 55/14

Order of the General Court of 14 December 2012 — Al Toun and Al Toun Group v Council

(Case T-326/12) (1)

(Common foreign and security policy - Restrictive measures against Syria - Removal from the list of persons concerned - No need to adjudicate)

2013/C 55/25

Language of the case: Bulgarian

Parties

Applicants: Salim Georges Al Toun (Al Ghassaneya-Lattakia, Syria) and Al Toun Group (Damascus, Syria) (represented by: S. Koev, lawyer)

Defendant: Council of the European Union (represented by: S. Kyriakopoulou and I. Gurov, Agents)

Re:

Action for annulment of Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ 2011 L 319, p. 56), Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782 (OJ 2012 L 126, p. 9), Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), and Council Implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 126, p. 3), in so far as those acts concern the applicants.

Operative part of the order

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

2.	The Council of the European Union is ordered to pay the costs.

(1) OJ C 311, 13.10.2012.

23.2.2013

Official Journal of the European Union

C 55/14

Action brought on 19 November 2012 — Front Polisario v Council

(Case T-512/12)

2013/C 55/26

Language of the case: French

Parties

Applicant: Front populaire pour la liberation de la saguia-el-hamra et du rio de oro (Front Polisario) (Laâyoune) (represented by: C.E. Hafiz, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Annul the contested act and, consequently, all implementing acts.

Pleas in law and main arguments

The applicant raises five pleas in law in support of its action against (i) Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (OJ 2012 L 241, p. 2) and (ii) Commission Implementing Regulation (EU) No 812/2012 of 12 September 2012 amending Council Regulation (EC) No 747/2001 as regards tariff quotas of the Union for certain agricultural and processed agricultural products originating in Morocco (OJ 2012 L 247, p. 7).

The applicant is of the opinion that, as the representative of the Sahrawi people, it is directly and individually affected by those acts.

1.	First plea in law, alleging, first, infringement of the duty to state reasons, when it was particularly necessary to state reasons having regard to the legal environment and, second, infringement of the right to a hearing, since the Front Polisario was not consulted.

Second plea in law, alleging infringement of the fundamental rights protected by Article 67 TFEU, Article 6 TEU and the principles laid down in the case-law by breaching the right to self-determination of the Sahrawi people and by encouraging the policy of annexation followed by the Kingdom of Morocco, an occupying power in the view of the applicant. The applicant also claims infringement of the principle of coherence laid down in Article 7 TFEU by the failure to respect the principle of sovereignty and infringement of the values on which the European Union is based and the principles governing its external action in contravention of Articles 2 TEU, 3(5) TEU, 21 TEU and 205 TFEU.

3.	Third plea in law, alleging infringement of international agreements concluded by the European Union, in particular the Association Agreement concluded between the European Union and the Kingdom of Morocco, and the United Nations Convention on the Law of the Sea.

4.	Fourth plea in law, alleging infringement of a number of norms of international law, including the right to self-determination, the relative effect of the Treaties and the essential provisions of international humanitarian law.

5.	Fifth plea in law, alleging that the contested acts are unlawful, since the illicit nature of the European Union’s conduct under international law makes those acts unlawful.

23.2.2013

Official Journal of the European Union

C 55/15

Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-51/10, Bermejo Garde v EESC

(Case T-529/12 P)

2013/C 55/27

Language of the case: French

Parties

Appellant: Moises Bermejo Garde (Brussels, Belgium) (represented by L. Levi, lawyer)

Other party to the proceedings: European Economic and Social Committee (EESC)

Form of order sought by the appellant

The appellant claims that the General Court should:

—

set aside the judgment of the Civil Service Tribunal of the European Union of 25 September 2012 in Case F-51/10 in so far as (i) it rejects as inadmissible the forms of order seeking the annulment of all of the decisions adopted on the basis of EESC vacancy notice No 43/09, (ii) it does not give judgment on the forms of order seeking that the respondent be ordered to pay EUR 1 000 in damages, and (iii) does not give judgment on the substantive pleas raised in support of his first form of order seeking the annulment of EESC vacancy notice No 43/09;

—

consequently,

—

grant the appellant’s second and third forms of order sought at first instance and thus,

—	annul all of the decisions adopted on the basis of EESC vacancy notice No 43/09;

—	order the respondent to pay EUR 1 000 in damages;

—	grant the appellant’s first form of order sought at first instance also on the basis of the substantive please which he has raised and, accordingly, annul EESC vacancy notice No 43/09 also by virtue of those substantive pleas;

—	order the respondent to pay all of the costs incurred at both instances.

Grounds of appeal and main arguments

The appellant raises three grounds in support of his appeal.

First ground of appeal: infringement of the requirement to comply with the pre-litigation procedure and an infringement of Article 90(2) of the Staff Regulations of Officials of the European Union, in so far as the Civil Service Tribunal rejected as inadmissible the appellant’s head of claim seeking the annulment of all of the decisions adopted on the basis of EESC vacancy notice No 43/09.

2.	Second ground of appeal: a denial of justice, an infringement of the fundamental right of access to justice and an infringement of the duty to state reasons, since the Civil Service Tribunal did not give judgment on the appellant’s head of claim seeking damages.

Third ground of appeal: infringement of the duty to state reasons and of the principle of the proper administration of justice, since the Civil Service Tribunal did not give judgment on the substantive pleas raised at first instance in support of the appellant’s head of claim seeking the annulment of EESC vacancy notice No 43/09.

23.2.2013

Official Journal of the European Union

C 55/15

Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-41/10, Bermejo Garde v EESC

(Case T-530/12 P)

2013/C 55/28

Language of the case: French

Parties

Appellant: Moises Bermejo Garde (Brussels, Belgium) (represented by L. Levi, lawyer)

Other party to the proceedings: European Economic and Social Committee (EESC)

Form of order sought by the appellant

The appellant claims that the General Court should:

—	set aside the judgment of the Civil Service Tribunal of the European Union of 25 September 2012 in Case F-41/10;

—

consequently, uphold the appellant’s form of order sought at first instance and thus

—	annul Decision No 88/10 A of 3 March 2010 of the President of the EESC rejecting the application brought by the appellant on 7 December 2009 and deciding to reassign him;

—	annul the addition to Decision No 88/10 of 25 March 2010;

—	annul Decision No 133/10 A of 24 March 2010 terminating the appellant’s functions as head of unit of the legal service with immediate effect and reassigning him in his capacity as head of unit, together with his post, to another service from 6 April 2010;

—	annul Decision No 184/10 A of 13 April 2010 of the President of the EESC reassigning the applicant to the Directorate for Logistics, which took effect on 6 April 2010;

—	order the respondent to pay EUR 17 500 in damages;

—	order the respondent to pay all the costs;

—	order the respondent to pay all of the costs incurred at both instances.

Grounds of appeal and main arguments

In support of his action, the appellant raises five grounds of appeal. In the appellant’s view, the Civil Service Tribunal considered that he had suffered harm as a result of the communication of information to his hierarchy, in so far as he was deprived of his functions of head of the legal service, but that that harm did result from an infringement of Articles 12A and 22A of the Staff Regulations of Officials of the European Union.

1.	First ground of appeal: infringement of the notion of act adversely affecting an official and distortion of the file (concerning, essentially, paragraphs 44 to 64 of the judgment under appeal).

2.	Second ground of appeal: infringement of the principle of respect of the rights of the defence and an infringement of Article 41 of the Charter of Fundamental Rights of the European Union (concerning paragraphs 114 to 118 of the judgment under appeal).

3.	Third ground of appeal: infringement of Articles 12A, 22A and 86 of the Staff Regulation, and an infringement of the duty to state reasons and distortion of the file (concerning, essentially, paragraphs 133 et seq. of the judgment under appeal).

Fourth ground of appeal: infringement of Article 86 of the Staff Regulations, of Annex IX thereto, of the general implementing provisions of Annex IX to the Staff Regulations and of the duty to respect the rights of the defence, distortion of the file, and an infringement of the duty to state reasons (concerning, essentially, paragraphs 75 to 78 of the judgment under appeal).

5.	Fifth ground of appeal: infringement of the rules relating to the competence of the institution which adopted the act and an infringement of Article 22A of the Staff Regulations and of Article 72 of the Rules of Procedure of the EESC (concerning paragraphs 70 and 71 of the judgment under appeal).

23.2.2013

Official Journal of the European Union

C 55/16

Action brought on 12 December 2012 — Ziegler v Commission

(Case T-539/12)

2013/C 55/29

Language of the case: French

Parties

Applicant: Ziegler SA (Brussels, Belgium) (represented by: J. Bellis, M. Favart and A. Bailleux, lawyers)

Defendant: European Commission

Form of order sought

—	Declare the present action admissible and well-founded;

—	Hold that the European Commission has incurred the non-contractual liability of the European Union as regards the applicant;

—	Order the European Union to pay the applicant the sum of EUR 1 472 000, together with interest from 11 March 2008 until payment in full, and the sum of EUR 112 872,50 per year from 11 March 2008, together with interest until payment in full;

—	Order the European Union to pay the costs.

Pleas in law and main arguments

The damage in respect of which the applicant seeks compensation from the European Union includes two separate heads of claim.

Firstly, the applicant claims that it has suffered a loss by reason of the fine of EUR 9 200 000, together with interest at the rate of 7.60 % per annum, imposed on it by the Commission’s decision of 11 March 2008 in Case COMP/38.543 — International removal services, for an infringement for which the European Union was partly responsible. The damage allegedly caused to the applicant stems from dual unlawful acts by the European Union:

—

On the one hand, by making reimbursement of the removals costs to its officials subject to their obtaining three different quotes for removals and by refraining from exercising any control over the carrying out of that obligation when it was perfectly well aware of the lapses to which that practice gave rise, the European Union created a regulatory context favourable to the commission of the infringement of Article 101 TFEU for which the removal companies were then penalised. In so doing, the European Union failed in its duty of care and infringed the fundamental right of the applicant to sound administration.

—

On the other, by seeking cover quotes from the applicant, the European Union officials have, as agents, directly incited the applicant to commit the infringement for which it has been penalised. Through its officials, the European Union thus contributed to the infringement of Article 101 TFEU which it then penalised and, moreover, disregarded the applicant’s right to a fair hearing.

Secondly, since the adoption of the decision of 11 March 2008, the applicant is suffering a significant loss of earnings because, as the practice of cover quotes has not ceased, its refusal to respond favourably to such requests has the effect of removing it from the markets concerned, to the extent that the applicant no longer supplies removal services to more than a very limited number of officials of the European institutions. It is a failure on the part of the European Union to fulfil its duty of care which is the cause of the loss thus suffered by the applicant.

23.2.2013

Official Journal of the European Union

C 55/17

Action brought on 18 December 2012 — Mikhalchanka v Council

(Case T-542/12)

2013/C 55/30

Language of the case: French

Parties

Applicant: Aliaksei Mikhalchanka (Minsk, Belarus) (represented by: M. Michalauskas, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Annul Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus, insofar as it concerns the applicant;

—	Annul Council Regulation (EU) NO 1041/2012 of 6 November 2012 amending Regulation (EC) No 765/2006 concerning restrictive measures against Belarus, insofar as it concerns the applicant;

—	Annul Council Implementing Regulation No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures against Belarus, insofar as it concerns the applicant;

—	Order the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law which are in essence identical or similar to those raised in Case T-196/11 AX v Council. (1)

(1) OJ 2012 C 165, p. 19.

23.2.2013

Official Journal of the European Union

C 55/18

Action brought on 18 December 2012 — Grau Ferrer v OHIM — Rubio Ferrer (Bugui va)

(Case T-543/12)

2013/C 55/31

Language in which the application was lodged: Spanish

Parties

Applicant: Xavier Grau Ferrer (Caldes de Montbui, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Juan Cándido Rubio Ferrer (Xeraco, Spain), Alberto Rubio Ferrer (Xeraco)

Form of order sought

The applicant claims that the General Court should:

—

annul the decision of the Fourth Board of Appeal of 11 October 2012 in Cases R 274/2011-4 and R 520/2011-4, in accordance with Article 8(1)(a) and (b) and Article 76 of Regulation No 207/2009, and consequently refuse registration of figurative Community trade mark No 7 338 031‘Bugui va’ in full, for all the goods and services applied for (Classes 31, 35 and 39);

—	order OHIM to pay the costs, in accordance with Article 87(2) CTMR.

Pleas in law and main arguments

Applicant for a Community trade mark: Juan Cándido Rubio Ferrer and Alberto Rubio Ferrer

Community trade mark concerned: Figurative mark with the word element ‘Bugui va’ for goods and services in Classes 31, 35 and 39 — application for Community trade mark No 7 338 031

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

Mark or sign cited in opposition: National figurative mark with the word element ‘Bugui’ and figurative Community trade mark with the word element ‘BUGUI De la huerta a casa FRUITS FROM THE SPANISH VEGETABLE GARDEN’, for goods and services in classes 31, 32 and 39

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Decision of the Opposition Division annulled and opposition rejected in full

Pleas in law: Infringement of Article 8(1)(a) and (b) and of Articles 75 and 76 of Regulation No 207/2009, and infringement of Article 48 of Regulation No 2868/95

23.2.2013

Official Journal of the European Union

C 55/18

Action brought on 14 December 2012 — Pensa Pharma v OHIM — Ferring and Farmaceutisk Lab Ferring (PENSA PHARMA)

(Case T-544/12)

2013/C 55/32

Language in which the application was lodged: English

Parties

Applicant: Pensa Pharma, SA (Valencia, Spain) (represented by: M. Esteve Sanz and M. González Gordon, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Ferring BV (Hoofddorp, Netherlands) and Farmaceutisk Lab Ferring A/S (Vanlose, Denmark)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 1883/2011-5; and

—	Order the defendant and if the case might be, the interveners, to pay the costs of the proceedings and the costs of the appeal incurred within the OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘PENSA PHARMA’, for goods and services in classes 3, 5 and 44 — Community trade mark registration No 4954831

Proprietor of the Community trade mark: The applicant

Applicants for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The requests for a declaration of invalidity were based on the grounds laid down in Article 53(1)(a) in conjunction with Article 8(1)(b) and 8(5) and Article 53(2) of Council Regulation No 207/2009, and on the Benelux trade mark registration No 377513 of the word mark ‘PENTASA’, for goods in class 5

Decision of the Cancellation Division: Accepted the request for a declaration of invalidity against the CTM for all the contested goods and services

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

—	Infringement of Article 53(3) of Council Regulation No 207/2009; and

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

23.2.2013

Official Journal of the European Union

C 55/19

Action brought on 17 December 2012 — Pensa Pharma v OHIM — Ferring and Farmaceutisk Lab Ferring (pensa)

(Case T-546/12)

2013/C 55/33

Language in which the application was lodged: English

Parties

Applicant: Pensa Pharma, SA (Valencia, Spain) (represented by: M. Esteve Sanz and M. González Gordon, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Ferring BV (Hoofddorp, Netherlands) and Farmaceutisk Lab Ferring A/S (Vanlose, Denmark)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 1884/2011-5; and

—	Order the defendant and if the case might be, the interveners, to pay the costs of the proceedings and the costs of the appeal incurred within the OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘pensa’, for goods and services in classes 3, 5 and 44 — Community trade mark registration No 4963542

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Accepted the request for a declaration of invalidity against the CTM for all the contested goods and services

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

—	Infringement of Article 53(3) of Council Regulation No 207/2009; and

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

23.2.2013

Official Journal of the European Union

C 55/19

Action brought on 21 December 2012 — bachmeier v OHIM (oto-soft)

(Case T-550/12)

2013/C 55/34

Language of the case: German

Parties

Applicant: bachmeier GmbH & Co. KG (Ramsau b. Berchtesgaden, Germany) (represented by D. Donath, 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 18 October 2012 in Case R 1784/2011-1;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘oto-soft’ for goods and services in Classes 1, 7, 8, 10, 41 and 44 — Community trade mark application No 9 836 081

Decision of the Examiner: rejection of the application for registration

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 7(1)(b) of Regulation No 207/2009

23.2.2013

Official Journal of the European Union

C 55/20

Action brought on 27 December 2012 — Coppenrath-Verlag v OHIM — Sembella (Rebella)

(Case T-551/12)

2013/C 55/35

Language in which the application was lodged: German

Parties

Applicant: Coppenrath-Verlag GmbH & Co. KG (Münster, Germany) (represented by: D. Pohl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sembella GmbH (Timelkam, Austria)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 October 2012 in Case R 1681/2011-2;

—	Order OHIM to pay the costs including those incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Rebella’ for goods in Classes 20 and 24 — Community trade mark application No 8 498 735

Proprietor of the mark or sign cited in the opposition proceedings: Sembella GmbH

Mark or sign cited in opposition: the word mark ‘Sembella’ for goods in Classes 17, 20 and 22

Decision of the Opposition Division: the opposition was upheld in part

Decision of the Board of Appeal: the appeal was dismissed and the application was accordingly rejected

Pleas in law: Infringement of Article 42(2) of Regulation No 207/2009 and infringement of Article 8(1)(b) of Regulation No 207/2009

23.2.2013

Official Journal of the European Union

C 55/20

Action brought on 24 December 2012 — Compagnie des bateaux mouches SA v OHIM

(Case T-553/12)

2013/C 55/36

Language of the case: French

Parties

Applicant: Compagnie des bateaux mouches SA (Paris, France) (represented by G. Barbaut, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—	declare the application admissible;

—	annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 October 2012 in Case R 1709/2011-2;

—	alter that decision;

—	order the General Court of the European Union to pay all the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark containing the word elements ‘BATEAUX-MOUCHES’ in respect of services in Classes 39, 41 and 43 — Application for registration No 5 666 631

Decision of the Examiner: Partial rejection of the trade mark application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009

23.2.2013

Official Journal of the European Union

C 55/21

Action brought on 26 December 2012 — Central Bank of Iran v Council

(Case T-563/12)

2013/C 55/37

Language of the case: English

Parties

Applicant: Central Bank of Iran (Tehran, Iran) (represented by: M. Lester, Barrister)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Council Decision 2012/635/CFSP of 15 October 2012 (1) and Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 (2), in so far as those measure apply to the applicant;

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

Pleas in law and main arguments

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

1.	First plea in law, alleging that none of the legal criteria for listing the applicant is fulfilled, the Council erred manifestly in considering that any of the criteria for listing was fulfilled, and there is no valid legal basis for its designation.

2.	Second plea in law, alleging that the Council has failed to give adequate or sufficient reasons for including the applicant in the contested measures.

3.	Third plea in law, alleging that the Council has failed to safeguard the applicant’s rights of defence and to effective judicial review.

4.	Fourth plea in law, alleging that the Council’s decision to designate the applicant has infringed, without justification or proportion, the applicant’s fundamental rights, including its right to protection of its property, business, and reputation.

(1) Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58)

(2) Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16)

23.2.2013

Official Journal of the European Union

C 55/21

Action brought on 26 December 2012 — Ministry of Energy of Iran v Council

(Case T-564/12)

2013/C 55/38

Language of the case: English

Parties

Applicant: Ministry of Energy of Iran (Tehran, Iran) (represented by: M. Lester, Barrister)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Council Decision 2012/635/CFSP of 15 October 2012 (1) and Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 (2), in so far as those measure apply to the applicant;

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

Pleas in law and main arguments

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

1.	First plea in law, alleging that none of the legal criteria for listing the applicants is fulfilled, the Council erred manifestly in considering that any of the criteria for listing was fulfilled, and its designation is based on a manifest error of fact.

2.	Second plea in law, alleging that the Council has failed to give adequate or sufficient reasons for including the applicant in the contested measures.

3.	Third plea in law, alleging that the Council has failed to safeguard the applicant’s rights of defence and to effective judicial review.

4.	Fourth plea in law, alleging that the Council’s decision to designate the applicant has infringed, without justification or proportion, the applicant’s fundamental rights, including its right to protection of its property, business, and reputation.

(1) Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58)

(2) Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16)

23.2.2013

Official Journal of the European Union

C 55/22

Action brought on 27 December 2012 — National Iranian Tanker Company v Council

(Case T-565/12)

2013/C 55/39

Language of the case: English

Parties

Applicant: National Iranian Tanker Company (Tehran, Iran) (represented by: R. Chandrasekera, S. Ashley, C. Murphy, Solicitors, and M. Lester, Barrister)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Council Decision 2012/635/CFSP of 15 October 2012 (1) and Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 (2), in so far as those measure apply to the applicant;

—	Order the annulment to take effect immediately and not be suspended;

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

Pleas in law and main arguments

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

1.	First plea in law, alleging that none of the legal criteria for listing the applicants is fulfilled, the Council erred manifestly in considering that any of the criteria for listing was fulfilled, and there is no valid legal or factual basis for its designation.

2.	Second plea in law, alleging that the Council has failed to give adequate or sufficient reasons for designating the applicant.

3.	Third plea in law, alleging that the Council has failed to safeguard the applicant’s rights of defence and to effective judicial review.

4.	Fourth plea in law, alleging that the Council’s decision to designate the applicant has infringed, without justification or proportion, the applicant’s fundamental rights, including its right to protection of its property, business, and reputation

(1) Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58)

(2) Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16)

23.2.2013

Official Journal of the European Union

C 55/22

Action brought on 18 December 2012 — PAN Europe en Stichting Natuur en Milieu v Commission

(Case T-574/12)

2013/C 55/40

Language of the case: Dutch

Parties

Applicants: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) and Stichting Natuur en Milieu (Utrecht, Netherlands) (represented by: F. Martens, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

—

annul the defendant’s decision of 16 October 2012 whereby the claims of the applicants for review of Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (OJ 2008 L 58, p. 1) were declared admissible but unfounded;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of their action, the applicants rely on a single plea in law, alleging infringement of Articles 11, 168, 169 and 191 TFEU, Articles 7, 35 and 38 of the Charter of Fundamental Rights of the European Union, Articles 1, 14(2), 22, 23, 24 and 25 of Regulation (EC) No 396/2005, (1) Articles 5 and 7 of Regulation (EC) No 178/2002 (2) and of Articles 4 and 10 of Directive No 91/414/EEC. (3)

—	The applicants dispute that the maximum residue levels (MRLs) were set at the lowest achievable level consistent with good agricultural practice.

—

The applicants claim that the dossiers were not assessed in a thorough manner. The defendant takes the view in particular that Articles 22 to 25 of Regulation (EC) 396/2005 make no provision whatsoever for a procedure for an entire assessment of a complete dossier in the process for the initial setting of temporary MRLs.

—	Furthermore, the cumulative exposure of consumers was not taken into account.

—	Lastly, a large number of temporary MRLs exceeds health limits.

(1) Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005 L 70, p. 1).

(2) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

(3) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

23.2.2013

Official Journal of the European Union

C 55/23

Action brought on 28 December 2012 — Pyrox v OHIM — Köb Holzheizsysteme (PYROX)

(Case T-575/12)

2013/C 55/41

Language in which the application was lodged: German

Parties

Applicant: Pyrox GmbH (Oberhausen, Germany) (represented by: T. Eigen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Köb Holzheizsysteme GmbH (Wolfurt/Vorarlberg, Austria)

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 4 October 2012 in joined Cases R 2187/2011-1 and R 2507/2011-1;

—	Order the defendant to pay the costs including those incurred in the proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark which includes the word element ‘PYROX’, for goods in Classes 4, 7 and 11 — Community trade mark application No 8 612 781

Proprietor of the mark or sign cited in the opposition proceedings: Köb Holzheizsysteme GmbH

Mark or sign cited in opposition: the national word mark ‘PYROT’ for goods in Class 11

Decision of the Opposition Division: the opposition was upheld in part

Decision of the Board of Appeal: the contested decision was annulled in part and the application was rejected in its entirety

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

23.2.2013

Official Journal of the European Union

C 55/24

Action brought on 9 January 2013 — Iran Liquefied Natural Gas v Council

(Case T-5/13)

2013/C 55/42

Language of the case: English

Parties

Applicant: Iran Liquefied Natural Gas Co. (Tehran, Iran) (represented by: J. Grayston, Solicitor, G. Pandey, P. Gjørtler, D. Rovetta, D. Sellers and N. Pilkington, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	Annul Council Decision 2012/635/CFSP of 15 October 2012 (1) and Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 (2), in so far as the contested acts include the applicant in the list of persons and entities made subject to the restrictive measures.;

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

Pleas in law and main arguments

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

1.	First plea in law, alleging violation of the right of hearing, as the Council failed to perform a hearing of the applicant, and that no contrary indications would justify this, especially in relation to the imposition on current contractual engagements.

2.	Second plea in law, alleging violation of the obligation to give notice, as the Council failed to notify the contested measures to the applicant.

3.	Third plea in law, alleging insufficient statement of grounds, as the limited scope of the statement of reasons has been confirmed by the Council to the applicant, while requests for access to documents were not replied to.

4.	Fourth plea in law, alleging violation of the right of defence, as the applicant was denied the possibility of effectively arguing against the findings of the Council, as these findings were withheld from the applicant.

Fifth plea in law, alleging manifest error of assessment, as contrary to the claim of the Council, the applicant is not a subsidiary of the National Iranian Oil Company, and in any case the Council has not substantiated that even if it were a subsidiary of the latter, this would entail an economic benefit for the Iranian State that would be contrary to the aim of the contested measures.

6.	Sixth plea in law, alleging breach of the fundamental right to property, as by imposing on the bank holdings and current contractual engagements of the applicant the Council has violated the basic right of property by taking measures for which the proportionality cannot be ascertained.

(1) Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58)

(2) Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16)

23.2.2013

Official Journal of the European Union

C 55/24

Action brought on 9 January 2013 — Tegometall International v OHIM — Irega (MEGO)

(Case T-11/13)

2013/C 55/43

Language in which the application was lodged: German

Parties

Applicant: Tegometall International AG (Lengwil, Switzerland) (represented by: H. Timmann and E. Schaper, lawyers)

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

Other party to the proceedings before the Board of Appeal: Irega AG (Zuchwil, Switzerland)

Form of order sought

The applicant claims that the Court should:

—

alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 October 2012 in Case R 1522/2011-1 and declare Community trade mark No 3 786 134‘MEGO’ invalid; in the alternative, annul that decision and refer the case back to the Board of Appeal for reassessment;

—	order the intervener and OHIM to pay the costs of the invalidity proceedings, the appeal proceedings and the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘MEGO’ for goods in Classes 6 and 20 — Community trade mark No 3 786 134

Proprietor of the Community trade mark: Irega AG

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

Grounds for the application for a declaration of invalidity: the national, Community and international registrations of the word mark ‘TEGO’, the national and Community trade marks ‘TEGOMETALL’ and the national, Community and international registrations of the figurative mark, which includes the word element ‘Tegometall’, for goods in Classes 6, 20 and 21

Decision of the Cancellation Division: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

—	Incorrect application of the principle of res judicata

—	Infringement of Article 34(2) and Article 8(2) of Regulation No 207/2009

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

23.2.2013

Official Journal of the European Union

C 55/26

Action brought on 3 December 2012 — ZZ v Commission

(Case F-147/12)

2013/C 55/44

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the decision relating to the transfer of the applicant’s pension rights acquired before he entered the service, under the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations of Officials and, so far as necessary, the decision confirming that transfer

Form of order sought

The applicant claims that the Tribunal should:

—	Declare illegal Article 9 of the General Implementing Provisions for Article 11(2) of Annex VIII to the Staff Regulations;

—	Annul the decision of 3 February 2012 to apply the parameters referred to in the General Implementing Provisions for Article 11(2) of Annex VIII to the Staff Regulations of 3 March 2011 in respect of the transfer of the applicant’s pension rights;

—	So far as necessary, annul the decision of 11 October 2012 confirming that transfer;

—	Order the Commission to pay the costs.

23.2.2013

Official Journal of the European Union

C 55/26

Action brought on 13 December 2012 — ZZ v Commission

(Case F-151/12)

2013/C 55/45

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision refusing the applicant the benefit of the expatriation allowance.

Form of order sought

—	Annul the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) refusing the applicant the benefit of the expatriation allowance in accordance with Article 4 of Annex VII of the Staff Regulations;

—	to the extent necessary, annul the decision rejecting his complaint of 31 August 2012;

—	order the Commission to pay the costs.

23.2.2013

Official Journal of the European Union

C 55/26

Action brought on 18 December 2012 — ZZ v Commission

(Case F-153/12)

2013/C 55/46

Language of the case: French

Parties

Applicant: ZZ (represented by: M. Kerger, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the decision refusing entitlement to the household allowance and the survivor’s pension for the applicant’s partner

Form of order sought

The applicant claims that the Tribunal should:

—	Annul the decision of 25 September 2012;

—	Declare illegal and annul Article 1(2)(c)(iv) of Annex VII to the Staff Regulations on the grounds that it is discriminatory;

—	Declare illegal and annul the first paragraph of Article 17 of Annex VIII to the Staff Regulations;

—	Rule that the applicant is entitled to the household allowance with retroactive effect from 13 December 2011 and is entitled to the survivor’s pension for his partner;

—	Make any other appropriate orders;

—	Order the Commission to pay all the costs.

23.2.2013

Official Journal of the European Union

C 55/27

Action brought on 28 December 2012 — ZZ v ECDC

(Case F-161/12)

2013/C 55/47

Language of the case: English

Parties

Applicant: ZZ (represented by: V. Kolias, lawyer)

Defendant: European Center for Disease Prevention and Control (ECDC)

Subject-matter and description of the proceedings

To seek compensation for the non-material damage that the applicant would have suffered due to his dismissal.

Form of order sought

—	Order to pay the sum of at least 118 500 euros in compensation of non-material damage;

—	order ECDC to pay all costs.

		ISSN 1977-091X doi:10.3000/1977091X.C_2013.055.eng
Official Journal of the European Union		C 55

English edition	Information and Notices	Volume 56 23 February 2013

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2013/C 055/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 46, 16.2.2013	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2013/C 055/02	Case C-560/11: Order of the Court (Fourth Chamber) of 13 December 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy)) — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma (Articles 53(2) and 94 of the Rules of Procedure of the Court — Manifest inadmissibility — Article 99 of the Rules of Procedure — Reply leaving room for no reasonable doubt — Taxation — VAT — Article 17(2)(a) of the Sixth VAT Directive — Deduction of input tax paid — Public or private healthcare establishments engaged in an exempt activity — National legislation excluding deduction of the tax on the purchase of goods or services used in exempt activities — Deductible proportion)	2

2013/C 055/03	Case C-654/11 P: Order of the Court of 13 December 2012 — Transcatab SpA, in liquidation v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Italian market for the purchasing and primary processing of raw tobacco — Price fixing and market sharing — Attribution of liability for the unlawful conduct of a subsidiary to its parent company — Presumption of innocence — Rights of the defence — Obligation to state the reasons on which a decision is based — Principle of equal treatment)	2

2013/C 055/04	Case C-521/12: Request for a preliminary ruling from the Raad van State (Nederland) lodged on 19 November 2012 — T.C. Briels and Others v Minister van Infrastructuur en Milieu	3

2013/C 055/05	Case C-580/12 P: Appeal brought on 10 December 2012 by Guardian Industries Corp., Guardian Europe Sàrl against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-82/08: Guardian Industries Corp., Guardian Europe Sàrl v European Commission	3

2013/C 055/06	Case C-581/12 P: Appeal brought on 11 December 2012 by Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-370/06: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV v European Commission	4

2013/C 055/07	Case C-583/12: Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 12 December 2012 — Sintax Trading OÜ v Maksu- ja Tolliameti Põhja maksu- ja tollikeskus	5

2013/C 055/08	Case C-585/12 P: Appeal brought on 12 December 2012 by Shell Petroleum NV, The Shell Transport and Trading Company Ltd, Shell Nederland Verkoopmaatschappij BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-343/06: Shell Petroleum NV, The Shell Transport and Trading Company Ltd, Shell Nederland BV v European Commission	6

2013/C 055/09	Case C-591/12 P: Appeal brought on 10 December 2012 by Bimbo, SA against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-569/10: Bimbo, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	6

2013/C 055/10	Case C-593/12 P: Appeal brought on 18 December 2012 by Lancôme parfums et beauté & Cie against the judgment of the General Court (Eighth Chamber) delivered on 5 October 2012 in Case T-204/10: Lancôme parfums et beauté & Cie v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	7

2013/C 055/11	Case C-616/12 P: Appeal brought on 31 December 2012 by Ellinika Nafpigia AE and 2. Hoern Beteiligungs GmbH against the order of the General Court (Seventh Chamber) made on 19 October 2012 in Case T-466/11 Ellinika Nafpigia AE and 2. Hoern Beteiligungs GmbH v European Commission	7

2013/C 055/12	Case C-7/13: Reference for a preliminary ruling from the Förvaltningsrätten i Stockholm (Sweden) lodged on 7 January 2013 — Skandia America Corporation USA, filial Sverige v Skatteverket	8

	General Court
2013/C 055/13	Case T-392/07: Judgment of the General Court of 15 January 2013 — Strack v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to confirmatory applications for access to documents and to a case brought before the General Court — Document register — Action for annulment — Implied refusal of access — Interest in bringing proceedings — Admissibility — Partial refusal of access — Exception relating to the protection of the privacy and the integrity of the individual — Exception relating to the protection of the decision-making process — Duty to state reasons — Non-contractual liability)	9

2013/C 055/14	Case T-182/10: Judgment of the General Court of 15 January 2013 — Aiscat v Commission (State aid — Direct concession for the construction and subsequent management of a section of motorway — Decision to take no further action on the complaint — Action for annulment — Actionable measure — Locus standi — Individual concern — Admissibility — Definition of aid — State resources)	9

2013/C 055/15	Case T-54/11: Judgment of the General Court of 15 January 2013 — Spain v Commission (ERDF — Reduction of financial assistance — Aid for the operational programme falling within Objective 1 (2000-2006) concerning the region of Andalucía (Spain) — Article 39(3)(b) of Regulation (EC) No 1260/1999 — Three-month period — Directive 93/36/EEC — Negotiated procedure without prior publication of a tender notice)	10

2013/C 055/16	Case T-237/11: Judgment of the General Court of 15 January 2013 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM) (Community trade mark — Opposition proceedings — Application for the Community word mark BELLRAM — Earlier national word and figurative marks RAM and Ram — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Right to be heard — Articles 63(2), 75 and 76 of Regulation No 207/2009 — Opposition period)	10

2013/C 055/17	Case T-413/11: Judgment of the General Court of 15 January 2013 — Welte-Wenu v OHIM — Commission (EUROPEAN DRIVESHAFT SERVICES) (Community trade mark — Proceedings for a declaration of invalidity — Community figurative mark EUROPEAN DRIVESHAFT SERVICES — Absolute ground for refusal — Imitation of the emblem of an international inter-governmental organisation — Article 7(1)(h) of Regulation (EC) No 207/2009 — Article 6b of the Paris Convention — Content of the application for a declaration of invalidity — Admissibility of new elements — Article 56(2) and Article 76 of Regulation No 207/2009 — Rule 37(b)(iv) of Regulation (EC) No 2868/95 — Jurisdiction of the Board of Appeal in the case of an action limited to part of the decision of the Cancellation Division)	11

2013/C 055/18	Case T-451/11: Judgment of the General Court of 15 January 2013 — Gigabyte Technology v OHIM — Haskins (Gigabyte) (Community trade mark — Opposition proceedings — Application for Community word mark Gigabyte — Earlier Community word mark GIGABITER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)	11

2013/C 055/19	Case T-544/11: Judgment of the General Court of 16 January 2013 — Spectrum Brands (UK) v OHIM — Philips (STEAM GLIDE) (Community trade mark — Invalidity proceedings — Community word mark STEAM GLIDE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)	11

2013/C 055/20	Case T-625/11: Judgment of the General Court of 15 January 2013 — BSH v OHIM (ecoDoor) (Community trade mark — Application for Community word mark ecoDoor — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Council Regulation (EC) No 207/2009)	12

2013/C 055/21	Case T-205/11: Order of the General Court of 18 December 2012 — Germany v Commission (Action for annulment — State aid — Period allowed for commencing proceedings — Out of time — Inadmissibility)	12

2013/C 055/22	Case T-228/11 P: Order of the General Court of 17 December 2012 — Barbin v Parliament (Appeal — Civil Service — Officials — Death of the applicant — Non-resumption of proceedings by the successors — No need to adjudicate)	12

2013/C 055/23	Case T-320/11: Order of the General Court of 18 December 2012 — Hungary v Commission (Action for annulment — Period allowed for commencing proceedings — Point from which time starts to run — Out of time — Inadmissibility)	13

2013/C 055/24	Case T-274/12: Order of the General Court of 7 January 2013 — Alfastar Benelux v Council (Actions for failure to act — Action devoid of purpose — No need to adjudicate — Actions for damages — Action manifestly lacking any foundation in law)	13

2013/C 055/25	Case T-326/12: Order of the General Court of 14 December 2012 — Al Toun and Al Toun Group v Council (Common foreign and security policy — Restrictive measures against Syria — Removal from the list of persons concerned — No need to adjudicate)	14

2013/C 055/26	Case T-512/12: Action brought on 19 November 2012 — Front Polisario v Council	14

2013/C 055/27	Case T-529/12 P: Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-51/10, Bermejo Garde v EESC	15

2013/C 055/28	Case T-530/12 P: Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-41/10, Bermejo Garde v EESC	15

2013/C 055/29	Case T-539/12: Action brought on 12 December 2012 — Ziegler v Commission	16

2013/C 055/30	Case T-542/12: Action brought on 18 December 2012 — Mikhalchanka v Council	17

2013/C 055/31	Case T-543/12: Action brought on 18 December 2012 — Grau Ferrer v OHIM — Rubio Ferrer (Bugui va)	18

2013/C 055/32	Case T-544/12: Action brought on 14 December 2012 — Pensa Pharma v OHIM — Ferring and Farmaceutisk Lab Ferring (PENSA PHARMA)	18

2013/C 055/33	Case T-546/12: Action brought on 17 December 2012 — Pensa Pharma v OHIM — Ferring and Farmaceutisk Lab Ferring (pensa)	19

2013/C 055/34	Case T-550/12: Action brought on 21 December 2012 — bachmeier v OHIM (oto-soft)	19

2013/C 055/35	Case T-551/12: Action brought on 27 December 2012 — Coppenrath-Verlag v OHIM — Sembella (Rebella)	20

2013/C 055/36	Case T-553/12: Action brought on 24 December 2012 — Compagnie des bateaux mouches SA v OHIM	20

2013/C 055/37	Case T-563/12: Action brought on 26 December 2012 — Central Bank of Iran v Council	21

2013/C 055/38	Case T-564/12: Action brought on 26 December 2012 — Ministry of Energy of Iran v Council	21

2013/C 055/39	Case T-565/12: Action brought on 27 December 2012 — National Iranian Tanker Company v Council	22

2013/C 055/40	Case T-574/12: Action brought on 18 December 2012 — PAN Europe en Stichting Natuur en Milieu v Commission	22

2013/C 055/41	Case T-575/12: Action brought on 28 December 2012 — Pyrox v OHIM — Köb Holzheizsysteme (PYROX)	23

2013/C 055/42	Case T-5/13: Action brought on 9 January 2013 — Iran Liquefied Natural Gas v Council	24

2013/C 055/43	Case T-11/13: Action brought on 9 January 2013 — Tegometall International v OHIM — Irega (MEGO)	24

	European Union Civil Service Tribunal
2013/C 055/44	Case F-147/12: Action brought on 3 December 2012 — ZZ v Commission	26

2013/C 055/45	Case F-151/12: Action brought on 13 December 2012 — ZZ v Commission	26

2013/C 055/46	Case F-153/12: Action brought on 18 December 2012 — ZZ v Commission	26

2013/C 055/47	Case F-161/12: Action brought on 28 December 2012 — ZZ v ECDC	27