31.8.2013

Official Journal of the European Union

C 252/2

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

(2013/C 252/04)

At its meeting on 9 July 2013, the Court drew up the list for determining the composition of the Grand Chamber as follows:

Mr Rosas

Mr Rodin

Mr Juhász

Mr Vajda

Mr Arestis

Mr da Cruz Vilaça

Mr Borg Barthet

Mr Fernlund

Mr Malenovský

Mr Jarašiūnas

Mr Lõhmus

Ms Prechal

Mr Levits

Ms Berger

Mr Ó Caoimh

Mr Šváby

Mr Bonichot

Mr Safjan

Mr Arabadjiev

Mr Kasel

Ms Toader

At its meeting on 9 July 2013, the Court drew up the list for determining the composition of the First Chamber of five Judges as follows:

Mr Borg Barthet

Mr Rodin

Mr Levits

Ms Berger

Mr Kasel

At its meeting on 9 July 2013, the Court drew up the list for determining the composition of the Sixth Chamber of three Judges as follows:

Mr Borg Barthet

Mr Levits

Mr Kasel

Mr Rodin

31.8.2013

Official Journal of the European Union

C 252/5

Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Czech Republic

(Case C-545/10) (1)

(Failure of a Member State to fulfil obligations - Transport - Directive 91/440/EEC - Development of the Community’s railways - Article 10(7) - Regulatory body - Competences - Directive 2001/14/EC - Allocation of railway infrastructure capacity - Article 4(1) - Charging framework - Article 6(2) - Measures intended to provide the infrastructure manager with incentives to reduce the costs of provision of infrastructure and the level of access charges - Article 7(3) - Setting charges for the minimum access package and track access to service facilities - Cost directly incurred as a result of operating the railway service - Article 11 - Performance scheme - Article 30(5) - Regulatory body - Competence - Administrative appeal against the decisions of the regulatory body)

(2013/C 252/06)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: M. Šimerdová and H. Støvlbæk, Agents)

Defendant: Czech Republic (represented by: M. Smolek, T. Müller and J. Očková, Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by: S. Centeno Huerta, Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, all provisions necessary to comply with Article 10(7) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25), and with Articles 4(1), 6(2), 7(3), 11 and 30(5) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (OJ 2001 L 75, p. 29).

Operative part of the judgment

The Court:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 4(1), 6(2), 11 and 30(5) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, the Czech Republic has failed to fulfil its obligations under those provisions;

2.	Dismisses the remainder of the action;

3.	Orders the Commission, the Czech Republic and the Kingdom of Spain to bear their own costs.

(1) OJ C 38, 5.2.2011.

31.8.2013

Official Journal of the European Union

C 252/5

Judgment of the Court (Second Chamber) of 11 July 2013 — European Commission v Kingdom of the Netherlands

(Case C-576/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/18/EC - Scope ratione temporis - Public works concession - Sale of land by a public body - Construction project established by that body for the redevelopment of public spaces)

(2013/C 252/07)

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: M. van Beek, A. Tokár and C. Zadra, Agents)

Defendant: Kingdom of the Netherlands (represented by: C. Wissels and J. Langer, Agents)

Intervener in support of the defendant: Federal Republic of Germany (represented by: T. Henze, J. Möller, and A. Wiedmann, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 2 and Title III of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Public works concession — Rules — Municipality of Eindhoven

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs;

3.	Orders the Federal Republic of Germany to bear its own costs.

(1) OJ C 55, 19.2.2011.

31.8.2013

Official Journal of the European Union

C 252/6

Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Republic of Slovenia

(Case C-627/10) (1)

(Failure of a Member State to fulfil obligations - Transport - Directive 91/440/EEC - Development of the Community’s railways - Directive 2001/14/EC - Allocation of railway infrastructure capacity - Article 6(3) and Annex II to Directive 91/440 - Article 14(2) of Directive 2001/14 - Infrastructure manager - Participation in the preparation of the service timetable - Traffic management - Article 6(2) to (5) of Directive 2001/14 - Failure to provide incentives for infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges - Articles 7(3) and 8(1) of Directive 2001/14 - Cost that is directly incurred as a result of operating the train service - Article 11 of Directive 2001/14 - Performance scheme)

(2013/C 252/08)

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by: H. Støvlbæk, D. Kukovec and M. Žebre, acting as Agents)

Defendant: Republic of Slovenia (represented by: N. Pintar Gosenca, A. Vran and J. Kampoš, acting as Agents)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek and T. Müller, acting as Agents), Kingdom of Spain (represented by: S. Centeno Huerta, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, all the measures necessary to comply with Article 6(3) of and Annex II of Council Directive 91/440/EEC of 29 July 1991, on the development of the community railways (OJ 1991 L 237, p. 25), as amended, and Article 6(2) to (5), (7)93), 8(1), 11, 14(2) and 30(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (OJ 2001 L 75, p. 29)

Operative part of the judgment

The Court:

Declares that, by failing to take the measures necessary to comply with:

—

Article 6(3) of and Annex II to Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004, and Article 14(2) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, and

—	Articles 6(2) to (5), 7(3), 8(1) and 11 of Directive 2001/14, as amended by Directive 2004/49

the Republic of Slovenia has failed to fulfil its obligations under those provisions;

2.	Dismisses the remainder of the action;

3.	Orders the European Commission, the Republic of Slovenia, the Czech Republic and the Kingdom of Spain to bear their own costs.

(1) OJ C 103, 2.4.2011.

31.8.2013

Official Journal of the European Union

C 252/7

Judgment of the Court (First Chamber) of 11 July 2013 (request for a preliminary ruling from the Fővárosi Bíróság — Hungary) — Gábor Csonka, Tibor Isztli, Dávid Juhász, János Kiss, Csaba Szontágh v Magyar Állam

(Case C-409/11) (1)

(Use of motor vehicles - Insurance against civil liability - Directive 72/166/EEC - Article 3(1) - Directive 84/5/EEC - Article 1(4), first subparagraph - Insolvency of the insurer - No payment of compensation by the body providing compensation)

(2013/C 252/09)

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Applicants: Gábor Csonka, Tibor Isztli, Dávid Juhász, János Kiss, Csaba Szontágh

Defendant: Magyar Állam

Re:

Request for a preliminary ruling — Fővárosi Bíróság — Interpretation of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360) — Obligation for the Member States to take the measures necessary to ensure that all compulsory insurance policies against civil liability cover the whole of the territory of the Community — Withdrawal of a motor vehicle insurance company’s operating licence, giving rise to an obligation on the part of individuals who had concluded contracts with that insurance company to answer personally, using their own assets, for the damage they caused to others — State liability in cases of incorrect transposition of a directive

Operative part of the judgment

Article 3(1) of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, read in the light of Article 1(4) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended by Directive 2005/14, must be interpreted as not including, among the obligations which that provision imposes on Member States, that of establishing a body to ensure that compensation is provided to victims of road accidents in situations where, although the persons responsible for the damage had taken out insurance covering their civil liability in respect of the use of motor vehicles, the insurer has become insolvent.

(1) OJ C 347, 26.11.2011.

31.8.2013

Official Journal of the European Union

C 252/7

Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Grand Duchy of Luxembourg

(Case C-412/11) (1)

(Failure of a Member State to fulfil obligations - Transport - Development of the Community’s railways - Directive 91/440/EEC - Article 6(3) and Annex II - Directive 2001/14/EC - Article 14(2) - Independence of the body to which the exercise of essential functions is entrusted)

(2013/C 252/10)

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Article 6(3) of and Annex II to Council Directive 91/440/EEC on the development of the Community’s railways (OJ 1991 L 237, p. 25), as amended by Directive 2001/12/EC (OJ 2001 L 75, p. 1), and Article 14(2) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) — Failure to ensure the independence of essential functions

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs

(1) OJ C 298, 8.10.2011.

31.8.2013

Official Journal of the European Union

C 252/8

Judgment of the Court (Third Chamber) of 11 July 2013 — Gosselin Group NV v European Commission, Stichting Administratiekantoor Portielje

(Case C-429/11 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Direct or indirect fixing of prices, market-sharing and the manipulation of the procedure for the submission of tenders - Classification - Infringement of competition by object - Obligation to state reasons - Guidelines on the effect on trade between Member States - Legal force - Obligation to define the relevant market - Scope - Guidelines on the method of setting fines (2006) - Proportion of the value of sales - Gravity of the infringement - Mitigating circumstances - Obligation to state reasons - Regulation (EC) No 1/2003 - Article 25 - Limitation period - Repeated infringment)

(2013/C 252/11)

Language of the case: Dutch

Parties

Appellant: Gosselin Group NV (represented by: F. Wijckmans, H. Burez and S. De Keer, avocaten)

Other party to the proceedings: European Commission (represented by: A. Bouquet, F. Ronkes Agerbeek, Agents), Stichting Administratiekantoor Portielje

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 16 June 2011 in Case T-208/08 Gosselin Group v Commission and Case T-209/08 Stichting Administratiekantoor Portielje, by which the General Court, in Case T-208/08, annulled Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), in so far as that decision finds that Gosselin Group NV participated in an infringement of Article 81(1) EC from 30 October 1993 to 14 November 1996 and, in Case T-209/08, annulled Decision C(2008) 926, as amended by Decision C(2009) 5810, in so far as it relates to Stichting Administratiekantoor Portielje

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Gosselin Group NV to pay the costs.

(1) OJ C 331, 12.11.2011.

31.8.2013

Official Journal of the European Union

C 252/8

Judgment of the Court (Third Chamber) of 11 July 2013 — Ziegler SA v European Commission

(Case C-439/11 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Guidelines on the effect on trade between Member States - Legal status - Requirement to define the relevant market - Scope - Right to fair legal process - Principle of good administration - Objective impartiality on the part of the Commission - Guidelines on the method of setting fines (2006) - Proportion of the value of sales - Obligation to state reasons - Fine reduced on grounds of inability to pay or the special circumstances of the case - Equal treatment)

(2013/C 252/12)

Language of the case: French

Parties

Appellant: Ziegler SA (represented by: J.-F. Bellis, M. Favart and A. Bailleux, avocats)

Other parties to the proceedings: European Commission (represented by: A. Bouquet and N. von Lingen, Agents)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 16 June 2011 in Case T-199/08 Ziegler v Commission, by which that court dismissed the action for annulment of Commission Decision C(2008) 926 final of 11 March 2008, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International removal services) — Competition — Agreements, decisions and concerted practices — Errors in law — Appreciable effect on trade between Member States — Fine — Infringement of the right to fair legal process and the principle of equality and non-discrimination

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Ziegler SA to pay the costs.

(1) OJ C 347, 26.11.2011.

31.8.2013

Official Journal of the European Union

C 252/9

Judgment of the Court (Third Chamber) of 11 July 2013 — European Commission v Stichting Administratiekantoor Portielje, Gosselin Group NV

(Case C-440/11 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Direct or indirect fixing of prices, market sharing and the manipulation of the procedure for the submission of tenders - Unlawful conduct imputable to the entity controlling the shareholdings - Definition of ‘undertaking’ - Presumption of actual exercise of decisive influence - Restriction of competition by object - Guidelines on the effect on trade between Member States - Guidelines on the method of setting fines (2006) - Mitigating circumstances)

(2013/C 252/13)

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

Other parties to the proceedings: Stichting Administratiekantoor Portielje (represented by: D. Van hove, F. Wijckmans, S. De Keer and H. Burez, advocaten), Gosselin Group NV

Re:

Appeal brought against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Joined Cases T-208/08 and T-209/08 Gosselin Group and Stichting Administratiekantoor Portielje v Commission, by which that court, in Case T-208/08, annulled Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) in so far as that decision finds that Gosselin Group NV participated in an infringement of Article 81(1) EC from 30 October 1993 to 14 November 1996, and, in Case T-209/08, annulled Decision C(2008) 926, as amended by Decision C(2009) 5810, in so far as it relates to Stichting Administratiekantoor Portielje

Operative part of the judgment

The Court:

1.	Annuls paragraphs 4 and 6 of the operative part of the judgment of the General Court of the European Union of 16 June 2011 in Joined Cases T-208/08 and T-209/08 Gosselin Group and Stichting Administratiekantoor Portielje v Commission.

2.	Dismisses the action brought by Stichting Administratiekantoor Portielje in Case T-209/08.

3.	Orders Stichting Administratiekantoor Portielje to pay the costs of both the proceedings at first instance in Case T-209/08 and the appeal proceedings.

(1) OJ C 331, 12.11.2011.

31.8.2013

Official Journal of the European Union

C 252/9

Judgment of the Court (Third Chamber) of 11 July 2013 — Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd, Team Relocations Ltd v European Commission

(Case C-444/11 P) (1)

(Appeals - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Direct and indirect price-fixing, market-sharing and manipulation of the procedures for the submission of tenders - Single and continuous infringement - Imputability - Guidelines on the method of setting fines (2006) - Value of sales - Concept - Proportion - Additional amount - Mitigating circumstances - Obligation to state reasons - Imputability to the parent company of the infringement - Regulation (EC) No 1/2003 - Article 23(2) - Ceiling of 10 % of turnover - Proportionality)

(2013/C 252/14)

Language of the case: English

Parties

Appellants: Team Relocations NV (represented by: H. Gilliams, J. Bocken and L. Gyselen, avocaten), Amertranseuro International Holdings Ltd, Trans Euro Ltd, Team Relocations Ltd

Other party to the proceedings: European Commission (represented by: A. Bouquet and N. von Lingen and by A. Antoniadis, acting as Agents)

Re:

APPEAL against the judgment of the General Court (Eighth Chamber) of 16 June 2011 in Joined Cases T-204/08 and T-212/08 Team Relocations NV and Others v Commission, by which the General Court dismissed an action seeking the partial annulment of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), concerning a cartel on the Belgium international removal services market involving direct and indirect price-fixing, market-sharing and manipulation of the procedures for the submission of tenders, and the annulment of the fine imposed on the applicant or, in the alternative, reduction of that fine.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd and Team Relocations Ltd jointly and severally to bear the costs.

(1) OJ C 347, 26.11.2011.

31.8.2013

Official Journal of the European Union

C 252/10

Judgment of the Court (Second Chamber) of 11 July 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH

(Case C-521/11) (1)

(Approximation of laws - Intellectual property - Copyright and related rights - Exclusive right of reproduction - Directive 2001/29/EC - Article 5(2)(b) - Fair compensation - Indiscriminate application with a possible right to recovery of the private copying levy intended to finance compensation - Payment of the revenue collected in part to rightholders and in part to social or cultural institutions - Double payment of the private copying levy in the context of a cross-border transaction)

(2013/C 252/15)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicants: Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH

Defendant: Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH

Re:

Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 2 and 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Right of reproduction — Interpretation of the notion of ‘fair compensation’ under Article 5(2)(b) of Directive 2001/29/EC — Legislation of a Member State providing for the indiscriminate application of a private copying levy on all media for reproduction and for the repayment of that levy in the case of the export of the medium before its sale to a final consumer or in the case of reproduction authorised by the rightholder

Operative part of the judgment

Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that it does not preclude legislation of a Member State which indiscriminately applies a private copying levy on the first placing on the market in its territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in that provision, where, having regard to the particular circumstances of each national system and the limits imposed by that directive, which it is for the national court to verify, practical difficulties justify such a system of financing fair compensation and the right to reimbursement is effective and does not make repayment of the levies paid excessively difficult;

Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that, in the context of a system of financing of fair compensation under that provision by means of a private copying levy to be borne by persons who first place recording media suitable for reproduction on the market in the territory of the Member State concerned for commercial purposes and for consideration, that provision does not preclude the establishment by that Member State of a rebuttable presumption of private use of such media where they are marketed to natural persons, where the practical difficulties of determining whether the purpose of the use of the media in question is private justify the establishment of such a presumption and provided that the presumption established does not result in the imposition of the private copying levy in cases where the final use of those media clearly does not fall within the case referred to in that provision;

Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the right to fair compensation under that provision or the private copying levy intended to finance that compensation cannot be excluded by reason of the fact that half of the funds received by way of such compensation or levy is paid, not directly to those entitled to such compensation, but to social and cultural institutions set up for the benefit of those entitled, provided that those social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which it is for the national court to verify;

Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the obligation undertaken by a Member State to pay, on the placing on the market, for commercial purposes and for consideration, of recording media suitable for reproduction, a private copying levy intended to finance the fair compensation under that provision may not be excluded by reason of the fact that a comparable levy has already been paid in another Member State.

(1) OJ C 25, 28.1.2012.

31.8.2013

Official Journal of the European Union

C 252/11

Judgment of the Court (First Chamber) of 6 June 2013 (request for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Bundeswettbewerbsbehörde v Donau Chemie AG, Donauchem GmbH, DC Druck-Chemie Süd GmbH & Co KG, Brenntag Austria Holding GmbH, Brenntag CEE GmbH, ASK Chemicals GmbH, formerly Ashland-Südchemie-Kernfest GmbH, ASK Chemicals Austria GmbH, formerly Ashland Südchemie Hantos GmbH

(Case C-536/11) (1)

(Competition - Access to the file - Judicial proceedings relating to fines for infringement of Article 101 TFEU - Third-party undertakings wishing to bring an action for damages - National rules making access to the file subject to the consent of all parties to the proceedings - Principle of effectiveness)

(2013/C 252/16)

Language of the case: German

Referring court

Oberlandesgericht Wien

Parties to the main proceedings

Applicant: Bundeswettbewerbsbehörde

Defendants: Donau Chemie AG, Donauchem GmbH, DC Druck-Chemie Süd GmbH & Co KG, Brenntag Austria Holding GmbH, Brenntag CEE GmbH, ASK Chemicals GmbH, formerly Ashland-Südchemie-Kernfest GmbH, ASK Chemicals Austria GmbH, formerly Ashland Südchemie Hantos GmbH

In the presence of: Bundeskartellamt, Verband Druck und Medientechnik

Re:

Reference for a preliminary ruling — Oberlandesgericht Wien — Interpretation of provisions of European Union law relating to cartels — Access to the file — National legislation whereby, in administrative proceedings relating to competition, access to the file by third parties is subject to the consent of all parties to the proceedings and there is no weighing of all competing interests, whereas such weighing does take place in respect of access to the file in comparable civil and criminal proceedings

Operative part of the judgment

European Union law, in particular the principle of effectiveness, precludes a provision of national law under which access to documents forming part of the file relating to national proceedings concerning the application of Article 101 TFEU, including access to documents made available under a leniency programme, by third parties who are not party to those proceedings with a view to bringing an action for damages against participants in an agreement or concerted practice is made subject solely to the consent of all the parties to those proceedings, without leaving any possibility for the national courts of weighing up the interests involved.

(1) OJ C 13, 14.1.2012.

31.8.2013

Official Journal of the European Union

C 252/11

Judgment of the Court (Fourth Chamber) of 11 July 2013 — French Republic v European Commission, United Kingdom of Great Britain and Northern Ireland

(Case C-601/11 P) (1)

(Appeal - Action for annulment - Protection against transmissible spongiform encephalopathies - Regulation (EC) No 746/2008 - Regulation authorising less restrictive measures of surveillance and eradication than those previously laid down - Precautionary principle - Level of protection of human health - New elements capable of altering the perception of the risk - Failure to state reasons - Distortion of the facts - Error of law)

(2013/C 252/17)

Language of the case: French

Parties

Appellant: French Republic (represented by: E. Belliard, C. Candat, R. Loosli-Surrans, G. de Bergues and S. Menez, acting as Agents)

Other parties to the proceedings: European Commission (represented by: F. Jimeno Fernández and D. Bianchi, acting as Agents), United Kingdom of Great Britain and Northern Ireland

Re:

Appeal brought against the judgment of the General Court (Third Chamber, Extended Composition) of 9 September 2011 in Case T-257/07 France v Commission by which the General Court dismissed the application for annulment of Commission Regulation (EC) No 746/2008 of 17 June 2008 amending Annex VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2008 L 202, p. 11) in so far as it authorises monitoring and eradication measures less restrictive than those previously prescribed for ovine and caprine flocks — Failure to state the reasons for the decision — Distortion of the facts — Incorrect legal classification of the facts — Breach of the precautionary principle

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the French Republic to pay the costs.

(1) OJ C 80, 17.3.2012.

31.8.2013

Official Journal of the European Union

C 252/12

Judgment of the Court (Third Chamber) of 11 July 2013 (request for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Belgian Electronic Sorting Technology NV v Bert Peelaers, Visys NV

(Case C-657/11) (1)

(Directives 84/450/EEC and 2006/114/EC - Misleading and comparative advertising - Definition of ‘advertising’ - Registration and use of a domain name - Use of metatags in a website’s metadata)

(2013/C 252/18)

Language of the case: Dutch

Referring court

Hof van Cassatie

Parties to the main proceedings

Applicant: Belgian Electronic Sorting Technology NV

Defendants: Bert Peelaers, Visys NV

Re:

Request for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 2 of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17), and Article 2 of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21) — Definition of advertising — Registration and use of a domain name — Use of metatags in a website’s metadata

Operative part of the judgment

Article 2(1) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 and Article 2(a) of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, must be interpreted as meaning that the term ‘advertising’, as defined by those provisions, covers, in a situation such as that at issue in the main proceedings, the use of a domain name and that of metatags in a website’s metadata. By contrast, the registration of a domain name, as such, is not encompassed by that term.

(1) OJ C 73, 10.3.2012.

31.8.2013

Official Journal of the European Union

C 252/12

Judgment of the Court (First Chamber) of 11 July 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v Commission communautaire commune de Bruxelles-Capitale

(Case C-57/12) (1)

(Directive 2006/123/EC - Scope ratione materiae - Healthcare services - Social services - Day-care centres and Night-care centres providing assistance and care to elderly persons)

(2013/C 252/19)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicant: Fédération des maisons de repos privées de Belgique (Femarbel) ASBL

Defendant: Commission communautaire commune de Bruxelles-Capitale

Re:

Request for a preliminary ruling — Cour constitutionnelle — Interpretation of Article 2(2)(f) and (j) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) — Scope ratione materiae — Healthcare services — Social services — Inclusion of day-care centres providing assistance and care appropriate to old people’s loss of independence — Inclusion of night-care centres providing health assistance and care that cannot be given to old people by their close relatives on a continuous basis

Operative part of the judgment

Article 2(2)(f) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that the exclusion of healthcare services from the scope of that directive covers any activity intended to assess, maintain or restore the state of health of patients, where that activity is carried out by healthcare professionals recognised as such by the Member State concerned, regardless of the ways in which the facilities in which that care is provided are organised and financed or whether they are public or private. It is for the national court to ascertain whether day-care centres and night-care centres are excluded from the scope of that directive, having regard to the nature of the activities carried out by the healthcare professionals in those centres and whether those activities constitute a principal part of the services offered by those centres.

Article 2(2)(j) of Directive 2006/123 must be interpreted as meaning that the exclusion of social services from the scope of that directive includes any activity relating, inter alia, to the care and assistance of elderly persons, where that activity is carried out by a private service provider which has been mandated by the State by means of an act conferring, in a clear and transparent manner, a genuine obligation to provide such services under specific conditions. It is for the national court to ascertain whether day-care centres and night-care centres are excluded from the scope of Directive 2006/123, on the basis of the nature of the principle activities of care and assistance of elderly persons carried out in those centres, and the status of those centres under the applicable Belgian legislation.

(1) OJ C 118, 21.4.2012.

31.8.2013

Official Journal of the European Union

C 252/13

Judgment of the Court (Second Chamber) of 11 July 2013 (request for a preliminary ruling from the Cour de cassation — France) — Directeur général des douanes et droits indirects, Chef de l’agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières v Harry Winston SARL

(Case C-273/12) (1)

(Community Customs Code - Regulation (EEC) No 2913/92 - Article 206 - Incurrence of a customs debt - Theft of goods placed under customs warehousing arrangements - Notion of ‘irretrievable loss of goods as a result of force majeure’ - Directive 2006/112/EC - Article 71 - Value added tax - Chargeable event - Chargeability of tax)

(2013/C 252/20)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Directeur général des douanes et droits indirects, Chef de l’agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières

Defendant: Harry Winston SARL

Re:

Request for a preliminary ruling — Cour de Cassation (France) — Interpretation of Article 206 of Council Regulation No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Article 71 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Goods held under the customs warehousing procedure — Theft of goods — Concept of irretrievable loss of the goods — Case of force majeure — Incurrence of the customs debt on importation — Event giving rise to the VAT charge

Operative part of the judgment

Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that a theft of goods placed under customs warehousing arrangements constitutes an unlawful removal of those goods within the meaning of that provision, giving rise to a customs debt on importation. Article 206 of that regulation is capable of applying only to situations in which a customs debt is liable to be incurred pursuant to Articles 202 and 204(1)(a) of that regulation;

The second subparagraph of Article 71(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the theft of goods placed under customs warehousing arrangements gives rise to the chargeable event and causes value added tax to become chargeable.

(1) OJ C 235, 4.8.2012.

31.8.2013

Official Journal of the European Union

C 252/13

Appeal brought on 24 May 2013 by Bimbo, SA against the judgment of the General Court (First Chamber) delivered on 20 March 2013 in Case T-277/12: Bimbo, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-285/13 P)

(2013/C 252/21)

Language of the case: English

Parties

Appellant: Bimbo, SA (represented by: N. Fernández Fernández-Pacheco, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Café do Brasil SpA

Form of order sought

The appellant claims that the Court should:

—

As the main plea, annul in part the judgment of 20 March 2013 refusing registration of Community Trademark 3 478 311 ‘Caffé KIMBO & design’ in respect of the following goods in class 30: ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour, confectionery, ices; honey, treacles; yeast, baking-powder; salt, mustard; vinegar sauces (condiments); relish; ice’ and confirm the same judgment in so far as it rejected the community trademark application 3 478 311 ‘Caffé KIMBO & design’ in respect of ‘preparations made from cereals, bread, pastry.’

—

As a subsidiary plea, annul in part the judgment of the General Court, of 20 March 2013, refusing registration of community trade mark application number 3 478 311 ‘Caffé KIMBO & design’ for the following products of class 30 ‘flour, confectionery, ices, yeast and baking-powder’ and confirm the judgment in so far as it rejected the community trademark application 3 478 311 ‘Caffé KIMBO & design’ in respect of ‘preparations made from cereals, bread, pasty.’

—	Order the defendants to bear the costs of the procedure.

Pleas in law and main arguments

The present Appeal is based on the following grounds:

—

Rule 19 IR (CE) 2868/95 (1).

When assessing the likelihood of confusion between Community Trademark application 3.478.311 ‘Caffé KIMBO & Design’ and earlier Spanish registration 291.655 for BIMBO, both registered to cover goods in class 30, the earlier trademark was not taken into account as a registered trademark but as a well-known trademark.

We submit that the Appellant duly proved the existence of the earlier registration which was and still is in force, despite the fact that no document showing renewal of the application was provided.

3.2.

—

Articles 8.1, 8.2, 8.4, 8.5 / CTMR (EC) No 207/2009 (2). Art 6 bis Paris Convention.

When assessing the likelihood of confusion between Community Trademark application 3.478.311 ‘Caffé KIMBO & Design’ and earlier Spanish registration 291.655 for BIMBO, both registered to cover goods in class 30, the earlier trademark was not taken into account as a trademark with reputation but as a well-known trademark.

The Appellant proved that BIMBO is a trademark with reputation, referring t o Judgment of General Court ruling on Case T-357/11, dated 14 December 2012, which declares that BIMBO is a reputed Trademark.

Both as a well-known and as a reputed trademark, the comparison between the goods shows a high likelihood of confusion, which was not taken into account, the General Court considering them different enough to avoid confusion between goods of the same nature, origin, destination and sales channels.

A more accurate comparison should have determined that there exits a high risk of confusion and therefore should have resulted in the refusal of all goods of class 30, including, obviously, refusal of ‘flour, confectionery, ices, yeast and baking-powder’.

Both as a well-known and as a reputed trademark, comparison between the signs shows a high risk of confusion. BIMBO has proved 92% of brand awareness, and a market share of 60%, and deserves special protection. Therefore CTM application 3.478.311 ‘Caffé KIMBO & Design’ should have been refused in its entirety for goods of class 30.

Registration of CTM application 3.478.311 ‘Caffé KIMBO & Design’ will take unfair advantage of the distinctive character or the repute of the mark and is, or will be, detrimental to it.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, p. 1

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

31.8.2013

Official Journal of the European Union

C 252/14

Appeal brought on 24 May 2013 by Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. against the judgment of the General Court (Eighth Chamber) delivered on 14 March 2013 in Case T-588/08: Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. v European Commission

(Case C-286/13 P)

(2013/C 252/22)

Language of the case: English

Parties

Appellants: Dole Food Company, Inc., Dole Fresh Fruit Europe Ltd & Co. (represented by: J.-F. Bellis, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside in whole or in part the judgment under appeal, in so far as the Appellants’ action was dismissed;

—	annul in whole or in part the Decision of the Commission of 15 October 2008 in so far as it is related to the Appellants;

—	cancel or reduce the fine imposed on the Appellants, also on the basis of the unlimited jurisdiction provided for by Article 261 TFEU;

—	in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

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

Pleas in law and main arguments

By the first ground of appeal, which is subdivided into five parts, the Appellants claim that the General Court committed a number of procedural errors in carrying out its review:

The General Court erred by allowing the Commission to address in the judicial proceedings, for the first time, evidence in its file that contradicted the findings made in the Decision;

The General Court wrongly rejected the admissibility of the Appellants' submission of evidence from the Commission's file to rebut a claim newly raised by the Commission in its Rejoinder;

The General Court wrongly rejected the admissibility of an annex introduced by the Appellants to support their argument that the Commission took statements made by the Appellants during the administrative proceedings out of context;

The General Court breached the equality of arms principle by failing to consider evidence submitted by the Appellants during the judicial proceedings; and

The General Court failed to properly establish the facts.

By the second ground of appeal, the Appellants claim that the General Court distorted facts that are crucial to a proper assessment of the impugned conduct in its legal and economic context.

By the third ground of appeal, which is subdivided in five parts, the Appellants claim that the General Court inadequately assessed the evidence:

The General Court failed to provide adequate reasons to uphold the market share calculations relied upon by the Commission for purposes of establishing the relevant market structure;

The General Court erred by concluding that the Commission is not required to specify the content of those discussions the Appellants had with other undertakings which constitute a restriction of competition by object;

The General Court erred by concluding that the Commission clearly described the content of those discussions the Appellants had with other undertakings which constitute a restriction of competition by object;

The General Court failed to address the Appellants' argument that certain employees could not exchange credible information; and

The General Court erred by applying the wrong legal characterization of the facts when concluding that the discussions constitute a restriction of competition by object.

By the fourth ground of appeal, which is subdivided in two parts, the Appellants claim that the General Court committed various errors in calculating the fine imposed:

The General Court erred by calculating the fine based on sales of companies in relation to which no finding of an infringement was made; and

The General Court erred by counting sales of the same products twice for purposes of calculating the fine.

31.8.2013

Official Journal of the European Union

C 252/15

Appeal brought on 27 May 2013 by Bilbaína de Alquitranes, SA, Cindu Chemicals BV, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Rütgers Germany GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o. against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-93/10: Bilbaina de Alquitranes and others v European Chemicals agency (ECHA)

(Case C-287/13 P)

(2013/C 252/23)

Language of the case: English

Parties

Appellants: Bilbaína de Alquitranes, SA, Cindu Chemicals BV, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Rütgers Germany GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o. (represented by: K. Van Maldegem, avocat)

Other party to the proceedings: European Chemicals Agency (ECHA)

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment of the General Court in Case T-93/10; and

—	annul Decision ED/68/2009 of the European Chemicals Agency (the ‘Contested Decision’) identifying pitch, coal, tar, high temp, CAS Number 65996-93-2 (‘CTPHT’) as a substance to be included on the Candidate List in accordance with Article 59 of Regulation (EC) No 1907/2006 (‘REACH’) (1); or

—	alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and

—	order the respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

The appellants submit that, in dismissing their application for partial annulment in respect of the contested decision, the General Court breached Community law. In particular, the appellants contend that the General Court committed a number of errors in its interpretation of the legal framework as applicable to the appellants’ situation. That resulted in the General Court making a number of errors in law; in particular:

—	in finding that the case related to complex scientific and technical facts and that the identification of CTPHT s having PBT and vPvB properties on the basis of its constituents present in a concentration of at least 0.1% was not vitiated by a manifest error;

—	that the constituents of CTPHT do not have to be individually identified as having PBT or vPvB properties in a separate ECHA decision based on a thorough assessment for that purpose; and

—	that there was no breach of the principle of equal treatment

For these reasons the appellants claim that the judgment of the General Court in Case T-93/10 should be set aside and the contested decision should be annulled.

(1) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, OJ L 396, p. 1

31.8.2013

Official Journal of the European Union

C 252/16

Appeal brought on 27 May 2013 by Rütgers Germany GmbH, Rütgers Belgium NV, Deza, a.s., Industrial Química del Nalón, SA, Bilbaína de Alquitranes, SA against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-94/10: Rütgers Germany GmbH and others v European Chemicals Agency (ECHA)

(Case C-288/13 P)

(2013/C 252/24)

Language of the case: English

Parties

Appellants: Rütgers Germany GmbH, Rütgers Belgium NV, Deza, a.s., Industrial Química del Nalón, SA, Bilbaína de Alquitranes, SA (represented by: K. Van Maldegem, avocat)

Other party to the proceedings: European Chemicals Agency (ECHA)

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment of the General Court in Case T-94/10; and

—	annul Decision ED/68/2009 of the European Chemicals Agency (‘ECHA’) (the ‘Contested Decision’) identifying Anthracene oil as a substance to be included on the Candidate List in accordance with Article 59 of Regulation (EC) No 1907/2006 (‘REACH’) (1), or

—	alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and order the respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

—	in finding that the case related to complex scientific and technical facts and that the identification of anthracene oil as having PBT and vPvB properties on the basis of its constituents present in a concentration of at least 0.1% was not vitiated by a manifest error;

—	the constituents do not have to be individually identified as having PBT or vPvB properties in a separate ECHA decision based on a thorough assessment for that purpose;

—	Article 59(3) and Annex XV of REACH were not breached because information on alternative substances was not included in the Annex XV dossier; and

—	that there was no breach of the principle of equal treatment

For these reasons the appellants claim that the judgment of the General Court in Case T-94/10 should be set aside and the contested decision should be annulled.

31.8.2013

Official Journal of the European Union

C 252/17

Appeal brought on 27 May 2013 by Cindu Chemicals BV, Deza, a.s., Koppers Denmark A/S, Koppers UK Ltd against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-95/10: CINDU Chemicals BV and others v European Chemicals Agency (ECHA)

(Case C-289/13 P)

(2013/C 252/25)

Language of the case: English

Parties

Appellants: Cindu Chemicals BV, Deza, a.s., Koppers Denmark A/S, Koppers UK Ltd (represented by: K. Van Maldegem, avocat)

Other parties to the proceedings: European Chemicals Agency (ECHA), European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment of the General Court in Case T-95/10; and

—	annul Decision ED/68/2009 of the European Chemicals Agency (‘ECHA’) (the ‘Contested Decision’) identifying Anthracene Oil (Low) as a substance to be included on the Candidate List in accordance with Article 59 of Regulation (EC) No 1907/2006 (‘REACH’) (1), or

—	alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and order the respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

—	in finding that the case related to complex scientific and technical facts and that the identification of anthracene oil (low) as having PBT and vPvB properties on the basis of its constituents present in a concentration of at least 0.1% was not vitiated by a manifest error;

—	the constituents do not have to be individually identified as having PBT or vPvB properties in a separate ECHA decision based on a thorough assessment for that purpose;

—	Article 59(3) and Annex XV of REACH were not breached because information on alternative substances was not included in the Annex XV dossier; and

—	that there was no breach of the principle of equal treatment

For these reasons the appellants claim that the judgment of the General Court in Case T-95/10 should be set aside and the contested decision should be annulled.

31.8.2013

Official Journal of the European Union

C 252/17

Appeal brought on 27 May 2013 by Rütgers Germany GmbH, Rütgers Belgium NV, Deza, a.s., Koppers Denmark A/S, Koppers UK Ltd against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-96/10: Rütgers Germany GmbH and others v European Chemicals Agency (ECHA)

(Case C-290/13 P)

(2013/C 252/26)

Language of the case: English

Parties

Appellants: Rütgers Germany GmbH, Rütgers Belgium NV, Deza, a.s., Koppers Denmark A/S, Koppers UK Ltd (represented by: K. Van Maldegem, avocat)

Other party: European Chemicals Agency (ECHA)

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment of the General Court in Case T-96/10; and

—	annul Decision ED/68/2009 of the European Chemicals Agency (‘ECHA’) (the ‘Contested Decision’) identifying Anthracene Oil (Paste) as a substance to be included on the Candidate List in accordance with Article 59 of Regulation (EC) No 1907/2006 (‘REACH’) (1), or

—	alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and

—	order the respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

—	in finding that the case related to complex scientific and technical facts and that the identification of anthracene oil (paste) as having PBT and vPvB properties on the basis of its constituents present in a concentration of at least 0.1% was not vitiated by a manifest error;

—	the constituents do not have to be individually identified as having PBT or vPvB properties in a separate ECHA decision based on a thorough assessment for that purpose;

—	Article 59(3) and Annex XV of REACH were not breached because information on alternative substances was not included in the Annex XV dossier; and

—	that there was no breach of the principle of equal treatment

For these reasons the appellants claim that the judgment of the General Court in Case T-96/10 should be set aside and the contested decision should be annulled.

31.8.2013

Official Journal of the European Union

C 252/18

Appeal brought on 27 May 2013 by Fresh Del Monte Produce, Inc. against the judgment of the General Court (Eighth Chamber) delivered on 14 March 2013 in Case T-587/08: Fresh Del Monte Produce, Inc. v European Commission

(Case C-293/13 P)

(2013/C 252/27)

Language of the case: English

Parties

Appellant: Fresh Del Monte Produce, Inc. (represented by: B. Meyring, Rechtsanwalt, L. Suhr, advocate, O. Van Ermengem, avocat)

Other parties to the proceedings: Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG, European Commission

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of 14 March 2013 in Case T-587/08;

—	annul the decision of the Commission of 15 October 2008 (C(2008) 5955 final) in Case COMP/39.188 — Bananas so far as it pertains to the appellant; and

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

Pleas in law and main arguments

First, the appellant submits that the Commission and the General Court misapplied Article 81(1) EC (now Article 101 TFEU) and Article 23(2) of Regulation 1/2003 (1) by holding Del Monte liable for the infringement. The parental liability test requires that the subsidiary is unable to make independent decisions as to its market conduct. This means that parental liability can only be imposed in cases where a subsidiary follows the parent’s instructions in all material aspects, The Commission and the General Court held Del Monte liable for Weichert’s conduct although they acknowledged that ‘Weichert did not always follow Del Montes’s instructions’ and that ‘Weichert’s pricing decisions may not have met Del Monte’s expectations’. In addition, neither the Decision nor the Judgment shows that Weichert actually followed any Del Monte instructions. The applicant adds that the General Court’s assessment is limited to a number of factors that allegedly gave Del Monte some degree of influence, but it does not apply the test set out in the case law to assess what made this influence ‘decisive’.

By way of a subsidiary ground of appeal, the appellant submits that the General Court distorted some of the evidence, in particular with regard to its assessment of the partnership agreement of Weichert and statements from other importers.

The appellant further submits that, by rejecting individual elements merely on the basis that such evidence did not establish the absence of decisive influence, the General Court effectively reversed the burden of proof. This amounted to a violation of Article 48 Charter of the Fundamental Rights of the European Union (presumption of innocence), of Article 6(2) of the European Convention of Human Rights and of the in dubio pro reo principle.

The appellant finally submits that by considering Dole, Chiquita and Weichert as participating in a single and continuous infringement, despite that fact that Weichert was not aware of any communications between Chiquita and Dole, the General Court misapplied Article 81(1) EC.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

OJ L 1, p. 1

31.8.2013

Official Journal of the European Union

C 252/19

Appeal brought on 27 May 2013 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 14 March 2013 in Case T-587/08: Fresh Del Monte Produce, Inc. v European Commission

(Case C-294/13 P)

(2013/C 252/28)

Language of the case: English

Parties

Appellant: European Commission (represented by: A. Biolan, M. Kellerbauer, P.J.O. Van Nuffel, agents)

Other parties to the proceedings: Fresh Del Monte Produce, Inc., Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

—	Set aside point 1 of the operative part judgment of the General Court of 14 March 2013 in Case T-587/08, Fresh Del Monte Produce Inc. v Commission;

—	Give final judgment by setting the amount of the fine for Fresh Del Monte Produce Inc. at EUR 9 800 000;

—	Order Fresh Del Monte Produce Inc. to pay the costs of the appeal and such proportion of the costs of the proceedings before the General Court as the Court of Justice considers appropriate.

Pleas in law and main arguments

The Commission submits that the General Court infringed Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1) read together with the Commission notice on immunity from fines and reduction of fines in cartel cases (2) and the principle of effective enforcement of Articles 101 and 102 TFEU, by considering that information supplied to the Commission in response to a request for information must be taken into account for a reduction of the fine as voluntary cooperation having facilitated the Commission’s investigation.

In the alternative, the Commission submits that the General Court infringed Article 23 of Regulation No 1/2003 and the duty to state reasons by reducing the fine imposed on Del Monte for Weichert’s cooperation during the administrative procedure although Del Monte and Weichert no longer formed part of the same undertaking at the point in time of Weichert’s alleged cooperative conduct.

(1) OJ L 1, p. 1.

(2) OJ C 45, p. 3.

31.8.2013

Official Journal of the European Union

C 252/19

Appeal brought on 3 June 2013 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 20 March 2013 in Case T-92/11: Jørgen Andersen v European Commission

(Case C-303/13 P)

(2013/C 252/29)

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Armati, T. Maxian Rusche, agents)

Other parties to the proceedings: Jørgen Andersen, Kingdom of Denmark, Danske Statsbaner (DSB)

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court (Fifth Chamber) of 20 March 2013, notified to the Commission on 22 March 2013, in Case T-92/11 Jorgen Andersen v European Commission; and

—	reject the application to annul Commission Decision 2011/3/EU (1) of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner (Case C 41/08 (ex NN 35/08)); and

—	order the applicant at first instance to pay the costs;

alternatively,

—	rule that the third plea at first instance is not well founded and refer the case back to the General Court for consideration of the first and second pleas at first instance;

—	and reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The Commission advances a single ground of appeal: violation of Articles 108(2) and (3), 288 and 297(1) TFEU, by finding that the Commission applied Regulation (EC) No 1370/2007 (2) retroactively.

The Commission considers that the assessment of the aid in question on the basis of Regulation (EC) No 1370/2007 did not entail a retroactive application of that Regulation but is consistent with the principle of immediate application under which a provision of Union law applies from the time it enters into force to the future effects of a situation which arose under the old rule.

The case-law of the Court of Justice distinguishes, with regards to retroactivity, between a definitively-established legal situation (to which the new rule does not apply) and temporary situations which arose under the old rule, but are still on-going (to which the new rule applies).

The Commission considers that the General Court has erred in law by considering that State aid granted by a Member State in violation of the notification and standstill obligation constitutes a definitively established legal situation, rather than a temporary situation. It follows from the rules and case law on recovery of unlawful aid that the recipient of such aid cannot be considered to have definitively acquired the aid until such time as the Commission approves it and the approval decision has become final. In view of the mandatory nature of the supervision of State aid by the Commission under Article 108 TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article.

Finally, the Commission also observes that the judgment under appeal is in open and direct conflict with earlier rulings of the Court of Justice on the same question.

(1) OJ L 7, p. 1

(2) Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and No 1107/70

OJ L 315, p. 1.

31.8.2013

Official Journal of the European Union

C 252/20

Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 7 June 2013 — O. Tümer v Raad van Bestuur van het Uitvoeringsinstituut werknemersverzekeringen

(Case C-311/13)

(2013/C 252/31)

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: O. Tümer

Defendant: Raad van Bestuur van het Uitvoeringsinstituut werknemersverzekeringen

Question referred

Should the Insolvency Directive, (1) in particular Articles 2, 3 and 4 of that Directive, given its basis in Article 137(2) of the EC Treaty (now Article 153(2) of the TFEU), be interpreted as meaning that a national rule such as Article 3(3) and Article 61 of the [Werkloosheidswet], under which a foreign national who is a national of a third country and who does not hold a valid residence permit in the Netherlands within the meaning of Article 8(a) to (e) and (l) of the Vreemdelingenwet 2000 is not regarded as an employee, is incompatible with it, even in a case such as that of the appellant, who has applied for an insolvency benefit, who under civil law must be regarded as an employee and who meets the other conditions for it to be granted?

(1) Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (OJ 2008 L 283, p. 36).

31.8.2013

Official Journal of the European Union

C 252/21

Request for a preliminary ruling from the Rechtbank van eerste aanleg te Mechelen (Belgium) lodged on 7 June 2013 — Openbaar Ministerie v Edgard Jan De Clercq and Others

(Case C-315/13)

(2013/C 252/32)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Mechelen

Parties to the main proceedings

Applicant: Openbaar Ministerie

Defendants: Edgard Jan De Clercq, Emiel Amede Rosa De Clercq, Nancy Genevieve Wilhelmina Rottiers, Ermelinda Jozef Martha Tampère, Thermotec NV

Question referred

Must the provisions of Articles 56 and 57 TFEU (previously Articles 49 and 50 EC Treaty) and Article 3(1) and 3(10) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1), whether or not read in conjunction with Article 19 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), be interpreted as precluding Article 141 of the Programmawet (I) (Programme Law (I)) of 27 December 2006 under which a person for whom work is performed, either directly or through subcontracting, by posted employees or posted trainees, is placed under an obligation to make a declaration to the Rijksdienst voor Sociale Zekerheid (National Office for Social Security) by electronic means (or failing that, by fax or by letter), prior to the commencement of the employment of those persons, of the identification data of those persons who do not have the possibility of submitting the acknowledgement of receipt delivered to their employer of his prior declaration, in conjunction with Article 157 of the Programmawet (I) of 27 December 2006 and Article 183(1)(1) of the Sociaal Strafwetboek (Social Criminal Code), which penalises non-compliance with that obligation by criminal sanctions?

31.8.2013

Official Journal of the European Union

C 252/21

Action brought on 13 June 2013 — European Commission v Italian Republic

(Case C-323/13)

(2013/C 252/33)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: L. Pignataro-Nolin and A. Alcover San Pedro, acting as Agents)

Defendant: Italian Republic

Form of order sought

—

Declare that, since part of the municipal waste going to the landfills of the Rome SubATO (sotto ambito territoriale ottimale; the subdivision of the Optimal Territorial Ambit), including the Malagrotta landfill and those of the Latina SubATO, does not undergo treatment including a proper sorting of the various fractions of the waste and the stabilisation of the organic fraction, and since an integrated and adequate network of waste disposal installations, which takes account of the best available technology, has not been created in Lazio, the Italian Republic has failed to fulfil its obligations under Article 6(a) of Directive 1999/31/EC, (1) read in conjunction with Article 1(1) of Directive 1999/31/EC and with Articles 4 and 13 of Directive 2008/98/EC, (2) and under Article 16(1) of Directive 2008/98/EC;

—	Order the Italian Republic to pay the costs of the proceedings.

Pleas in law and main arguments

The period for transposing Directive 1999/31/EC expired on 16 July 2001.

The period for transposing Directive 2008/98/EC expired on 12 December 2010.

(1) Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ L 182, 16.7.1999 p. 1).

(2) Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ L 312, 22.11.2008 p. 3).

31.8.2013

Official Journal of the European Union

C 252/22

Request for a preliminary ruling from the Augstākās tiesas Senāts (Latvia) lodged on 25 June 2013 — Antonio Gramsci Shipping Corp., and Others v Aivars Lembergs

(Case C-350/13)

(2013/C 252/36)

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Appellants: Antonio Gramsci Shipping Corp., Apollo Holdings Corp., Arctic Seal Shipping Co. Ltd, Atlantic Leader Shipping Co. Ltd, Cape Wind Trading Co. Ltd, Clipstone Navigation SA, Dawnlight Shipping Co. Ltd, Dzons Rids Shipping Corp., Faroship Navigation Co. Ltd, Gaida Shipping Corp., Gevostar Shipping Co. Ltd, Hose Marti Shipping Corp., Imanta Shipping Co. Ltd, Kemeri Navigation Corp., Klements Gotvalds Shipping Corp., Latgale Shipping Co. Ltd, Limetree Shipping Co. Ltd, Majori Shipping Co. Ltd, Noella Marītime Co. Ltd, Razna Shipping Corp., Sagewood Trading Inc., Samburga Shipping Co. Ltd, Saturn Trading Corp., Taganroga Shipping Corp., Talava Shipping Co. Ltd, Tangent Shipping Co. Ltd, Viktorio Shipping Corp., Wilcox Holding Ltd, Zemgale Shipping Co. Ltd, Zoja Shipping Co. Ltd

Respondent: Aivars Lembergs

Questions referred

Must Article 34(1) of the Brussels I Regulation (1) be interpreted as meaning that, in the context of proceedings for the recognition of a foreign judgment, infringement of the rights of persons who are not parties to the main proceedings may constitute grounds for applying the public policy clause contained in Article 34(1) of the Brussels I Regulation and for refusing to recognise the foreign judgment in so far as it affects persons who are not parties to the main proceedings?

If the first question is answered in the affirmative, must Article 47 of the Charter be interpreted as meaning that the principle of the right to a fair trial set out therein allows proceedings for the adoption of provisional protective measures to limit the economic rights of a person who has not been a party to the proceedings, if provision is made to the effect that any person who is affected by the decision on the provisional protective measures is to have the right at any time to request the court to vary or discharge the judgment, in a situation in which it is left to the applicants to notify the decision to the persons concerned?

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

31.8.2013

Official Journal of the European Union

C 252/22

Request for a preliminary ruling from the Retten i Kolding (Denmark) lodged on 27 June 2013 — FOA, acting on behalf of Karsten Kaltoft v Billund Kommune

(Case C-354/13)

(2013/C 252/37)

Language of the case: Danish

Referring court

Retten i Kolding

Parties to the main proceedings

Applicant: FOA, acting on behalf of Karsten Kaltoft

Defendant: Billund Kommune

Questions referred

1.	Is it contrary to EU law as expressed, for example, in Article 6 of the EU Charter of Fundamental Rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

2.	If there is an EU prohibition on discrimination on grounds of obesity, is it directly applicable as between a Danish citizen and his employer, a public authority?

Should the Court find that there is a prohibition under EU law on discrimination on grounds of obesity in the labour market generally or in particular for public-sector employers, is the assessment as to whether action has been taken contrary to a potential prohibition on discrimination on grounds of obesity in that case to be conducted with a shared burden of proof, with the result that the actual implementation of the prohibition in cases where proof of such discrimination has been made out requires that the burden of proof be placed on the respondent/defendant employer (see recital 18 in the preamble to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (1))?

Can obesity be deemed to be to be a handicap covered by the protection provided for in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2) and, if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the prohibition on discrimination on grounds of handicap as laid down in that directive?

(1) OJ 1998 L 14, p. 6.

(2) OJ 2000 L 303, p. 16.

31.8.2013

Official Journal of the European Union

C 252/23

Appeal brought on 1 July 2013 by Metropolis Inmobiliarias y Restauraciones, SL against the judgment of the General Court (Eighth Chamber) delivered on 25 April 2013 in Case T-284/11: Metropolis Inmobiliarias y Restauraciones, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-374/13 P)

(2013/C 252/38)

Language of the case: English

Parties

Appellant: Metropolis Inmobiliarias y Restauraciones, SL (represented by: J. Carbonell Callicó, abogado)

Otherparties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), MIP Metro Group Intellectual Property GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

—	Set aside the decision of the General Court of 25 April 2013 in case T-284/11, granting in consequence the registration of the Community Trademark Application no 7 112 113 ‘METROINVEST’ to distinguish services in class 36.

—	Order the other parties to bear the costs of the procedure.

Pleas in law and main arguments

The Appellant raises a single plea alleging the:

—	Infringement of the Art. 8.1 b) of Regulation no 207/2009 (1)

However this plea consists of four parts, which are the following:

—	Error on the part of the General Court and on the part of OHIM in assessing the comparison of the signs.

—	The General Court has not taken into account the applicable case law regarding the global assessment of the likelihood of confusion.

—	Lack of coherence with other Office resolutions in which the same parts, and related trademarks are involved.

—	Pacific coexistence between other trademarks, which include the word METRO in different classes, and also in class 36.

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

OJ L 78, p. 1

31.8.2013

Official Journal of the European Union

C 252/23

Action brought on 2 July 2013 — European Commission v Republic of Bulgaria

(Case C-376/13)

(2013/C 252/39)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: G. Braun, G. Koleva, L. Malferrari)

Defendant: Republic of Bulgaria

Form of order sought

—

Declare that by restricting, under Paragraph 5a(1) and (2) of the transitional and concluding provisions of the ZES (Law on electronic communication) to two in number (whereas potentially up to five undertakings could be considered in that regard) the undertakings to which radio frequencies could be assigned for digital terrestrial broadcasting and which can be authorised to provide the corresponding electronic communication service, the Republic of Bulgaria has failed to comply with its obligations under Article 2(1) of the Competition Directive;

—

Declare that by prohibiting, under Paragraph 47a(1) and (2) and 48(3) of the ZES, undertakings which offer television content and the programmes of which are not broadcast in the Republic of Bulgaria, and persons connected with those undertakings, from taking part in tenders for the assignment of radio frequencies for digital terrestrial broadcasting and the corresponding [services], the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive;

—

Declare that by prohibiting, under Paragraph 48(5) of the ZES, holders of radio frequencies for digital terrestrial broadcasting from establishing electronic communication services for the broadcasting of radio and television programmes, the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive;

—	Order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

The European Commission claims that the Republic of Bulgaria has failed to comply with its obligations under Article 2(1) and (2) and 4(2) of Directive 2002/77/EC (1) of 16 September 2002 on competition in the markets for electronic communications networks and services (‘the Competition Directive’), Article 7(3) of Directive 2002/20/EC (2) of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) and Article 9(1) of Directive 2002/21/EC (3) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘the Framework Directive’).

—

The Republic of Bulgaria has failed to comply with the requirement of Article 2(1) of the Competition Directive, according to which Member States are not to grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services. By legislation the Republic of Bulgaria restricted to two in number the undertakings authorised to use radio frequencies for digital terrestrial broadcasting and which provide services as multiplex providers in its territory (whereas potentially up to five undertakings could be considered in that regard). Disproportionate criteria which lacked objectivity were employed in that regard. By that means Bulgaria established special rights for the provision of those electronic communication services.

—

The Republic of Bulgaria has failed to comply with the requirements of Article 2(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, according to which the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria. The Republic of Bulgaria applied criteria for the participation in tenders for the assignment of radio frequencies for digital terrestrial broadcasting which were not proportionate to the purposes pursued; by establishing criteria for the assignment of radio frequencies for digital terrestrial broadcasting which were disproportionate and thus by precluding a number of undertakings from taking part in those tenders, the Republic of Bulgaria failed to comply with its obligation under Article 2(2) of the Competition Directive to ensure that any undertaking is entitled to provide electronic communications services.

(1) OJ 2002 L 249, p. 21.

(2) OJ 2002 L 108, p. 21.

(3) OJ 2002 L 108, p. 33.

31.8.2013

Official Journal of the European Union

C 252/24

Appeal brought on 4 July 2013 by the Italian Republic against the judgment delivered by the General Court (First Chamber) on 19 April 2013 in Joined Cases T-99/09 and T-308/09 Italian Republic v European Commission

(Case C-385/13 P)

(2013/C 252/40)

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri e P. Gentile, acting as Agents)

Other party to the proceedings: European Commission

Forms of order sought

—	Setting aside of the judgment of the General Court of the European Union of 19 April 2013 in Joined Cases T-99/09 and T-308/09, notified to the Italian Government on 24 April 2013

—

Adjudicating on the merits of the case, the annulment of the following acts:

—

Letter No 000841 of 2 February 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Payments made by the Commission which differ from the amount requested’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as stated in the memorandum of 22 December 2008 referred to above’;

—

Letter No 001059 of 6 February 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Suspension of the request for payment and for information concerning financial corrections under Article 39 of Regulation No 1260/99 for the Campania Regional Operation’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as previously indicated’;

—

Letter No 012480 of 22 December 2008 of the European Commission — Directorate General for Regional Policy — concerning ROP Campania 2000-2006 (CCI No 1999 IT 16 1 PO 007) — Outcome of infringement procedure 2007/2195 on waste management in Campania, by which ‘the Commission requests that, with effect from the next request for payment, all expenditure relating to measure 1.7 incurred after 29 June 2007 be deducted’.

Pleas in law and main arguments

In support of its appeal, the Italian Republic relies on the following eight pleas:

First plea: Breach of Article 9(e), (f), (h), (j), (k), (l), (m); point (f) of the first subparagraph of Article 32(3), Article 32(4) and (5); and the second subparagraph of Article 31(2) of Regulation No 1260/99 (1).

In order for a request for payment of assistance from a structural fund for actions provided for in a measure to be declared unacceptable on the basis that an infringement procedure is pending, it is necessary that there be a specific and non-generic relationship between the infringement and the measure in question and the Commission would have to show the specific danger that financing the measure would result in financing the infringement. It would not be enough, as the General Court found, to only have a ‘sufficiently direct link’ which is not otherwise corroborated.

Second plea: Breach of the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.

In the present case, in any event, such a link is missing because the General Court found that it was apparent from the case file that in the infringement procedure the insufficient differentiated collection was relied on as a contributory cause for the insufficiency of landfills and that under measure 1.7 aid was to be provided to municipalities to increase differentiated collection. The General Court therefore was unable to clarify whether the link between the infringement and the measure was such that the financing of the measure mitigated or aggravated the infringement. On that basis the General Court should have ruled out the existence of any such link and accepted the first plea of the application initiating proceedings.

Third plea: Failure to provide adequate reasons.

In the third plea of the application at first instance, the Italian Government demonstrated clearly that there was no overlap between the infringement and the measure. The General Court, when rejecting the first plea, found to the contrary without examining the evidence submitted by the Italian Government, and in so doing it failed to provide adequate reasons.

Fourth plea: Breach of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999. Failure to provide adequate reasons.

The breach of the above vitiates also the part of the judgment in which the General Court rejected the second plea of the application at first instance.

Fifth plea: Failure to provide adequate reasons.

There is a failure to provide adequate reasons also with respect to the rejection of the third plea of the application initiating proceedings, in which the Italian Government stated that the contested proceedings were grounded on a letter of the Commission of 20 October 2008 which challenged facts which were not referred to in the infringement procedure. The General Court failed to take account of that argument.

Sixth plea: Breach of the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.

In any event, since, when ruling on the fourth plea, the General Court found in essence that the letter of 20 October 2008 referred to facts unconnected to the infringement proceedings it therefore should have accepted the third plea. By not having done so, it breached the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.

Seventh plea: Breach of the first and second clauses of point (f) of the first subparagraph of Article 32(3) and of Article 39(1) and (2) of Regulation No 1260/1999.

The General Court wrongly rejected the fourth plea of the application initiating proceedings, in which the Italian Government criticised the Commission for having suspended the payments due to concerns about the correctness of the management of the measure; it did, however, require that the procedure set out in Article 39(1) and (2) of Regulation No1260/1999, referred to in the first clause of point (f) of the first subparagraph of Article 32(3), be followed. The General Court was unable to refute the arguments of the Italian Government concerning the reasoning of the measure adopted by the Commission.

Eight plea: Breach of the second paragraph of Article 296 TFEU.

The General Court wrongly rejected the argument that the Commission had failed to provide adequate reasons. Considering the importance that argument, the Commission should have explained why there was not any contradiction between condemning insufficient differentiated collection in the infringement procedure and refusing to finance the measure aimed at increasing differentiated collection.

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ L 161, 26.6.1999, p. 1).

31.8.2013

Official Journal of the European Union

C 252/27

Judgment of the General Court of 11 July 2013 — BVGD v Commission

(Joined Cases T-104/07 and T-339/08) (1)

(Competition - Agreements and abuse of a dominant position - Rough diamond market - ‘Supplier of Choice’ (SOC) system of distribution - Decision rejecting a complaint - No Community interest - Legal basis - Procedural rights of a complainant - Access to documents - Obligations in relation to the investigation of a complaint - Market foreclosure effects - Manifest error of assessment)

(2013/C 252/41)

Language of the case: English

Parties

Applicant: Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD) (Antwerp, Belgium) (represented: initially by L. Levi and C. Ronzi and, in Case T-104/07, by G. Vandersanden, and subsequently by L. Levi and M. Vandenbussche, lawyers)

Defendant: European Commission (represented: initially by F. Castillo de la Torre, R. Sauer and J. Bourke, and subsequently by F. Castillo de la Torre and R. Sauer, Agents, and, in Case T-104/07, initially by S. Drakakakis, lawyer, and by T. Soames, Solicitor, and subsequently by T. Soames, and, in Case T-339/08, by T. Soames)

Interveners in support of the defendant: De Beers (Luxembourg, Luxembourg); and De Beers UK Ltd, formerly The Diamond Trading Co. Ltd (London, United Kingdom) (represented: initially by W. Allan and S. Horwitz, Solicitors, and subsequently by W. Allan, J. Ysewyn, lawyer, and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers, and P. Riedel, Solicitor)

Re:

Applications for the annulment of the Commission’s Decisions of 26 January 2007 (Case COMP/39.221/B-2 — BVGD/De Beers) and of 5 June 2008 (Case COMP/39.221/E-2 — De Beers/DTC Supplier of Choice) rejecting the applicant’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements.

Operative part of the judgment

The Court:

1.	Dismisses the actions;

2.	Orders Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD) to bear its own costs and to pay those incurred by the European Commission;

3.	Orders De Beers and De Beers UK Ltd to bear their own costs.

(1) OJ C 129, 9.6.2007.

31.8.2013

Official Journal of the European Union

C 252/27

Judgment of the General Court of 11 July 2013 — Spira v Commission

(Joined Cases T-108/07 and T-354/08) (1)

(Competition - Agreements and abuse of a dominant position - Rough diamond market - ‘Supplier of Choice’ (SOC) system of distribution - Decision rejecting a complaint - No Community interest - Procedural rights of a complainant - Access to documents - Obligations in relation to the investigation of a complaint - Market foreclosure effects - Manifest error of assessment)

(2013/C 252/42)

Language of the case: English

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerp, Belgium) (represented by: Y. van Gerven, F. Louis, A. Vallery and J. Bourgeois, lawyers)

Defendant: European Commission (represented: initially by F. Castillo de la Torre, R. Sauer and J. Bourke, and subsequently by F. Castillo de la Torre and R. Sauer, Agents, and, in Case T-108/07, initially by S. Drakakakis, lawyer, and T. Soames, Solicitor, and subsequently by T. Soames and, in Case T-354/08, by T. Soames)

Interveners in support of the defendant: De Beers (Luxembourg, Luxembourg); and De Beers UK Ltd, formerly The Diamond Trading Co. Ltd (London, United Kingdom) (represented: initially by W. Allan and S. Horwitz, Solicitors, and J. Ysewyn, lawyer, and subsequently by W. Allan, J. Ysewyn and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers, and P. Riedel, Solicitor)

Re:

Applications for the annulment of the Commission’s Decisions of 26 January 2007 (Case COMP/38.826/B-2 — Spira/De Beers/DTC Supplier of Choice) and of 5 June 2008 (Case COMP/38.826/E-2 — De Beers/DTC Supplier of Choice) rejecting the applicant’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements.

Operative part of the judgment

The Court:

1.	Dismisses the actions;

2.	Orders Diamanthandel A. Spira BVBA to bear its own costs and to pay those incurred by the European Commission;

3.	Orders De Beers and De Beers UK Ltd to bear their own costs.

(1) OJ C 129, 9.6.2007.

31.8.2013

Official Journal of the European Union

C 252/28

Judgment of the General Court (Fifth Chamber) of 11 July 2013 — Hangzhou Duralamp Electronics v Council

(Case T-459/07) (1)

(Dumping - Imports of integrated electronic compact fluorescent lamps (CFL-i) originating in China, Vietnam, Pakistan and the Philippines - Expiry of anti-dumping measures - Review - Like product - Data used to determine the injury - Analogue country - Community interest - Article 4(1) and Article 5(4) of Regulation (EC) No 384/96 (now Article 4(1) and Article 5(4) of Regulation (EC) No 1225/2009) - Obligation to state reasons - Rights of the defence)

(2013/C 252/43)

Language of the case: English

Parties

Applicant: Hangzhou Duralamp Electronics Co., Ltd (Hangzhou, China) (represented by: M. Gambardella and V. Villante, lawyers)

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

Interveners in support of the defendant: European Commission (represented by: H. van Vliet and K. Talabér-Ritz, Agents); and by Osram GmbH (Munich, Germany) (represented by: R. Bierwagen, lawyer)

Re:

Application for annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p. 1)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hangzhou Duralamp Electronics Co., Ltd to bear its own costs and to pay those incurred by the Council of the European Union and by Osram GmbH;

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

(1) OJ C 51, 23.2.2008.

31.8.2013

Official Journal of the European Union

C 252/28

Judgment of the General Court of 11 July 2013 — Philips Lighting Poland and Philips Lighting v Council

(Case T-469/07) (1)

(Dumping - Imports of integrated electronic compact fluorescent lamps (CFL-i) originating in China, Vietnam, Pakistan and the Philippines - Expiry of anti-dumping measures - Review - Articles 4(1), 5(4) and 9(1) of Regulation (EC) No 384/96 (now Articles 4(1), 5(4), and 9(1) of Regulation (EC) No 1225/2009) - Concept of Community industry - Determination of injury - Obligation to state the reasons)

(2013/C 252/44)

Language of the case: English

Parties

Applicants: Philips Lighting Poland S.A. (Piła, Poland), and Philips Lighting BV (Eindhoven, Netherlands) (represented by: L. Catrain González, lawyer, and E. Wright, Barrister)

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

Interveners in support of the applicants: Hangzhou Duralamp Electronics Co., Ltd, (Hangzhou, China) (represented by: M. Gambardella and V. Villante, lawyers), and GE Hungary Ipari és Kereskedelmi Zrt. (GE Hungary Zrt) (Budapest, Hungary) (represented by: P. De Baere, lawyer)

Interveners in support of the defendant: European Commission (represented by: H. van Vliet and K. Talabér Ritz, Agents), and Osram GmbH (Munich, Germany) (represented by: R. Bierwagen, lawyer)

Re:

Application for the annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

Orders Philips Lighting Poland S.A. and Philips Lighting BV to bear their own costs, to pay the costs of the Council of the European Union, with the exception of those incurred by it in connection with the interventions of Hangzhou Duralamp Electronics Co., Ltd and GE Hungary Ipari és Kereskedelmi Zrt (GE Hungary Zrt), and to pay the costs of Osram GmbH;

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

4.	Orders Hangzhou Duralamp Electronics and GE Hungary to bear their own costs and to pay those incurred by the Council in connection with their interventions.

(1) OJ C 51, 23.2.2008.

31.8.2013

Official Journal of the European Union

C 252/29

Judgment of the General Court of 11 July 2013 — Spain v Commission

(Case T-358/08) (1)

(Cohesion Fund - Regulation (EC) No 1164/94 - Project for the drainage of Saragossa - Partial cancellation of financial assistance - Public procurement - Concept of work - Article 14(10) and (13) of Directive 93/38/EEC - Splitting of contracts - Legitimate expectations - Obligation to state reasons - Time-limit for the adoption of a decision - Determination of financial corrections - Article H(2) of Annex II to Regulation No 1164/94 - Proportionality - Limitation)

(2013/C 252/45)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: initially J. Rodríguez Cárcamo and subsequently A. Rubio González, lawyers)

Defendant: European Commission (represented by: G. Valero Jordana and A. Steiblytė, acting as Agents)

Re:

Application for annulment of Commission Decision C(2008) 3249 of 25 June 2008 concerning the reduction of the assistance granted under the Cohesion Fund to the Kingdom of Spain in respect of Project No 96/11/61/018 — ‘Saneamiento de Zaragoza’ by Commission Decision C(96) 2095 of 26 July 1996

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

(1) OJ C 272, 25.10.2008.

31.8.2013

Official Journal of the European Union

C 252/29

Judgment of the General Court of 11 July 2013 — SA.PAR. v OHIM — Salini Costruttori (GRUPPO SALINI)

(Case T-321/10) (1)

(Community trade mark - Invalidity proceedings - Community word mark GRUPPO SALINI - Bad faith - Article 52(1)(b) of Regulation (EC) No 207/2009)

(2013/C 252/46)

Language of the case: Italian

Parties

Applicant: SA.PAR. Srl (Rome, Italy) (represented by: A. Masetti Zannini de Concina, M. Bussoletti and G. Petrocchi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Salini Costruttori SpA (Rome, Italy) (represented by: C. Bellomunno and S. Troilo, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 21 April 2010 (Case R 219/2009-1), relating to invalidity proceedings between Salini Costruttori SpA and SA.PAR. Srl

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders SA.PAR. Srl to pay the costs.

(1) OJ C 260, 25.9.2010.

31.8.2013

Official Journal of the European Union

C 252/29

Judgment of the General Court of 11 July 2013 — Aventis Pharmaceuticals, Inc. v OHIM — Fasel (CULTRA)

(Case T-142/12) (1)

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

(2013/C 252/47)

Language of the case: English

Parties

Applicant: Aventis Pharmaceuticals, Inc. (Bridgewater, United States) (represented by: R. Gilbey, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Fasel Srl (Bologna, Italy)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 26 January 2012 (Case R 2478/2010-1) relating to opposition proceedings between Aventis Pharmaceuticals, Inc. and Fasel Srl.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 January 2012 (Case R 2478/2010-1).

2.	Dismisses the remainder of the action.

3.	Orders OHIM to pay its own costs and those of Aventis Pharmaceuticals, Inc., for the purposes of the proceedings before the General Court and of those before the Board of Appeal.

(1) OJ C 165, 9.6.2012.

31.8.2013

Official Journal of the European Union

C 252/30

Judgment of the General Court of 11 July 2013 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METRO)

(Case T-197/12) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark METRO - Earlier Community figurative mark GRUPOMETROPOLIS - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Right to a fair hearing - Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms - Articles 75 and 76 of Regulation (EC) No 207/2009)

(2013/C 252/48)

Language of the case: German

Parties

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

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 1 March 2012 (Case R 2440/2010-1), relating to opposition proceedings between Metropolis Inmobiliarias y Restauraciones, SL and MIP Metro Group Intellectual Property GmbH & Co. KG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Metropolis Inmobiliarias y Restauraciones, SL to pay the costs.

(1) OJ C 209, 14.7.2012.

31.8.2013

Official Journal of the European Union

C 252/30

Judgment of the General Court of 11 July 2013 — Think Schuhwerk v OHIM (Red shoelace end caps)

(Case T-208/12) (1)

(Community trade mark - Application for a Community trade mark - Red shoelace end caps - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Procedure by default)

(2013/C 252/49)

Language of the case: German

Parties

Applicant: Think Schuhwerk GmbH (Kopfing, Austria) (represented by: M. Gail, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 23 February 2012 (Case R 1552/2011-1), concerning an application for registration as a Community trade mark of a sign consisting of red shoelace end caps

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Think Schuhwerk GmbH to bear its own costs.

(1) OJ C 209, 14.7.2012.

31.8.2013

Official Journal of the European Union

C 252/31

Order of the General Court of 8 July 2013 — Marcuccio vCommission

(Case T-238/11 P) (1)

(Appeal - Civil service - Officials - Invalidity allowance - Payment of arrears - Default interest due - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2013/C 252/50)

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italie) (represented by: G. Cipressa, lawyer)

Other party in the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

Appeal against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 15 February 2011 in Case F-81/09 Marcuccio v Commission (not published in the ECR) seeking to have that judgment set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission in the appeal proceedings.

(1) OJ C 186, 25.6.2011.

31.8.2013

Official Journal of the European Union

C 252/31

Action brought on 14 June 2013 — Tsujimoto/OHIM — Kenzo (KENZO)

(Case T-322/13)

(2013/C 252/51)

Language in which the application was lodged: English

Parties

Applicant: Kenzo Tsujimoto (Osaka, Japon) (represented by: A. Wenninger-Lenz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kenzo (Paris, France)

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 (Trademarks and Designs) of 25 March 2013 (Case R 1364/2012-2);

—	Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘KENZO’, for services in classes 35, 41 and 43 — Community trade mark application No 8 701 286

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

Mark or sign cited in opposition: Community trade mark of the word mark ‘KENZO’, for goods in classes 3, 18 and 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the CTM application in its entirety

Pleas in law: Infringement of Articles 76(2) and 8(5) of CTMR.

31.8.2013

Official Journal of the European Union

C 252/31

Action brought on 14 June 2013 — Pure Fishing/OHIM — Łabowicz (NANOFIL)

(Case T-323/13)

(2013/C 252/52)

Language in which the application was lodged: English

Parties

Applicant: Pure Fishing, Inc. (Spirit Lake, United States) (represented by: J. Dickerson, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Edward Łabowicz (Kłodzko, Poland)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Board of Appeal in case no R1241/2012-2;

—	Authorize for registration CTM application no 9611872; and

—	Order the defendant to pay the costs of the action.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘NANOFIL’ for goods in class 28 — Community trade mark application No 9 611 872

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

Mark or sign cited in opposition: Community trade mark registration of the figurative mark ‘NANO’ for goods in class 28

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

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

31.8.2013

Official Journal of the European Union

C 252/32

Action brought on 17 June 2013 — Endoceutics/OHIM — Merck (FEMIVIA)

(Case T-324/13)

(2013/C 252/53)

Language in which the application was lodged: English

Parties

Applicant: Endoceutics, Inc. (Quebec, Canada) (represented by: M. Wahlin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the OHIM of 15 April 2013, in Case R 1021/2012-4;

—	Reject the opposition of the other party and allow registration of the Community trade mark applied for, namely the application for the mark FEMIVIA under application No. 9 386 343;

—	Order the other party to pay the applicant’s costs on the appeal and regarding the proceedings before the OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FEMIVIA’, for goods in class 5 — Community trade mark application No 9 386 343

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

Mark or sign cited in opposition: Community trade mark of the word mark ‘FEMIBION’, for goods in class 5 and International registration with effect in the European Union for the figurative mark in black and white ‘femibion’ for goods of classes 5 29 and 30

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the CTM application in its entirety

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

31.8.2013

Official Journal of the European Union

C 252/32

Action brought on 4 June 2013 — Mallis and Malli v Commission and European Central Bank

(Case T-327/13)

(2013/C 252/54)

Language of the case: Greek

Parties

Applicants: Constantinos Mallis (Larnaca, Cyprus) and Elli Malli (Larnaca, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank and European Commission

Form of order sought

The applicants claim that the General Court should:

—	Declare the action to be admissible and well founded;

—

annul the decision of the Eurogroup of 25 March 2013, which took its final form through the decision of the Governor of the Central Bank of Cyprus as the representative and/or agent of the European System of Central Banks dated 29 Μarch 2013, K.D.P [Regulatory Administrative Act] 104/2013, whereby the ‘sale of certain operations’ of Cyprus Popular Bank Public Co Ltd was decided and which in essence constitutes a joint decision of not only the European Central Bank but also of the European Commission;

—	In addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a joint decision of the European Central Bank and/or of the European Commission irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicants put forward four pleas in law.

By the first plea for annulment the applicants maintain that the contested decision is null and void, since the decision exceeds the powers conferred by the Treaty on European Union on not only the European Central Bank but also the European Commission, and is manifestly an act which was ultra vires of those two institutions.

By the second plea for annulment, the applicants maintain that the contested decision is in breach of the right to respect for property, which is protected by Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Article 14 of the European Convention for the Protection of Human Rights, as confirmed by the Charter of Fundamental Rights of the European Union.

3.	By the third plea for annulment, the applicants maintain that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

By the fourth plea for annulment, the applicants maintain that the contested decision is also contrary to the generally recognised legal principles which have been disseminated in European Union law and in particular to the principle that no-one may rely on his own failures to obtain an advantage and/or to justify wrongful and/or unlawful conduct.

31.8.2013

Official Journal of the European Union

C 252/33

Action brought on 4 June 2013 — Tameio Pronoias Prosopikou Trapezis Kyprou v Commission and European Central Bank

(Case T-328/13)

(2013/C 252/55)

Language of the case: Greek

Parties

Applicant: Tameio Pronoias Prosopikou Trapezis Kyprou (Nicosia, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank and European Commission

Form of order sought

The applicant claims that the General Court should:

—	declare the action to be admissible and well founded;

—

—	in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicant puts forward four pleas in law.

By the first plea for annulment the applicant maintains that the contested decision is null and void, since the decision exceeds the powers conferred by the Treaty on European Union on not only the European Central Bank but also the European Commission, that is to say, it is an act which was ultra vires of those two institutions.

By the second plea for annulment, the applicant maintains that the contested decision is in breach of the right to respect for property, which is protected by Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Article 14 of the European Convention for the Protection of Human Rights, as confirmed by the Charter of Fundamental Rights of the European Union.

3.	By the third plea for annulment, the applicant maintains that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

By the fourth plea for annulment, the applicant maintains that the contested decision is also contrary to the generally recognised legal principles which have been disseminated in European Union law and in particular to the principle that no-one may rely on his own failures to obtain an advantage and/or to justify wrongful and/or unlawful conduct.

31.8.2013

Official Journal of the European Union

C 252/33

Action brought on 4 June 2013 — Khatzithoma and Khatzithoma v Commission and European Central Bank

(Case T-329/13)

(2013/C 252/56)

Language of the case: Greek

Parties

Applicants: Petros Khatzithoma (Nicosia, Cyprus) and Elenitsa Khatzithoma (Nicosia, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank, European Commission

Form of order sought

The applicants claims that the General Court should:

—	declare the action to be admissible and well founded;

—

—	in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicants put forward four pleas in law.

By the first plea for annulment the applicants maintain that the contested decision is null and void, since the decision exceeds the powers conferred by the Treaty on European Union on not only the European Central Bank but also the European Commission, that is to say, it is an act which was ultra vires of those two institutions.

3.	By the third plea for annulment, the applicants maintain that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

31.8.2013

Official Journal of the European Union

C 252/34

Action brought on 4 June 2013 — Chatziiannou v Commission and European Central Bank

(Case T-330/13)

(2013/C 252/57)

Language of the case: Greek

Parties

Applicant: Lella Chatziiannou (Nicosia, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank and European Commission

Form of order sought

The applicant claims that the General Court should:

—	declare the action to be admissible and well founded;

—

—	in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicant puts forward four pleas in law.

3.	By the third plea for annulment, the applicant maintains that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

31.8.2013

Official Journal of the European Union

C 252/35

Action brought on 4 June 2013 — Nikolaou v Commission and European Central Bank

(Case T-331/13)

(2013/C 252/58)

Language of the case: Greek

Parties

Applicant: Marinos Nikolaou (Nicosia, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank, European Commission

Form of order sought

The applicant claims that the General Court should:

—	declare the action to be admissible and well founded;

—

—	in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicant puts forward four pleas in law.

3.	By the third plea for annulment, the applicant maintains that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

31.8.2013

Official Journal of the European Union

C 252/35

Action brought on 4 June 2013 — Christodoulou and Stavrinou v Commission and European Central Bank

(Case T-332/13)

(2013/C 252/59)

Language of the case: Greek

Parties

Applicants: Chrisanthi Christodoulou (Paphos, Cyprus) and Maria Stavrinou (Larnaca, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

Defendants: European Central Bank and European Commission

Form of order sought

The applicants claim that the General Court should:

—	declare the action to be admissible and well founded;

—

—	in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

—	order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action the applicants put forward four pleas in law.

By the first plea for annulment the applicants maintain that the contested decision is null and void, since the decision exceeds the powers conferred by the Treaty on European Union on not only the European Central Bank but also the European Commission, that is to say, it is an act which was ultra vires of those two institutions.

3.	By the third plea for annulment, the applicants maintain that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

31.8.2013

Official Journal of the European Union

C 252/36

Action brought on 17 June 2013 — Westermann Lernspielverlag/OHIM — Diset (bambinoLÜK)

(Case T-333/13)

(2013/C 252/60)

Language in which the application was lodged: English

Parties

Applicant: Westermann Lernspielverlag GmbH (Braunschweig, Germany) (represented by: A. Nordemann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Diset, SA (Barcelona, Spain)

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) [OHIM] of 3 April 2013, Case R 1323/2012-2, relating to the opposition proceedings No. B 1 724 593 [Community trade mark application 009080359] between DISET, S.A. and Westermann Lernspielverlag GmbH;

—	Order the Defendant to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘bambinoLÜK’, for goods in classes 9, 16 and 28 — Community trade mark application No 9 080 359

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

Mark or sign cited in opposition: Community trade mark of the figurative mark ‘BAMBINO’ for goods in classes 16, 28 and 41

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Partly upheld the appeal and allows the CTM application to proceed for certain goods of class 9

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

31.8.2013

Official Journal of the European Union

C 252/36

Action brought on 24 June 2013 — Borghezio v Parliament

(Case T-336/13)

(2013/C 252/61)

Language of the case: French

Parties

Applicant: Mario Borghezio (Turin, Italy) (represented by: H. Laquay, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

—

declare the application admissible and founded and, consequently, annul the decision of the European Parliament taken in the form of a declaration of its President at the plenary session of 10 June 2013, according to which, as from 3 June 2013, the applicant is to be regarded as as a ‘non-attached’ member and is thus excluded from the political group ‘Europe of Freedom and Democracy’ as from that date;

—	determine the costs in accordance with the law.

Pleas in law and main arguments

In support of his action, the applicant relies — in addition to the fact that the decision declaring him to be a non-attached member produces legal effects since it prevents him from carry out his parliamentary mandate in the same conditions as the members of Parliament who are affiliated to a political group — on two pleas in law relating to the substance of the case. The applicant submits that the Parliament is required to assess whether there has been a serious and manifest infringement of the statutes of the political group or of a general principle of law.

By his first ground of appeal, the applicant submits that there has been a serious and manifest infringement of the statutes of the political group ‘Europe of Freedom and Democracy’, since the decision to exclude the applicant from the group was taken prior to the group’s next meeting, contrary to what is stated in its statutes.

2.	By his second plea in law, he alleges an infringement of his rights of defence, since he was not able to put forward his pleas in his defence at a meeting of the political group ‘Europe of Freedom and Democracy’.

31.8.2013

Official Journal of the European Union

C 252/37

Action brought on 21 June 2013 — Energa Power Trading v Commission

(Case T-338/13)

(2013/C 252/62)

Language of the case: English

Parties

Applicant: Energa Power Trading Promitheias kai Emporias Energeias AE (Athens, Greece) (represented by: S. Pappas, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

Declare and rule that the Commission has failed to fulfill its obligations under the Treaty, since, despite having been formally requested to do so, it failed to define its position on the complaint lodged on 9 December 2010, concerning State aid which the Greek authorities unlawfully granted to DEI; and

—	Order that the Commission bear the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the Commission has failed to act in relation to the alleged illegal State aid granted in favour of DEI.

By omitting to take a position — positive or negative — on the applicant’s complaint alleging illegal state aid granted in favour of DEI despite the submission of a formal notice for after a period of more than 28 months (and at any rate more than 26 months), the Commission has failed to close the preliminary investigation within reasonable time. To the extent that the aforementioned delay may not justified by reference to any exceptional circumstances the Commission has failed to act despite its respective exclusive competence, thus contravening the relate provisions of the Treaty (namely, Articles 106, 107 and 265 TFEU) and Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.

31.8.2013

Official Journal of the European Union

C 252/37

Action brought on 1 July 2013 — Hawe Hydraulik v OHIM — HaWi Energietechnik (HAWI)

(Case T-347/13)

(2013/C 252/63)

Language in which the application was lodged: German

Parties

Applicant: Hawe Hydraulik SE (Munich, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal: HaWi Energietechnik AG (Eggenfelden, Germany)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 April 2013 in Case R 1690/2012-4 relating to Community trade mark application No 6 558 589 ‘HAWI’;

—	Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: HaWi Energietechnik AG

Community trade mark concerned: the word mark ‘HAWI’ for goods and services in Classes 7, 9, 35, 37 and 42 — Community trade mark application No 6 558 589

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

Mark or sign cited in opposition: the figurative mark including the word element ‘HAWE’ for goods in Classes 7 and 9

Decision of the Opposition Division: the opposition was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

—	Infringement of Article 42(2) in conjunction with Article 78(1)(f) of Regulation No 207/2009;

—	Infringement of the right to be heard regarding the erroneous assessment of the evidence constituted by the declaration on oath;

—	Infringement of the right to be heard regarding the erroneous assessment of the evidence constituted by the extracts from the Internet;

—	Infringement of the right to be heard regarding the assessment of the proof of use in its entirety;

—	Infringement of the right to be heard regarding the failure to take the proof of use into account;

—	Infringement of Article 76(2) of Regulation No 207/2009

31.8.2013

Official Journal of the European Union

C 252/38

Action brought on 1 July 2013 — Orange Business Belgium v Commission

(Case T-349/13)

(2013/C 252/64)

Language of the case: English

Parties

Applicant: Orange Business Belgium SA (Brussels, Belgium) (represented by: B. Schutyser, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of DG DIGIT of the European Commission, notified to the applicant on 19 April 2013, rejecting the applicant's tender and awarding the contract to another tenderer;

—	In the event at the time of the rendering of the judgment the Commission would have already signed the Trans European Services for Telematics between Administrations — new generation (‘TESTA-ng’) contract, declare that this contract is null and void; and

—	Order the defendant to pay the costs of the proceedings, including the expenses for legal counsel incurred by the applicant.

Pleas in law and main arguments

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

First plea in law, alleging that the defendant violated the tendering specifications, Article 89(1) and Article 100(1) of the Financial Regulation 1605/2002 (1) (Article 102(1) and Article 113(1) of the Financial Regulation 966/2012) in particular the principles of transparency, equality and non-discrimination because a) some communicated evaluation rules were not applied, b) some communicated evaluation rules were wrong and others, not communicated, evaluation rules have been applied instead, and c) the method for the technical evaluation was not communicated prior to the submitting of the tenders.

Second plea in law, alleging that the defendant infringed the principles of transparency and equal treatment of tenderers contained in Article 89(1) of the Financial Regulation 1605/2002 (Article 102(1) of the Financial Regulation 966/2012), which invalidate the contested decision because it held the offer of the another tenderer regular, despite fundamental non-compliant elements in breach of the technical requirements of the Tendering Specifications.

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

31.8.2013

Official Journal of the European Union

C 252/38

Action brought on 2 July 2013 — Jordi Nogues v OHIM — Grupo Osborne (BADTORO)

(Case T-350/13)

(2013/C 252/65)

Language in which the application was lodged: Spanish

Parties

Applicant: Jordi Nogues SL (Barcelona, Spain) (represented by: J.R. Fernández Castellanos, M. J. Sanmartín Sanmartín and E. López Pares, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grupo Osborne, SA (El Puerto de Santa María, Spain)

Form of order sought

The applicant claims that the General 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 16 April 2013 in Case R 1446/2012-2;

—	order OHIM to bear its own costs and to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Applicant

Community trade mark concerned: Figurative mark with word element ‘BADTORO’ for goods and services in Classes 25, 34 and 35 — Community trade mark application No 9 565 581

Proprietor of the mark or sign cited in the opposition proceedings: Grupo Osborne, SA

Mark or sign cited in opposition: National figurative mark with word element ‘TORO’, national word mark ‘EL TORO’ and Community word mark ‘TORO’, for goods and services in Classes 25, 34, 35

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

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

—	Incorrect departure from the general principle of comparison as a whole, without valid reason

31.8.2013

Official Journal of the European Union

C 252/39

Action brought on 2 July 2013 — Crown Equipment (Suzhou) and Crown Gabelstapler v Council

(Case T-351/13)

(2013/C 252/66)

Language of the case: English

Parties

Applicants: Crown Equipment (Suzhou) Co. Ltd (Suzhou, China) and Crown Gabelstapler GmbH & Co. KG (Roding, Germany) (represented by: K. Neuhaus, H.-J. Freund and B. Ecker, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

—	Declare the application admissible;

—	Annul Council Implementing Regulation (EU) No 372/2013 (1) of 22 April 2013 amending Implementing Regulation (EU) No 1008/2011 of 10 October 2011 as far as it concerns the applicants; and

—	Order the defendant to bear its own costs as well as those of the applicants.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Art. 2 (7) of Council Regulation (EC) No 1225/2009 (2) or Art. 296 (2) TFEU in so far as the Council made manifest errors of assessment or infringed its obligation to state reasons when it selected Brazil as an analogue country for the purposes of determining the normal value. The Council wrongly found that or failed to reason why there is sufficient competition on the Brazilian market, in particular with regard to the degree of competition between domestic producers and with regard to the degree of competition exerted by imports.

Second plea in law, alleging infringement of Art. 2 (7) of Council Regulation (EC) No 1225/2009 or Art. 296 (2) TFEU in so far as the Council made a manifest error of assessment or infringed its obligation to state reasons when rejecting a claim for an adjustment to the normal value to account for the effect of a 14 % import duty on the product concerned in the analogue country Brazil.

Third plea in law, alleging an infringement of Art. 9 (4) of Council Regulation (EC) No 1225/2009 in so far as the Council made a manifest error of assessment by, when applying the ‘lesser duty rule’, comparing the dumping margin established in the contested regulation with the injury elimination level established in the original investigation in 2005 instead of establishing a new injury elimination level.

(1) Council Implementing Regulation (EU) No 372/2013 of 22 April 2013 amending Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 112, p. 1)

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51)

31.8.2013

Official Journal of the European Union

C 252/39

Appeal brought on 2 July 2013 by BX against the judgment of the Civil Service Tribunal of 24 April 2013 in Case F-88/11 BX v Commission

(Case T-352/13 P)

(2013/C 252/67)

Language of the case: English

Parties

Appellant: BX (Washington, United States) (represented by: R. Rata, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the Court should:

—	Set aside the judgment of Civil Service Tribunal of 24 April 2013, in Case F-88/11;

—	Annul the contested decision of the Selection Board not to include the name of the appellant on the reserve list of successful candidates in the competition EPSO/AD/148/09-RO (OJ 2009 C 14 A, p. 1); and

—	Order the Commission to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging the Civil Service Tribunal’s finding (at paragraph 33 of its judgment) implying that the appellant did not meet the standard of proof is not applicable in the case at hand.

Second plea in law, alleging that the Civil Service Tribunal made an error in law when stating that a candidate whose initial mark was below the passing mark in accordance with pre-established criteria, is not entitled to a comparative assessment (paragraph 41), as:

—	According to the settled case law, each and every candidate in an EPSO competition is entitled to a comparative assessment, irrespective of whether his/her initial result is above or below the passing mark;

—	The Selection Board did not fulfill its comparative assessment duty not only with respect to the appellant, but also with respect to all the other candidates in the oral test as the time reserved for the final evaluation session was manifestly insufficient; and

—	The judgment under appeal does not rely on the relevant arguments raised by the appellant and does not take into account the inconsistencies in the defendant's arguments.

3.	Third plea in law, alleging that the finding of the Civil Service Tribunal, at paragraph 45 of the judgment under appeal, according to which the principle of equal treatment has not been infringed, is incorrect.

Fourth plea in law, alleging infringement of the rules concerning the composition of the Selection Board, as:

—

The Selection Board had an unbalanced composition (Article 3, fifth indent, of Annex III to the Staff Regulations of Officials of the European Union):

—	The Civil Service Tribunal committed an error in law when stating that it was not disputed that the Selection Board consisted of three members during the appellant’s oral test (paragraph 49 if the judgment under appeal);

—	The Civil Service Tribunal erroneously quoted the Bartha case (paragraph 49) so as to support its finding that the principle of balanced representation of men and women in the composition of the Selection Board has not been infringed.

—	The simultaneous presence of full and alternate members in the Selection Board at the oral tests that rendered the proceedings of the selection board unlawful in the case at hand (paragraph 50);

—	The infringement of the principle of the stable composition of the Selection Board (paragraph 51).

Fifth plea in law, alleging that the Civil Service Tribunal erred in its decision that the circumstances of the present case do not warrant application of Article 87(2) of its Rules of Procedure (paragraph 81), since the defendant conceded that the rejection of the appellant's previous administrative complaints were based on an erroneous motivation and therefore the defendant should bear the costs.

6.	Sixth plea in law, alleging that the moral damages were justified.

31.8.2013

Official Journal of the European Union

C 252/40

Action brought on 9 July 2013 — Italy v Commission

(Case T-358/13)

(2013/C 252/68)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: M. Savatorelli, avvocato dello Stato, and G. Palmieri, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul Commission Implementing Decision 2013/209/EU of 26 April 2013 on ‘the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Fund for Rural Development (EAFRD) for the 2012 financial year’, notified under the reference C(2013) 2444 on 29 April 2013 by Letter SG-Greffe (2013) D/5879, which was received by Italy’s Permanent Representation to the European Union on 29 April 2013, in so far as that decision finds the amount of EUR 5 006 487,10, relating to the Basilicata Region, to be a ‘non-reusable amount’ and thus subtracts that amount from the Basilicata Rural Development Plan’s EAFRD spending limit, with the result that it is impossible for that amount to be used within that limit, essentially leading to the decommitment of the amount in question;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the Italian Government contests Commission Implementing Decision 2013/209/EU of 26 April 2013 on ‘the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Fund for Rural Development (EAFRD) for the 2012 financial year’, notified under document C(2013) 2444 on 29 April 2013, in so far as that decision finds that the amount of EUR 5 006 487,10, relating to the Basilicata Region, is a ‘non-reusable amount’ and accordingly subtracts that amount from the Basilicata Rural Development Plan (RDP)’s EAFRD spending limit, with the result that it is impossible for that amount to be used within that limit, essentially leading to the decommitment of the amount in question.

In that regard, the applicant claims that the adjustment arises from the Commission staff’s assumption that some projects which were paid for in the final quarter of 2011 could not be included in the quarterly declaration of expenditure as they did not comply with the RDP then in force.

The Commission’s position as finally implemented in the contested implementing decision is, according to the applicant, flawed in several respects.

—

First, there are legitimate doubts as to whether it was correct to bring the reduction — made pursuant to Article 27 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1) and categorised as a “non-reusable amount” — within the scope of the decision on the clearance of the accounts, as any amount which has been reduced or suspended must be disregarded by that decision, as established by Article 29(5) of that regulation. One of the ways in which the reduction in question is incorrect is in terms of its quantification;

—	Secondly, the decision is also vitiated by failure to state adequate reasons, given that an amount corresponding to a quarter’s expenditure has been reduced or suspended by the Commission for the purposes of Article 29(5) of Regulation (EC) No 1290/2005;

—

Lastly, the finding that the amount is not reusable is equivalent to decommitting that amount, with the result that the sums involved cannot be used in the future within the Basilicata RDP’s spending limit, even though the EU legislation currently in force does not allow amounts which have been suspended to be decommitted.

31.8.2013

Official Journal of the European Union

C 252/41

Action brought on 11 July 2013 — Spain Doce 13 v OHIM — Ovejero Jiménez and Becerra Guibert (VICTORIA DELEF)

(Case T-359/13)

(2013/C 252/69)

Language in which the application was lodged: Spanish

Parties

Applicant: Spain Doce 13, SL (Crevillente, Spain) (represented by: S. Rizzo, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Gregorio Ovejero Jiménez and María Luisa Becerra Guibert (Alicante, Spain)

Form of order sought

The applicant claims that the General 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 10 April 2013 in Case R 1046/2012-5 in so far as it refuses registration of Community trade mark application No 9 522 384 in relation to the following goods and services:

—	Class 18: goods made of leather and imitations of leather not included in other classes;

—	Class 25: clothing, footwear and headgear;

—	Class 35: retail and wholesale services of clothing, footwear and accessories;

—	order OHIM to pay the costs in accordance with Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: Spain Doce 13, SL

Community trade mark concerned: Word mark ‘VICTORIA DELEF’ for goods and services in Classes 18, 25 and 35 — Community trade mark application No 9 522 384

Proprietors of the mark or sign cited in the opposition proceedings: Gregorio Ovejero Jiménez and María Luisa Becerra Guibert

Mark or sign cited in opposition: National figurative marks containing the word element ‘VICTORIA’, ‘Victoria’ and ‘victoria’ for goods in Class 25

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal upheld in part

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

31.8.2013

Official Journal of the European Union

C 252/42

Action brought on 12 July 2013 — France v Commission

(Case T-366/13)

(2013/C 252/70)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, D. Colas and N. Rouam, Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Annul in its entirety Decision C(2013) 1926 final of the European Commission of 2 May 2013 on State aid No SA.22843 2012 implemented by France in favour of the Société Nationale Corse Méditerranée and the Compagnie Méridionale de Navigation;

—	order the Commission to pay the costs

Pleas in law and main arguments

By its application, the applicant seeks the annulment of Commission Decision C(2013) 1926 final of 2 May 2013, by which the Commission, first, classified as State aid the financial compensation paid to the Société Nationale Corse Méditerranée (SNCM) and the Compagnie Méridionale de Navigation (CNM) in respect of maritime transport services provided between Marseilles and Corsica under a public service agreement during the period 2007-2013. Next, the Commission declared compatible with the internal market the compensation paid to SNCM and CNM for transport services provided throughout the year (‘the basic service’) but declared incompatible with the internal market the compensation paid in respect of the services provided during peak periods, namely Christmas, February, Spring-Autumn and/or Summer (‘the additional services’). Lastly, the Commission ordered the recovery of the aid declared incompatible with the internal market (State aid Case SA.22843 2012/C(ex 2012/NN).

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

First plea in law, divided into two parts, alleging that the concept of State aid within the meaning of Article 107(1) TFEU was misapplied, the Commission having classified the compensation paid to SNCM and CNM as State aid, on the basis the the first and fourth conditions laid down by the Court of Justice in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeberg [2003] ECR I-7747 were not fully satisfied.

—	The applicant submits by the first part of the first plea that the contested decision misapplies the concept of State aid in so far as the Commission took the view that the first condition laid down in Altmark was not fully satisfied. The applicant maintains in that regard:

—

first, that by making a distinction between the basic service and the additional service, the Commission committed an error of fact and of law and failed to have due regard to the broad discretion enjoyed by Member States in determining which services of general economic interest they wish to preserve;

—

second, that, taken together, the services covered by the public service agreement concluded between SNCM and CNM on the one hand, and the Office de Transports de la Corse and the Collectivité territoriale de Corse (Corsica local authorities) on the other, constitute services of general economic interest and that agreement satisfies the first condition laid down in Altmark;

—

third, that even if a distinction must be made between the basic service and the additional service, the additional service constitutes, in the same way as the basic service, a service of general economic interest and satisfies the first condition laid down in Altmark, since there is a genuine need for public services arising from the inadequacy of the regular transport services operating under conditions of free competition.

—

By the second part of the first plea, the applicant submits that the contested decision misinterprets the concept of State aid in that the Commission took the view that the fourth condition laid down in Altmark was not satisfied. The applicant contends that the procedure for the award of the public service contract made it possible to ensure conditions of effective competition and, therefore, the selection of the most economically advantageous tender for the local authorities.

Second plea in law, alleging, in the alternative, infringement of Article 106(2) TFEU, the Commission having taken the view that the financial compensation paid to SNCM in respect of the additional service constituted State aid incompatible with the internal market, on the basis that that service was not a service of general economic interest.

31.8.2013

Official Journal of the European Union

C 252/43

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — BM v ECB

(Case F-78/11) (1)

(Civil service - ECB Staff - Retroactive extension of the probationary period - Decision to end the contract during the probationary period - Disciplinary proceedings)

(2013/C 252/71)

Language of the case: English

Parties

Applicant: BM (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank (ECB) (represented: initially by P. Embley, M. López Torres and E. Carlini, acting as Agents, and subsequently by M. López Torres and E. Carlini, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Application to annul the ECB’s decision to terminate the applicant’s contract during the probationary period because of a disciplinary fault punished by a reprimand.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of the Executive Board of the European Central Bank of 20 May 2011, which terminates BM’s contract as of 31 October 2011;

2.	Dismisses the action as to the remainder;

3.	Declares that the European Central Bank is to bear its own costs and orders it to pay the costs incurred by BM.

(1) OJ C 319, 29.10.11, p. 30.

31.8.2013

Official Journal of the European Union

C 252/43

Judgment of the Civil Service Tribunal (Third Chamber) of 19 June 2013 — BY v EASA

(Case F-81/11) (1)

(EASA staff - Temporary staff - Admissibility - Period for bringing proceedings - Unfavourable evaluation report - Reassignment - Psychological harassment - Misuse of power)

(2013/C 252/72)

Language of the case: French

Parties

Applicant: BY (Lasne, Belgium) (represented by: B.-H. Vincent, lawyer)

Defendant: European Aviation Safety Agency (EASA) (represented by: F. Manuhutu, acting as Agent, and D. Waelbroeck and A. Duron, lawyers)

Re:

Application for annulment of the decision to re-assign the applicant to a non-managerial post in the interest of the service as a result of an unfavourable evaluation report and application to pay the applicant an amount by way of compensation for the damage allegedly suffered

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders BY to bear his own costs and to pay the costs incurred by the European Aviation Safety Agency.

(1) OJ C 340, 19.11.2011, p. 41.

31.8.2013

Official Journal of the European Union

C 252/43

Judgment of the Civil Service Tribunal (Second Chamber) of 19 June 2013 — Goetz v Committee of the Regions

(Case F-89/11) (1)

(Civil Service - Officials - Non-contractual liability - Action for damages - Admissibility - Point from which period to institute proceedings starts to run - OLAF investigation - Administrative investigation - Disciplinary proceedings before the Disciplinary Board - Obligation for the administration to act diligently - Length of disciplinary proceedings - Liability arising from the opening of disciplinary proceedings terminated without a sanction being imposed)

(2013/C 252/73)

Language of the case: French

Parties

Applicant: Charles Dieter Goetz (Linkebeek, Belgium) (represented by: N. Lhoëst and A.-A. Minet, lawyers)

Defendant: Committee of the Regions (represented by: M.J.C. Cañoto Argüelles, Agent, and by B. Cambier, lawyer)

Re:

Application for annulment of the decision of the Committee of the Regions which rejected the applicant’s request, under Article 90(1) of the Staff Regulations, seeking damages for the non-material and material damage allegedly suffered in connection with administrative and disciplinary proceedings.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action.

2.	Orders Mr Goetz to bear his own costs and to pay the costs of the Committee of the Regions of the European Union.

(1) OJ C 347, 26.11.2011, p. 45.

31.8.2013

Official Journal of the European Union

C 252/44

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — BM v ECB

(Case F-106/11) (1)

(Civil Service - ECB Staff - Disciplinary proceedings - Disciplinary penalty - Written reprimand)

(2013/C 252/74)

Language of the case: English

Parties

Applicant: BM (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank (ECB) (represented initially by P. Embley, M. López Torres and E. Carlini, Agents, then by M. López Torres and E. Carlini, Agents and by B. Wägenbaur, lawyer)

Re:

Application to annul the decision of the Deputy Director General of the ECB’s Human Resources, Budget and Organisation Directorate General to impose a reprimand on the applicant.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Declares that BM is to bear his own costs and orders him to pay the costs incurred by the European Central Bank.

(1) OJ C 25, 28.1.2012, p. 68.

31.8.2013

Official Journal of the European Union

C 252/44

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — BU v EMA

(Joined Cases F-135/11, F-51/12, F-110/12) (1)

(Civil Service - Temporary staff - Non-renewal of a fixed-term contract - Act adversely affecting an official - Request within the meaning of Article 90(1) of the Staff Regulations - Request for the reclassification of a contract - Reasonable period - Complaint against the rejection of a compliant - Article 8 of the CEOS - Duty of care)

(2013/C 252/75)

Language of the case: French

Parties

Applicant: BU (London, United Kingdom) (represented by: S. Orlandi, J.-N. Louis and D. Abreu Caldas, lawyers)

Defendant: European Medicines Agency (EMA) (represented: in Case F-135/11, by S. Vincenzo initially, then by T. Jablonski and G. Gavrilidou, Agents, and D. Waelbroeck and A. Duron, lawyers; in Case F-51/12, by T. Jablonski and G. Gavrilidou, Agents, and D. Waelbroeck and A. Duron, lawyers, and in Case F-110/12, by T. Jablonski and N. Rampal Olmedo, Agents)

Re:

Application for annulment of the decision of the European Medicines Agency not to renew the applicant’s contract as a member of the temporary staff.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of the European Medicines Agency not to renew BU’s contract, notified by the letter of 30 May 2011;

2.	Dismisses the action in Case F-135/11 as to the remainder;

3.	Dismisses the actions in Cases F-51/12 and F-110/12;

4.	Orders the European Medicines Agency to bear its own costs and to pay the costs incurred by BU in Cases F-135/11 and F-51/12;

5.	Orders BU to bear his own costs and to pay the costs incurred by the European Medicines Agency in Case F-110/12.

(1) OJ C 65, 3.3.2012, p. 24; OJ C 209, 14.7.2012, p. 14; OJ C 379, 8.12.12, p. 34.

31.8.2013

Official Journal of the European Union

C 252/45

Judgment of the Civil Service Tribunal (Second Chamber) of 12 June 2013 — Bogusz v Frontex

(Case F-5/12) (1)

(Civil service - Members of the temporary staff - Frontex staff - Amendment to the conditions under which the probationary period progressed laid down in Article 14 of the CEOS - Dismissal at the end of the probationary period - Setting objectives - Ground raised for the first time at the hearing)

(2013/C 252/76)

Language of the case: French

Parties

Applicant: Bogusz (Dobroszyce, Poland) (represented by: S. Pappas, lawyer)

Defendant: Frontex (represented by: S. Vuorensola and H. Caniard, acting as Agents, and A. Duron and D. Waelbroeck, lawyers)

Re:

Civil service — Application for the annulment of the decision of Frontex imposing a penalty on the applicant and the decision dismissing him.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union to bear its own costs and to pay one quarter of the costs incurred by Mr Bogusz;

3.	Orders Mr Bogusz to bear three quarters of his own costs.

(1) OJ C 133, 5.5.2012, p.29.

31.8.2013

Official Journal of the European Union

C 252/45

Judgment of the Civil Service Tribunal (Third Chamber) of 19 June 2013 — BY v EASA

(Case F-8/12) (1)

(EASA staff - Member of the temporary staff - Dismissal for incompetence - Duty to have regard for the welfare of officials - External cause for professional difficulties - Psychological harassment - Illness - Damages)

(2013/C 252/77)

Language of the case: French

Parties

Applicant: BY (Lasne, Belgium) (represented by: B.-H. Vincent, lawyer)

Defendant: European Aviation Safety Agency (EASA) (represented by: F. Manuhutu, Agent and D. Waelbroeck and A. Duron, lawyers)

Re:

Application to annul the decision to dismiss the applicant and the application for compensation for damage claimed to be suffered because of that dismissal and alleged harassment.

Operative part of the judgment

The Tribunal:

1.	Orders the European Aviation Safety Agency to pay to BY the sum corresponding to nine months of net remuneration which he received prior to his dismissal;

2.	Dismisses the action as to the remainder;

3.	Orders the European Aviation Safety Agency to bear its own costs and to pay the costs incurred by BY.

(1) OJ C 65, 3.3.2012, p.28.

31.8.2013

Official Journal of the European Union

C 252/45

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — Di Prospero v Commission

(Case F-12/12) (1)

(Civil Service - Appointment - Success in a competition following a request to the applicant to sit the competition with a view to complying with a judgment - Appointment in the grade with retroactive effect)

(2013/C 252/78)

Language of the case: French

Parties

Applicant: Rita Di Prospero (Brussels, Belgium) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

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

Re:

Civil Service — Action for annulment of the Commission’s implied decision rejecting the applicant’s request for classification at grade AD 11 with retroactive effect as at 1 January 2010 and for compensation for damage allegedly suffered.

Operative part of the judgment

The Tribunal:

1.	The decision of the European Commission of 18 October 2011 refusing to grade Ms Di Prospero in grade AD 11 with retroactive effect from 1 January 2010 is annulled;

2.	The remainder of the action is dismissed;

3.	The European Commission shall bear its own costs and shall pay those incurred by Ms Di Prospero.

(1) OJ C 138, 12.5.2012, p. 32.

31.8.2013

Official Journal of the European Union

C 252/46

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — Achab v EESC

(Case F-21/12) (1)

(Civil Service - Officials - Remuneration - Expatriation allowance - Condition laid down in Article 4(1)(a) and (b) of Annex VII to the Staff Regulations - Recovery of sums unduly paid)

(2013/C 252/79)

Language of the case: French

Parties

Applicant: Mohammed Achab (Brussels, Belgium) (represented by: N. Lhoest, lawyer)

Defendant: European Economic and Social Committee (EESC) (represented by: M. Arsène and G. Boudot, acting as Agents)

Re:

Application for annulment of the decision withdrawing the award of expatriation allowance to the applicant and seeking retroactively to recover that allowance.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of the European Economic and Social Committee of 9 June 2011 in so far as it orders the recovery of the expatriation allowance paid to Mr Achab from 1 July 2010;

2.	Dismisses the remainder of the action;

3.	Orders the European Economic and Social Committee to bear its own costs and to pay half of the costs incurred by Mr Achab;

4.	Orders Mr Achab to bear half of his own costs.

(1) OJ C 133, 5.5.2012, p. 30.

31.8.2013

Official Journal of the European Union

C 252/46

Judgment of the Civil Service Tribunal (Third Chamber) of 19 June 2013 — CF v EASA

(Case F-40/12) (1)

(Civil service - Former member of the temporary staff - Fixed-term contract - Dismissal during sick leave - Article 16 of the CEOS - Article 48(b)of the CEOS - Psychological harassment)

(2013/C 252/80)

Language of the case: French

Parties

Applicant: CF (Bierges, Belgium) (represented by: A. Schwend, lawyer)

Defendant: European Aviation Safety Agency (represented by: F. Manuhutu, Agent and D. Waelbroeck and A. Duron, lawyers)

Re:

Application to annul the decision to dismiss the applicant and application for compensation for damage claimed to be suffered because of that dismissal and alleged harassment.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of 24 May 2011 whereby the authority empowered to conclude contracts of employment for the European Aviation Safety Agency terminated CF’s contract as a member of the temporary staff;

2.	Orders the European Aviation Safety Agency to pay CF the sum of EUR 88 189,76 by way of compensation for her non-material damage;

3.	Dismisses the action as to the remainder;

4.	Orders the European Aviation Safety Agency to bear its own costs and to pay three quarters of the costs incurred by CF;

5.	Orders CF to bear one quarter of its own costs.

(1) OJ C 184, 23.6.2012, p.24

31.8.2013

Official Journal of the European Union

C 252/47

Judgment of the Civil Service Tribunal (Third Chamber) of 26 June 2013 — Buschak v Commission

(Case F-56/12) (1)

(Civil Service - Temporary staff - Unemployment allowance - Pension contributions - Application out of time)

(2013/C 252/81)

Language of the case: German

Parties

Applicant: Willy Buschak (Dresde, Germany) (represented by: T. Menssen, lawyer)

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

Re:

Application for annulment of the Commission’s decision not to pay contributions in respect of the applicant to a national pension scheme or to the European Union pension scheme after the end of his contract as a temporary agent during the period in which he was unemployed, and application for him to be included in the European Union pension scheme or for his pension rights to be transferred to the national scheme.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Buschak to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 243, 11.8.2012, p. 34.

31.8.2013

Official Journal of the European Union

C 252/47

Order of the Civil Service Tribunal (Single Judge) of 18 June 2013 — Biwer and Others v Commission

(Case F-115/10) (1)

(Civil Service - Remuneration - Family allowances - Education allowance - Conditions for grant - Deduction of an allowance of the same type received from another source - Action manifestly unfounded)

(2013/C 252/82)

Language of the case: French

Parties

Applicants: Jacques Biwer and Others (Bascharage, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Civil Service — Action for annulment of the Commission decision to consider certain financial assistance from a Member State to students in higher education to be an allowance of the same nature as family allowances and to deduct this financial assistance from the education allowance granted to officials who are parents of those students.

Operative part of the order

1.	The action of Mr Biwer and the other five applicants whose names appear in the annex is dismissed as manifestly unfounded in law.

2.	Mr Biwer and the other five applicants whose names appear in the annex shall bear their own costs and shall pay the costs incurred by the European Commission.

(1) OJ C 30, 29.1.2011, p. 66.

31.8.2013

Official Journal of the European Union

C 252/48

Order of the Civil Service Tribunal (Single Judge) of 18 June 2013 — Jargeac and Others v Commission

(Case F-98/11) (1)

(Civil Service - Remuneration - Family allowances - Education allowance - Conditions for grant - Deduction of an allowance of the same type received from another source - Action in part manifestly inadmissible and in part manifestly unfounded)

(2013/C 252/85)

Language of the case: French

Parties

Applicants: Bernard Jargeac and Others (Hostert, Luxembourg) (represented initially by: F. Moyse and A. Salerno, lawyers, and subsequently by: A. Salerno, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Civil Service — Action for annulment of the decision of the Commission to consider certain financial aid from a Member State to students in higher education to be allowances of the same nature as family allowances and to deduct that financial aid from the education allowance granted to officials who are parents of such students and annulment of the decision to seek repayment of sums unduly paid.

Operative part of the order

1.	The action, in so far as submitted by Mr Finch, is dismissed as inadmissible.

2.	The action, in so far as submitted by Mr Jargeac, Mr Aliaga Artero, Mr Charrière, Mr Clarke, Ms Domingues, Ms Hughes, Mr Lanneluc and Mr Zein, is dismissed as manifestly unfounded in law.

3.	Mr Jargeac and the other eight officials or former officials whose names appear in the annex shall bear their own costs and shall pay the costs incurred by the European Commission.

(1) OJ C 347, 26.11.2011, p. 47.

31.8.2013

Official Journal of the European Union

C 252/48

Order of the Civil Service Tribunal (First Chamber) of 18 June 2013 — Marcuccio v Commission

(Case F-100/11) (1)

(Civil service - Officials - Remuneration - Daily allowance - Conditions for granting - Actual establishment in the place of employment - Action manifestly lacking any foundation in law - Legal costs - Article 94 of the Rules of Procedure)

(2013/C 252/86)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser and J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s decision refusing to grant to the applicant the daily allowances linked to the decision relating to transfer him from the delegation in Angola to headquarters in Brussels.

Operative part of the order

1.	The action is dismissed as manifestly unfounded.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

3.	Mr Marcuccio is ordered to pay to the Civil Service Tribunal of the European Union the sum of EUR 2 000.

(1) OJ C 25, 28.1.2012, p. 67.

31.8.2013

Official Journal of the European Union

C 252/49

Order of the Civil Service Tribunal (Third Chamber) of 30 May 2013 — Marcuccio v Commission

(Case F-102/11) (1)

(Civil service - Article 34(1) and (6) of the Rules of Procedure - Application lodged by fax within the time-limit for bringing proceedings - Handwritten signature on the fax different from that on the original application received by post - Action lodged out of time - Manifestly inadmissible)

(2013/C 252/87)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser, J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s implied decision refusing to pay to the applicant annual travelling expenses from the place of his employment to his place of origin for the period 2005 to 2010.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 126, 28.4.2012, p. 27.

31.8.2013

Official Journal of the European Union

C 252/49

Order of the Civil Service Tribunal (Single Judge) of 18 June 2013 — Rodrigues Regalo Corrêa v Parliament

(Case F-114/11) (1)

(Civil Service - Remuneration - Family allowances - Education allowance - Conditions for grant - Deduction of an allowance of the same type received from another source - Action manifestly unfounded)

(2013/C 252/88)

Language of the case: French

Parties

Applicant: João Manuel Rodrigues Regalo Corrêa (Kehlen, Luxembourg) (represented by: A. Salerno, lawyer)

Defendant: European Parliament (represented by: M. Ecker and V. Montebello-Bemogeot, acting as Agents)

Re:

Civil Service — Action for annulment of the decision of the Parliament to consider certain financial aid from a Member State to students in higher education to be allowances of the same nature as family allowances and to deduct that financial aid from the education allowance granted to the applicant and annulment of the decision to seek repayment of sums unduly paid.

Operative part of the order

1.	The action brought by Mr Rodrigues Regalo Corrêa is dismissed as manifestly unfounded in law.

2.	Mr Rodrigues Regalo Corrêa shall bear his own costs and shall pay the costs incurred by the European Parliament.

(1) OJ C 6, 7.1.2012, p. 28.

31.8.2013

Official Journal of the European Union

C 252/49

Order of the Civil Service Tribunal (Single judge) of 4 June 2013 — Marcuccio v Commission

(Case F-119/11) (1)

(Civil service - Article 34(1) of the Rules of Procedure - Application lodged by fax within the time-limit for bringing proceedings and signed by means of a seal or other means of reproducing the lawyer’s signature - Action lodged out of time)

(2013/C 252/89)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser and J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s implied decision rejecting the applicant’s claim for, first, compensation for the damage purportedly sustained as a result of the fact that agents of the Commission entered his official lodgings in Luanda on 14, 16 and 19 March 2002 and, second, communication to him of the copies of the photographs taken on that occasion and the destruction of all documentation relating to that event.

Operative part of the order

1.	The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 25, 28.1.2012, p. 71.

31.8.2013

Official Journal of the European Union

C 252/50

Order of the Civil Service Tribunal (Third Chamber) of 30 May 2013 — Marcuccio v Commission

(Case F-141/11) (1)

(2013/C 252/90)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser, J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s implied decision refusing the applicant’s claim for payment of arrears if remuneration owing for the period from September to December 2010 and January 2011.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 65, 3.3.2012, p. 25.

31.8.2013

Official Journal of the European Union

C 252/50

Order of the Civil Service Tribunal (Single judge) of 18 June 2013 — Marcuccio v Commission

(Case F-143/11) (1)

(Civil service - Rejection by the appointing authority of a claim for reimbursement of the costs incurred in proceedings - Action for annulment having the same purpose as an application for taxation of costs - Manifestly inadmissible)

(2013/C 252/91)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser and J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s implied decision not to reimburse a quarter of the costs incurred by the applicant in Case F-81/09 Marcuccio v Commission, which it was ordered to pay by judgment of 15 February 2011.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 65, 3.3.2012, p. 26.

31.8.2013

Official Journal of the European Union

C 252/50

Order of the Civil Service Tribunal (Second Chamber) of 24 June 2013 — Mateo Pérez v Commission

(Case F-144/11) (1)

(Civil Service - General competition - Application for annulment of a corrigendum to a notice of competition - Corrigendum not providing for conditions excluding the applicant - No act having adverse effects - Non-admission to selection tests - Admissibility - Time-limits for bringing actions - Lateness - Manifest inadmissibility)

(2013/C 252/92)

Language of the case: Spanish

Parties

Applicant: Carlos Mateo Pérez (Alicante, Spain) (represented by: I. Ruiz García, lawyer)

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

Re:

Application for annulment of the decision not to admit the applicant to the selection tests following publication of a corrigendum to the notice of competition annulling the eliminatory mark for situational judgment test (d).

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	The European Commission shall bear its own costs and the costs of Mr Mateo Pérez arising as from 14 March 2012, the date on which the defence was lodged.

3.	Mr Mateo Pérez shall bear his own costs arising before 14 March 2012.

(1) OJ C 65, 3.3.2012, p. 27.

31.8.2013

Official Journal of the European Union

C 252/51

Order of the Civil Service Tribunal (First Chamber) of 25 June 2013 — Marcuccio v Commission

(Case F-28/12) (1)

(Civil service - Request to remove a sentence from a medical report - Accident or occupational disease - Implied rejection of the request)

(2013/C 252/93)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, Agents, and A. Dal Ferro, lawyer)

Re:

Application to annul the implied decision refusing the applicant’s request to remove a sentence from the medical report of 28 February 2008, to send a new report thus amended to the doctor chosen by the applicant and also in general remove from the file on the applicant’s work-related injury any information relating the claim, which the applicant maintains is incorrect, that the powder with which the applicant came into contact was ultimately shown to be the white dust of a copy of a newspaper to which the applicant subscribed.

Operative part of the order

1.	The action is dismissed as manifestly unfounded.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

3.	Mr Marcuccio is ordered to pay to the Civil Service Tribunal of the European Union the sum of EUR 2 000.

(1) OJ C 174, 16.6.2012, p. 31.

31.8.2013

Official Journal of the European Union

C 252/51

Order of the Civil Service Tribunal (Third Chamber) of 8 May 2013 — FK (*1) v Commission

(Case F-87/12) (1)

(Civil Service - Temporary staff - Renewal of contract - Annulment in part - Review)

(2013/C 252/94)

Language of the case: French

Parties

Applicant: FK (*1) (represented by: S. Orlandi, J.-N. Louis, É. Marchal, A. Coolen and D. Abreu Caldas, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Application for annulment of the Commission’s decision to limit the extension period of the applicant’s contract.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	FK (*1) shall bear his own costs and shall pay the costs incurred by the European Commission.

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

(1) OJ C 319, 20.10.2012, p. 19.

31.8.2013

Official Journal of the European Union

C 252/52

Order of the Civil Service Tribunal (Single judge) of 25 June 2013 — Marcuccio v Commission

(Case F-115/12) (1)

(Civil service - Officials - Action for damages - Availability of a parallel remedy - Manifestly inadmissible)

(2013/C 252/96)

Language of the case: Italian

Parties

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

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

Re:

Application for annulment of the implied decision rejecting the claim for compensation for the harm purportedly suffered by the applicant as a result of the Commission’s sending a letter concerning the recovery of the sum of EUR 4 875 relating to the costs which the General Court ordered the applicant to pay in Case T-241/03.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

(1) OJ C 26, 26.1.2013, p. 71.

		ISSN 1977-091X doi:10.3000/1977091X.C_2013.252.eng
Official Journal of the European Union		C 252

English edition	Information and Notices	Volume 56 31 August 2013

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2013/C 252/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European Union OJ C 245, 24.8.2013	1
	Court of Justice
2013/C 252/02	Taking of the oath by the new Member of the Court of Justice	2
2013/C 252/03	Decisions adopted by the Court of Justice at its General Meeting on 9 July 2013	2
2013/C 252/04	Lists for the purposes of determining the composition of the formations of the Court	2
	General Court
2013/C 252/05	Taking of the oath by the new Member of the General Court	4