ISSN 1977-091X

doi:10.3000/1977091X.C_2013.260.eng

Official Journal

of the European Union

C 260
European flag  

English edition

Information and Notices

Volume 56
7 September 2013

Notice No

Contents

page

 

IV   Notices

 

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

 

Court of Justice of the European Union

2013/C 260/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 252, 31.8.2013

1

 

V   Announcements

 

COURT PROCEEDINGS

 

Court of Justice

2013/C 260/02

Joined Cases C-584/10 P, C-593/10 P and C-595/10 P: Judgment of the Court (Grand Chamber) of 18 July 2013 — European Commission (C-584/10 P), Council of the European Union (C-593/10 P), United Kingdom of Great Britain and Northern Ireland (C-595/10 P) v Yassin Abdullah Kadi, French Republic (Appeal — Common Foreign and Security Policy (CFSP) — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Regulation (EC) No 881/2002 — Freezing of funds and economic resources of a person included in a list drawn up by a body of the United Nations — Listing of that person’s name in Annex I to Regulation (EC) No 881/2002 — Action for annulment — Fundamental rights — Rights of the defence — Principle of effective judicial protection — Principle of proportionality — Right to respect for property — Obligation to state reasons)

2

2013/C 260/03

Case C-201/11 P: Judgment of the Court (Third Chamber) of 18 July 2013 — Union des associations européennes de football (UEFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland (Appeals — Television broadcasting — Directive 89/552/EEC — Article 3a — Measures taken by the United Kingdom concerning events of major importance for the society of that Member State — European Football Championship — Decision declaring the measures compatible with European Union law — Statement of reasons — Articles 49 EC and 86 EC — Right to property)

3

2013/C 260/04

Case C-204/11 P: Judgment of the Court (Third Chamber) of 18 July 2013 — Fédération internationale de football association (FIFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland (Appeals — Television broadcasting — Directive 89/552/EEC — Article 3a — Measures taken by the Kingdom of Belgium concerning events of major importance for the society of that Member State — Football World Cup — Decision declaring the measures compatible with European Union law — Statement of reasons — Articles 43 EC and 49 EC — Right to property)

3

2013/C 260/05

Case C-205/11 P: Judgment of the Court (Third Chamber) of 18 July 2013 — Fédération internationale de football association (FIFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland (Appeals — Television broadcasting — Directive 89/552/EEC — Article 3a — Measures taken by the United Kingdom concerning events of major importance for the society of that Member State — Football World Cup — Decision declaring the measures compatible with European Union law — Statement of reasons — Articles 43 EC, 49 EC and 86 EC — Right to property)

4

2013/C 260/06

Joined Cases C-210/11 and C-211/11: Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the Cour de cassation — Belgium) — État belge v Medicom SPRL (C-210/11), Maison Patrice Alard SPRL (C-211/11) (Requests for a preliminary ruling — Sixth VAT Directive — Article 6(2), first paragraph, point (a) and Article 13(B)(b) — Right to deduction — Capital goods belonging to legal persons made partly available to their managers for private use — No rent payable in money, but taking into account of a benefit in kind for income tax purposes)

4

2013/C 260/07

Case C-261/11: Judgment of the Court (Third Chamber) of 18 July 2013 — European Commission v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Freedom of establishment — Article 49 TFEU — Article 31 of the EEA Agreement — Restrictions — Tax legislation — Transfer of assets to another Member State — Immediate taxation of unrealised capital gains)

5

2013/C 260/08

Case C-313/11: Judgment of the Court (Fifth Chamber) of 18 July 2013 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Regulation (EC) No 1829/2003 — Animal feed — Genetically modified feed — Production, placing on the market or use — National prohibition not yet in force)

5

2013/C 260/09

Case C-414/11: Judgment of the Court (Grand Chamber) of 18 July 2013 (request for a preliminary ruling from the Polimeles Protodikio Athinon — Greece) — Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon (Common commercial policy — Article 207 TFEU — Commercial aspects of intellectual property — Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) — Article 27 — Patentable subject-matter — Article 70 — Protection of existing subject-matter)

6

2013/C 260/10

Case C-426/11: Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Mark Alemo-Herron and Others v Parkwood Leisure Ltd (Transfer of undertakings — Directive 2001/23/EC — Safeguarding of employees’ rights — Collective agreement applicable to the transferor and to the employee at the time of the transfer)

6

2013/C 260/11

Case C-499/11 P: Judgment of the Court (First Chamber) of 18 July 2013 — The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe GmbH v European Commission (Appeal — Agreements, decisions and concerted practices — Market in butadiene rubber and emulsion styrene butadiene rubber — Fixing price targets, sharing clients through non-aggression agreements and exchanging commercial information — Imputability of the offending conduct — Discretion enjoyed by the Commission — Multiplier for deterrence — Equal treatment)

7

2013/C 260/12

Case C-501/11 P: Judgment of the Court (Fifth Chamber) of 18 July 2013 — Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV, Schindler Deutschland Holding GmbH v European Commission, Council of the European Union (Appeal — Agreements, decisions and concerted practices — Market for the installation and maintenance of elevators and escalators — Liability of the parent company for infringements of the law on cartels committed by its subsidiary — Holding company — Internal compliance programme — Fundamental rights — Principles of the rule of law in the context of determination of the fines imposed — Separation of powers, and principles of legality, of non-retroactivity, of the protection of legitimate expectations and of fault — Regulation (EC) No 1/2003 — Article 23(2) — Validity — Legality of the 1998 Commission guidelines)

7

2013/C 260/13

Case C-515/11: Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Deutsche Umwelthilfe eV v Bundesrepublik Deutschland (Public access to environmental information — Directive 2003/4/EC — Power of the Member States to exclude bodies acting in a legislative capacity from the definition of public authority under that directive — Limits)

8

2013/C 260/14

Case C-520/11: Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Decision 2009/726/EC — Non-compliance — Imports of milk and milk products — Origin — At-risk holdings in terms of cases of spongiform encephalopathies — National prohibitions)

8

2013/C 260/15

Joined Cases C-523/11 and C-585/11: Judgment of the Court (Third Chamber) of 18 July 2013 (requests for a preliminary ruling from the Verwaltungsgericht Hannover, Verwaltungsgericht Karlsruhe — Germany) — Laurence Prinz v Region Hannover (C-523/11), and Philipp Seeberger v Studentenwerk Heidelberg (C-585/11) (Citizenship of the Union — Articles 20 TFEU and 21 TFEU — Right of freedom of movement and residence — Education or training grant awarded to nationals of a Member State in order to pursue their studies in another Member State — Requirement of residence in the home Member State for at least three years prior to the commencement of studies)

9

2013/C 260/16

Case C-621/11 P: Judgment of the Court (Fourth Chamber) of 18 July 2013 — New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K.-Vallis A. & Co. OE (Appeal — Application for registration of the Community word mark FISHBONE — Opposition proceedings — Earlier national figurative mark FISHBONE BEACHWEAR — Genuine use of the earlier mark — Taking into account additional evidence not submitted within the time-limit set — Regulation (EC) No 207/2009 — Articles 42(2) and (3) and Article 76(2) — Regulation (EC) No 2868/95 — Rule 22(2))

9

2013/C 260/17

Case C-6/12: Judgment of the Court (Fifth Chamber) of 18 July 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — P Oy (State aid — Articles 107 and 108 TFEU — Condition of selectivity — Regulation (EC) No 659/1999 — Article 1(b)(i) — Existing aid — National legislation concerning corporate income tax — Deductibility of losses sustained — Non-deductibility in the case of change of ownership — Authorisation of derogations — Degree of latitude of the tax authorities)

10

2013/C 260/18

Case C-26/12: Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Gerechtshof te Leeuwarden — Netherlands) — Fiscale eenheid PPG Holdings BV cs te Hoogezand v Inspecteur van de Belastingdienst/Noord/kantoor Groningen (Value added tax — Sixth Directive 77/388/EEC — Articles 17 and 13B(d)(6) — Exemptions — Deduction of input tax — Pension fund — Concept of management of special investment funds)

10

2013/C 260/19

Case C-78/12: Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Evita-K EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Directive 2006/112/EC — Common system of value added tax — Supply of goods — Concept — Right to deduct — Refusal — Actual performance of a taxable transaction — Regulation (EC) No 1760/2000 — System for the identification and registration of bovine animals — Ear tags)

11

2013/C 260/20

Case C-99/12: Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the tribunal de première instance de Bruxelles — Belgium) — Eurofit SA v Bureau d’intervention et de restitution belge (BIRB) (Request for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EEC) No 3665/87 — Export refunds — Misappropriation of goods intended for export — Exporter’s obligation to reimburse refunds — Failure of the competent authorities to provide information regarding the reliability of a contractor who is suspected of fraud — Force majeure — Absence)

12

2013/C 260/21

Case C-124/12: Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Plovdiv — Bulgaria) — AES-3C Maritza East 1 EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Value added tax — Directive 2006/112/EC — Articles 168(a) and 176 — Right to deduction — Expenditure related to the purchase of goods and the supply of services for staff — Staff supplied to the taxable persons claiming the right to deduction but employed by another taxable person)

12

2013/C 260/22

Case C-136/12: Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato and Autorità garante della concorrenza e del mercato v Consiglio nazionale dei geologi (Third paragraph of Article 267 TFEU — Scope of the obligation on courts of final instance to make a reference for a preliminary ruling — Article 101 TFEU — Code of conduct of a professional association prohibiting the application of fee scales which are not commensurate with the dignity of the profession)

13

2013/C 260/23

Case C-147/12: Judgment of the Court (Fifth Chamber) of 18 July 2013 (request for a preliminary ruling from the Hovrätten för Nedre Norrland — Sweden) — ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments BV (Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Court with jurisdiction — Special jurisdiction in matters relating to contract and matters relating to tort, delict and quasi-delict)

14

2013/C 260/24

Case C-211/12: Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Corte di Appello di Roma — Italy) — Martini SpA v Ministero delle Attività Produttive (Agriculture — System of import licences — Regulation (EC) No 1291/2000 — Article 35(4)(c) — Securities lodged at the time of application for the issue of the licences — Import licence — Late submission of proof of its use — Penalty — Calculation of the amount forfeited — Regulation (EC) No 958/2003 — Tariff quotas)

14

2013/C 260/25

Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12: Judgment of the Court (Eighth Chamber) of 18 July 2013 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio — Italy) — Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12) v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12) (Electronic communications networks and services — Directive 2002/20/EC — Article 12 — Administrative charges imposed on undertakings in the sector concerned — National legislation making operators of electronic communications subject to the payment of a charge intended to cover the operating costs of the national regulatory authorities)

15

2013/C 260/26

Case C-234/12: Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni (Television broadcasting — Directive 2010/13/EU — Articles 4(1) and 23(1) — Advertising spots — National rule laying down a maximum percentage of broadcasting time which can be dedicated to advertising for pay-TV broadcasters which is lower than that laid down for free-to-air TV broadcasters — Equal treatment — Freedom to provide services)

16

2013/C 260/27

Case C-252/12: Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd (Trade marks — Regulation (EC) No 207/2009 — Article 9(1)(b) and (c) — Article 15(1) — Article 51(1)(a) — Grounds for revocation — Definition of genuine use — Trade mark used together with another trade mark or as part of a compound trade mark — Colour or combination of colours in which a trade mark is used — Reputation)

16

2013/C 260/28

Case C-265/12: Judgment of the Court (First Chamber) of 18 July 2013 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Citroën Belux NV v Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF) (Article 56 TFEU — Freedom to provide services — Directive 2005/29/EC — Unfair commercial practices — Consumer protection — Combined offers involving at least one financial service — Prohibition — Exceptions)

17

2013/C 260/29

Case C-299/12: Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Green Swan Pharmaceuticals CR, a.s. v Státní zemědělská a potravinářská inspekce, ústřední inspektorát (Consumer protection — Regulation (EC) No 1924/2006 — Nutrition and health claims made on foods — Article 2(2)(6) — Reduction of disease risk claim — Article 28(2) — Products bearing trade marks or brand names — Transitional measures)

17

2013/C 260/30

Case C-315/12: Judgment of the Court (Eighth Chamber) of 18 July 2013 (request for a preliminary ruling from the Højesteret — Denmark) — Metro Cash & Carry Danmark ApS v Skatteministeriet (Excise duty — Directive 92/12/EEC — Articles 7 to 9 — Directive 2008/118/EC — Articles 32 to 34 — Intra-Community movement of products subject to excise — Regulation (EEC) No 3649/92 — Articles 1 and 4 — Simplified accompanying document — Copy 1 — Cash & carry business — Products released for consumption in a Member State and held for commercial purposes in another Member State or products acquired by private individuals for their own use and transported by them — Spirits — No obligation on the supplier to check)

18

2013/C 260/31

Case C-412/12: Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v Republic of Cyprus (Failure of a Member State to fulfil obligations — Directive 1999/31/EC — Landfill of waste — Operation in the absence of a conditioning plan for the site — Obligation to close down the site)

19

2013/C 260/32

Opinion 2/13: Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU

19

2013/C 260/33

Case C-250/13: Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 7 May 2013 — Birgit Wagener v Bundesagentur für Arbeit — Familienkasse Villingen-Schwenningen

19

2013/C 260/34

Case C-259/13: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 13 May 2013 — Elena Recinto-Pfingsten v Swiss International Air Lines AG

20

2013/C 260/35

Case C-282/13: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 24 May 2013 — T-Mobile Austria GmbH v Telekom-Control-Kommission

21

2013/C 260/36

Case C-297/13: Request for a preliminary ruling from the Finanzgericht München (Germany) lodged on 29 May 2013 — Data I/O GmbH v Hauptzollamt München

21

2013/C 260/37

Case C-310/13: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 June 2013 — Novo Nordisk Pharma GmbH v Corinna Silber

21

2013/C 260/38

Case C-319/13: Request for a preliminary ruling from the Thüringer Oberlandesgericht (Germany) lodged on 11 June 2013 — Udo Rätzke v S+K Handels GmbH

22

2013/C 260/39

Case C-324/13 P: Appeal brought on 14 June 2013 by Fercal — Consultadoria e Serviços, Lda against the judgment delivered on 10 April 2013 by the General Court (Fifth Chamber) in Case T-360/11 Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (Patrizia Rocha)

22

2013/C 260/40

Case C-331/13: Request for a preliminary ruling from Tribunalul Sibiu (Romania) lodged on 18 June 2013 — Ilie Nicolae Nicula v Administrația Finanțelor Publice a Municipiului Sibiu, Administrația Fondului pentru Mediu

23

2013/C 260/41

Case C-334/13: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 19 June 2013 — Nordex Food A/S v Hauptzollamt Hamburg-Jonas

23

2013/C 260/42

Case C-335/13: Reference for a preliminary ruling from Scottish Land Court (United Kingdom) made on 18 June 2013 — Robin John Feakins v The Scottish Ministers

24

2013/C 260/43

Case C-336/13 P: Appeal brought on 19 June 2013 by the European Commission against the judgment delivered on 10 April 2013 in Case T-671/11 IPK International — World Tourism Marketing Consultants GmbH v European Commission

25

2013/C 260/44

Case C-341/13: Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 24 June 2013 — Cruz & Companhia Lda v Instituto de Financiamento da Agricultura e Pescas, IP (IFAP)

25

2013/C 260/45

Case C-343/13: Request for a preliminary ruling from the Tribunal do Trabalho de Leiria (Portugal) lodged on 24 June 2013 — Modelo Continente Hipermercados SA v Autoridade para as Condições do Trabalho — Centro Local do Lis (ACT)

26

2013/C 260/46

Case C-344/13: Request for a preliminary ruling from the Commissione tributaria provinciale di Roma (Italia) lodged on 24 June 2013 — Cristiano Blanco v Agenzia delle Entrate

26

2013/C 260/47

Case C-345/13: Reference for a preliminary ruling from Supreme Court (Ireland) made on 24 June 2013 — Karen Millen Fashions Ltd v Dunnes Stores, Dunnes Stores (Limerick) Ltd

26

2013/C 260/48

Case C-351/13: Action brought on 25 June 2013 — European Commission v Hellenic Republic

27

2013/C 260/49

Case C-355/13: Request for a preliminary ruling from the Commissione Tributaria Regionale dell’Umbria (Italy) lodged on 27 June 2013 — Umbra Packaging srl v Agenzia delle Entrate — Direzione Provinciale di Perugia

27

2013/C 260/50

Case C-360/13: Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 27 June 2013 — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others

28

2013/C 260/51

Case C-361/13: Action brought on 26 June 2013 — European Commission v Slovak Republic

28

2013/C 260/52

Case C-362/13: Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 June 2013 — Maurizio Fiamingo v Rete Ferroviaria Italiana SpA

29

2013/C 260/53

Case C-363/13: Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 June 2013 — Leonardo Zappalà v Rete Ferroviaria Italiana SpA

29

2013/C 260/54

Case C-364/13: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 June 2013 — International Stem Cell Corporation v Comptroller General of Patents

30

2013/C 260/55

Case C-366/13: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 1 July 2013 — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Commerzbank AG

30

2013/C 260/56

Case C-367/13: Request for a preliminary ruling from the Commissione tributaria provinciale di Roma (Italy) lodged on 1 July 2013 — Pier Paolo Fabretti v Agenzia delle Entrate

30

2013/C 260/57

Case C-369/13: Request for a preliminary ruling from the Rechtbank Oost-Brabant 's-Hertogenbosch (Netherlands) lodged on 1 July 2013 — Criminal proceedings against N.F. Gielen and Others

31

2013/C 260/58

Case C-378/13: Action brought on 2 July 2013 — European Commission v Hellenic Republic

31

2013/C 260/59

Case C-379/13 P: Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-51/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

32

2013/C 260/60

Case C-380/13 P: Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-52/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

33

2013/C 260/61

Case C-381/13 P: Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-53/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

33

2013/C 260/62

Case C-383/13: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 5 July 2013 — M.G., N.R.; other party: Staatssecretaris van Veiligheid en Justitie

34

2013/C 260/63

Case C-386/13: Action brought on 5 July 2013 — European Commission v Republic of Cyprus

34

2013/C 260/64

Case C-391/13 P: Appeal brought on 8 July 2013 by the Hellenic Republic against the judgment of the General Court delivered on 17 May 2013 in Case T-294/11 Greece v Commission

35

2013/C 260/65

Case C-392/13: Request for a preliminary ruling from the Juzgado de lo Social No 33, Barcelona (Spain) lodged on 9 July 2013 — Andrés Rabal Cañas v Nexea Gestión Documental, S.A., Fondo de Garantía Salarial

36

2013/C 260/66

Case C-394/13: Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 11 July 2013 — Ministerstvo práce a sociálních věcí v K. B.

36

2013/C 260/67

Case C-396/13: Request for a preliminary ruling from the Satakunnan käräjäoikeus (Finland) lodged on 12 July 2013 — Sähköalojen ammattiliitto ry v Elektrobudowa Spółka Akcyjna

37

2013/C 260/68

Case C-405/13: Action brought on 17 July 2013 — European Commission v Romania

38

2013/C 260/69

Case C-406/13: Action brought on 17 July 2013 — European Commission v Romania

39

2013/C 260/70

Case C-411/13 P: Appeal brought on 19 July 2013 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 14 May 2013 in Case T-249/11 Sanco v OHIM — Marsalman (representation of a chicken)

39

2013/C 260/71

Case C-429/13 P: Appeal brought on 26 July 2013 by the Kingdom of Spain against the judgment of the General Court (First Chamber) delivered on 29 May 2013 in Case T-384/10 Kingdom of Spain v European Commission

40

 

General Court

2013/C 260/72

Case T-589/10: Order of the General Court of 4 July 2013 — Just Music Fernsehbetriebs GmbH v OHIM — France Télécom (Jukebox) (Community trade mark — Opposition proceedings — Revocation of the earlier Community mark — No need to adjudicate)

41

2013/C 260/73

Case T-414/11: Order of the General Court of 8 July 2013 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

41

2013/C 260/74

Case T-309/12 R: Order of the President of the General Court of 5 July 2013 — Zweckverband Tierkörperbeseitigung v Commission (Interim measures — Payment of contributions to an association governed by public law — State aid — Obligation to recover — Application to suspend enforcement — Urgency)

42

2013/C 260/75

Case T-336/13 R: Order of the President of the General Court of 17 July 2013 — Borghezio v Parliament (Interim relief — European Parliament — Measure excluding a Member of Parliament from his political group — Application to suspend enforcement — Manifest inadmissibility of the main action — Inadmissibility of the application — Lack of urgency)

42

2013/C 260/76

Case T-341/13: Action brought on 27 June 2013 — Groupe Léa Nature/OHIM — Debonaire Trading (SO'BiO ētic)

42

2013/C 260/77

Case T-344/13: Action brought on 28 June 2013 — Out of the blue/OHIM — Dubois et al. (FUNNY BANDS)

43

2013/C 260/78

Case T-354/13: Action brought on 4 July 2013 — Zentralverband des Deutschen Bäckerhandwerks v Commission

43

2013/C 260/79

Case T-355/13: Action brought on 4 July 2013 — easyJet Airline v Commission

44

2013/C 260/80

Case T-357/13: Action brought on 5 July 2013 — European Space Imaging v Commission

44

2013/C 260/81

Case T-360/13: Action brought on 8 July 2013 — VECCO and Others v Commission

45

2013/C 260/82

Case T-361/13: Action brought on 9 July 2013 — Menelaus/OHIM — Garcia Mahiques (VIGOR)

46

2013/C 260/83

Case T-364/13: Action brought on 12 July 2013 — Mocek et Wenta/OHIM — Lacoste (KAJMAN)

46

2013/C 260/84

Case T-367/13: Action brought on 15 July 2013 — Republic of Poland v European Commission

47

2013/C 260/85

Case T-368/13: Action brought on 16 July 2013 — Boehringer Ingelheim International/OHIM — Lehning entreprise (ANGIPAX)

48

2013/C 260/86

Case T-376/13: Action brought on 18 July 2013 — Versorgungswerk der Zahnärztekammer Schleswig Holstein v ECB

48

2013/C 260/87

Case T-377/13: Action brought on 17 July 2013 — ultra air GmbH v OHIM — Donaldson Filtration Deutschland (ultra.air ultrafilter)

49

2013/C 260/88

Case T-378/13: Action brought on 23 July 2013 — Apple and Pear Australia and Star Fruits Diffusion v OHIM — Carolus C. (English pink)

49

2013/C 260/89

Case T-379/13: Action brought on 22 July 2013 — Innovation First/OHIM (NANO)

50

2013/C 260/90

Case T-384/13: Action brought on 26 July 2013 — Intermark/OHIM — Coca-Cola (RIENERGY Cola)

50

2013/C 260/91

Case T-352/08: Order of the General Court of 12 July 2013 — Pannon Hőerőmű v Commission

51

2013/C 260/92

Joined Cases T-148/10 and T-149/10: Order of the General Court of 5 July 2013 — SK Hynix v Commission

51

EN

 

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

7.9.2013   

EN

Official Journal of the European Union

C 260/1

2013/C 260/01

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

OJ C 252, 31.8.2013

Past publications

OJ C 245, 24.8.2013

OJ C 233, 10.8.2013

OJ C 226, 3.8.2013

OJ C 215, 27.7.2013

OJ C 207, 20.7.2013

OJ C 189, 29.6.2013

These texts are available on:

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

V Announcements

COURT PROCEEDINGS

Court of Justice

7.9.2013   

EN

Official Journal of the European Union

C 260/2

Judgment of the Court (Grand Chamber) of 18 July 2013 — European Commission (C-584/10 P), Council of the European Union (C-593/10 P), United Kingdom of Great Britain and Northern Ireland (C-595/10 P) v Yassin Abdullah Kadi, French Republic

(Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) (1)

(Appeal - Common Foreign and Security Policy (CFSP) - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Regulation (EC) No 881/2002 - Freezing of funds and economic resources of a person included in a list drawn up by a body of the United Nations - Listing of that person’s name in Annex I to Regulation (EC) No 881/2002 - Action for annulment - Fundamental rights - Rights of the defence - Principle of effective judicial protection - Principle of proportionality - Right to respect for property - Obligation to state reasons)

2013/C 260/02

Language of the case: English

Parties

Appellants: European Commission (C-584/10 P) (represented initially by P. Hetsch, S. Boelaert, E. Paasivirta and M. Konstantinidis, and subsequently by L. Gussetti, S. Boelaert, E. Paasivirta and M. Konstantinidis, Agents), Council of the European Union (C-593/10 P) (represented by M. Bishop, E. Finnegan and R. Szostak, Agents), United Kingdom of Great Britain and Northern Ireland (C-595/10 P) (represented initially by E. Jenkinson and subsequently by S. Behzadi-Spencer, acting as Agents, and by J. Wallace QC, D. Beard QC, and M. Wood, Barrister)

Other parties to the proceedings: Yassin Abdullah Kadi (represented by: D. Vaughan QC, V. Lowe QC, J. Crawford SC, M. Lester and P. Eeckhout, Barristers, G. Martin, Solicitor, and by C. Murphy), French Republic (represented by: E. Belliard, G. de Bergues, D. Colas, A. Adam and E. Ranaivoson, Agents)

Interveners in the appeals (Cases C-584/10 P and C-595/10 P) in support of the European Commission and the United Kingdom of Great Britain and Northern Ireland: Republic of Bulgaria (represented by: B. Zaimov, T. Ivanov and E. Petranova, Agents), Italian Republic (represented by: G. Palmieri, Agent, and by M. Fiorilli, avvocato dello Stato), Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent), Hungary (represented by: M. Fehér, K. Szíjjártó and K. Molnár, Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. Bulterman, Agents), Slovak Republic (represented by: B. Ricziová, Agent), Republic of Finland (represented by: H. Leppo, Agent)

Interveners in the appeal (Case C-593/10 P) in support of the Council of the European Union: Republic of Bulgaria (represented by: B. Zaimov, T. Ivanov and E. Petranova, Agents), Czech Republic (represented by: K. Najmanová, E. Ruffer, M. Smolek and D. Hadroušek, Agents), Kingdom of Denmark (represented by: L. Volck Madsen, Agent), Ireland (represented initially by D. O’Hagan and subsequently by E. Creedon, Agents, and by N. Travers BL and P. Benson, Solicitor), Kingdom of Spain (represented by: M. Muñoz Pérez and N. Díaz Abad, Agents), Italian Republic (represented by: G. Palmieri, Agent, and by M. Fiorilli, avvocato dello Stato), Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent), Hungary (represented by: M. Fehér, K. Szíjjártó and K. Molnár, Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. Bulterman, Agents), Republic of Austria, (represented by: C. Pesendorfer, Agent), Slovak Republic (represented by: B. Ricziová, Agent), Republic of Finland (represented by: H. Leppo, Agent)

Re:

Appeals brought against the judgment of the General Court (Seventh Chamber) of 30 September 2010 in Case T-85/09 Kadi v Commission, by which the General Court upheld an application for partial annulment of Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban (OJ 2008 L 322, p. 25), in so far as the applicant’s name is included on the list of persons, groups and entities to which those provisions apply.

Operative part of the judgment

The Court:

1.

Dismisses the appeals;

2.

Orders the European Commission, the Council of the European Union and the United Kingdom of Great Britain and Northern Ireland to pay the costs;

3.

Orders the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, Hungary, the Kingdom of the Netherlands, the Republic of Austria, the Slovak Republic and the Republic of Finland to bear their own costs.

(1)  OJ C 72, 5.3.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/3

Judgment of the Court (Third Chamber) of 18 July 2013 — Union des associations européennes de football (UEFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland

(Case C-201/11 P) (1)

(Appeals - Television broadcasting - Directive 89/552/EEC - Article 3a - Measures taken by the United Kingdom concerning events of major importance for the society of that Member State - European Football Championship - Decision declaring the measures compatible with European Union law - Statement of reasons - Articles 49 EC and 86 EC - Right to property)

2013/C 260/03

Language of the case: English

Parties

Appellant: Union des associations européennes de football (UEFA) (represented by: D. Anderson QC, and D. Piccinin, Barrister, instructed by B. Keane and T. McQuail, Solicitors)

Other parties to the proceedings: European Commission (represented by: E. Montaguti, N. Yerrell and A. Dawes, acting as Agents, and M. Gray, Barrister), Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland, (represented by: L. Seeboruth and J. Beeko, acting as Agents, and T. de la Mare, Barrister)

Re:

Appeal brought against the judgment of the General Court (Seventh Chamber) of 17 February 2011 in Case T-55/08 UEFA v Commission dismissing an action for annulment of Commission Decision 2007/730/EC of 16 October 2007 declaring compatible with Community law measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12)

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders the Union des associations européennes de football (UEFA) to pay the costs.

(1)  OJ C 204, 9.7.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/3

Judgment of the Court (Third Chamber) of 18 July 2013 — Fédération internationale de football association (FIFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland

(Case C-204/11 P) (1)

(Appeals - Television broadcasting - Directive 89/552/EEC - Article 3a - Measures taken by the Kingdom of Belgium concerning events of major importance for the society of that Member State - Football World Cup - Decision declaring the measures compatible with European Union law - Statement of reasons - Articles 43 EC and 49 EC - Right to property)

2013/C 260/04

Language of the case: English

Parties

Appellant: Fédération internationale de football association (FIFA) (represented by: A. Barav and D. Reymond, avocats)

Other parties to the proceedings: European Commission (represented by: E. Montaguti and N. Yerrell, acting as Agents, and M. Gray, Barrister), Kingdom of Belgium (represented by: C. Pochet and J.-C. Halleux, acting as Agents, and A. Joachimowicz and J. Stuyck, advocaten), United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski and J. Beeko, and Agents, assisted by T. de la Mare QC)

Re:

Appeal brought against the judgment of the General Court (Seventh Chamber) of 17 February 2011 in Case T-385/07 Fédération Internationale de Football Association (FIFA) v Commission, dismissing an action seeking the annulment of Commission Decision 2007/479/EC of 25 June 2007 declaring compatible with Community law measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 180, p. 24)

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders the Fédération internationale de football association (FIFA) to pay the costs.

(1)  OJ C 232, 6.8.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/4

Judgment of the Court (Third Chamber) of 18 July 2013 — Fédération internationale de football association (FIFA) v European Commission, Kingdom of Belgium, and United Kingdom of Great Britain and Northern Ireland

(Case C-205/11 P) (1)

(Appeals - Television broadcasting - Directive 89/552/EEC - Article 3a - Measures taken by the United Kingdom concerning events of major importance for the society of that Member State - Football World Cup - Decision declaring the measures compatible with European Union law - Statement of reasons - Articles 43 EC, 49 EC and 86 EC - Right to property)

2013/C 260/05

Language of the case: English

Parties

Appellant: Fédération internationale de football association (FIFA) (represented by: A. Barav and D. Reymond, avocats)

Other parties to the proceedings: European Commission (represented by: E. Montaguti and N. Yerrell, acting as Agents, and M. Gray, Barrister), Kingdom of Belgium (represented by: C. Pochet, J.-C. Halleux, acting as Agents, and A. Joachimowicz and J. Stuyck, advocaten), and United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski and J. Beeko, acting as Agents, and T. de la Mare QC)

Re:

Appeal brought against the judgment of the General Court (Seventh Chamber) of 17 February 2011 in Case T-68/08 Fédération Internationale de Football Association (FIFA) v Commission dismissing an action for annulment of Commission Decision 2007/730/EC of 16 October 2007 declaring compatible with Community law measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12)

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders the Fédération internationale de football association (FIFA) to pay the costs.

(1)  OJ C 232, 6.8.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/4

Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the Cour de cassation — Belgium) — État belge v Medicom SPRL (C-210/11), Maison Patrice Alard SPRL (C-211/11)

(Joined Cases C-210/11 and C-211/11) (1)

(Requests for a preliminary ruling - Sixth VAT Directive - Article 6(2), first paragraph, point (a) and Article 13(B)(b) - Right to deduction - Capital goods belonging to legal persons made partly available to their managers for private use - No rent payable in money, but taking into account of a benefit in kind for income tax purposes)

2013/C 260/06

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État belge

Defendants: Medicom SPRL (C-210/11), Maison Patrice Alard SPRL (C-211/11)

Re:

Requests for a preliminary ruling — Cour de cassation (Belgium) — Interpretation of Article 6(2), first paragraph, point (a) and Article 13(B)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1) — VAT exemption — Concept of supply of services in relation to immovable property — Use of part of immovable property forming part of the assets of the business for the private use of managers and their families, without there being any rent to be paid in money, but constituting a benefit in kind — No right to deduction

Operative part of the judgment

1.

Point (a) of the first paragraph of Article 6(2) and Article 13(B)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as precluding the making available of part of immovable property belonging to a legal person to its manager for his private use, without there being provision for the beneficiaries of that arrangement to pay a rent in money by way of consideration for the use of that property, from constituting an exempted letting of immovable property within the meaning of that directive; the fact that the making available of that property is deemed, under the relevant national income tax legislation, to be a benefit in kind stemming from the beneficiaries’ performance of their corporate duties or under their contract of employment is of no import in that regard;

2.

Point (a) of the first paragraph of Article 6(2) and Article 13(B)(b) of the Sixth Directive 77/388, as amended by Directive 95/7, must be interpreted as meaning that, in situations such as those at issue in the main proceedings, the issue whether or not the making available of all or part of the property in its entirety forming part of the assets of the business to managers, administrators or members of that business is directly linked to the operation of the business is of no relevance for the determination of whether that making available comes within the exemption provided for in the latter provision.

(1)  OJ C 211, 16.7.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/5

Judgment of the Court (Third Chamber) of 18 July 2013 — European Commission v Kingdom of Denmark

(Case C-261/11) (1)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Article 49 TFEU - Article 31 of the EEA Agreement - Restrictions - Tax legislation - Transfer of assets to another Member State - Immediate taxation of unrealised capital gains)

2013/C 260/07

Language of the case: Danish

Parties

Applicant: European Commission (represented by: R. Lyal and N. Fenger, acting as Agents.)

Defendant: Kingdom of Denmark (represented by: C. Vang and V. Pasternak Jørgensen, acting as Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: K. Petersen and T. Henze, acting as Agents), Kingdom of Spain (represented by: A. Rubio González, acting as Agent), Kingdom of the Netherlands (represented by: C. Schillemans, C. Wissels and J. Langer, acting as Agents), Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent), Republic of Finland (represented by: M. Pere, acting as Agent), Kingdom of Sweden (represented by: A. Falk and U. Persson, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 TFEU and Article 31 EEA — Tax provisions laying down immediate taxation on exit for companies transferring assets to another Member State but not laying down an equivalent tax on transfers of assets within national territory

Operative part of the judgment

The Court:

1.

Declares that, by adopting and maintaining in force Paragraph 8(4) of the Law on taxation of the income of share companies and other matters (Lov om indkomstbeskatning af aktieselskaber m.v., lovbekendtgørelse nr. 1376, 7 December 2010), concerning the immediate taxation of the income of share companies, and consequently a tax system providing for the immediate taxation of unrealised capital gains relating to a transfer of assets by a company established in Denmark to another Member State of the European Union or to a non-member country party to the Agreement on the European Economic Area of 2 May 1992, the Kingdom of Denmark has failed to fulfil its obligations under Article 49 TFEU and Article 31 of the EEA Agreement;

2.

Orders the Kingdom of Denmark to pay the costs;

3.

Orders the Federal Republic of Germany, the Kingdom of Spain, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

(1)  OJ C 238, 13.8.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/5

Judgment of the Court (Fifth Chamber) of 18 July 2013 — European Commission v Republic of Poland

(Case C-313/11) (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 1829/2003 - Animal feed - Genetically modified feed - Production, placing on the market or use - National prohibition not yet in force)

2013/C 260/08

Language of the case: Polish

Parties

Applicant: European Commission (represented by: D. Bianchi and A. Szmytkowska, acting as Agents)

Defendant: Republic of Poland (represented by: M. Szpunar, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 16(5), 19, 20 and 34 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003 L 268, p. 1) — National legislation prohibiting any production, placing on the market or use of genetically modified feed

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders the European Commission to pay the costs.

(1)  OJ C 252, 27.8.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/6

Judgment of the Court (Grand Chamber) of 18 July 2013 (request for a preliminary ruling from the Polimeles Protodikio Athinon — Greece) — Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

(Case C-414/11) (1)

(Common commercial policy - Article 207 TFEU - Commercial aspects of intellectual property - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) - Article 27 - Patentable subject-matter - Article 70 - Protection of existing subject-matter)

2013/C 260/09

Language of the case: Greek

Referring court

Polimeles Protodikio Athinon

Parties to the main proceedings

Applicants: Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH

Defendants: DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

Re:

Request for a preliminary ruling — Polimeles Protodikio Athinon — Interpretation of Articles 27 and 70 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) annexed to the Agreement establishing the World Trade Organisation (OJ 1994 L 336, p. 214) — Distinction between fields covered by Community law and those within the competence of the Member States — Patents — Chemical and pharmaceutical products

Operative part of the judgment

1.

Article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), falls within the field of the common commercial policy.

2.

Article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights must be interpreted as meaning that the invention of a pharmaceutical product such as the active chemical compound of a medicinal product is, in the absence of a derogation in accordance with Article 27(2) or (3), capable of being the subject-matter of a patent, under the conditions set out in Article 27(1).

3.

A patent obtained following an application claiming the invention both of the process of manufacture of a pharmaceutical product and of the pharmaceutical product as such, but granted solely in relation to the process of manufacture, does not, by reason of the rules set out in Articles 27 and 70 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, have to be regarded from the entry into force of that agreement as covering the invention of that pharmaceutical product.

(1)  OJ C 298, 8.10.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/6

Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Mark Alemo-Herron and Others v Parkwood Leisure Ltd

(Case C-426/11) (1)

(Transfer of undertakings - Directive 2001/23/EC - Safeguarding of employees’ rights - Collective agreement applicable to the transferor and to the employee at the time of the transfer)

2013/C 260/10

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicants: Mark Alemo-Herron, Sandra Tipping, Christopher Anderson, Stacey Aris, Audrey Beckford, Lee Bennett, Delroy Carby, Vishnu Chetty, Deborah Cimitan, Victoria Clifton, Claudette Cummings, David Curtis, Stephen Flin, Patience Ijelekhai, Rosemarie Lee, Roxanne Lee, Vivian Ling, Michelle Nicholas, Lansdail Nugent, Anne O’Connor, Shirley Page, Alan Peel, Mathew Pennington, Laura Steward

Defendant: Parkwood Leisure Ltd

Re:

Request for a preliminary ruling — Supreme Court of the United Kingdom — Alemo-Herron and Others v Parkwood Leisure Ltd — Interpretation of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings businesses (OJ 2001 L 82, p. 16) in the light of the judgment of the Court of Justice of 12 March 2001 in Case C-499/04 Werhof v Freeway Traffic Systems — Extent of the transferee's obligations to comply with conditions relating to salaries under a collective agreement applicable to the transferor and the employee at the time of the transfer

Operative part of the judgment

Article 3 of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer.

(1)  OJ C 311, 22.10.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/7

Judgment of the Court (First Chamber) of 18 July 2013 — The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe GmbH v European Commission

(Case C-499/11 P) (1)

(Appeal - Agreements, decisions and concerted practices - Market in butadiene rubber and emulsion styrene butadiene rubber - Fixing price targets, sharing clients through non-aggression agreements and exchanging commercial information - Imputability of the offending conduct - Discretion enjoyed by the Commission - Multiplier for deterrence - Equal treatment)

2013/C 260/11

Language of the case: English

Parties

Appellants: The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe GmbH (represented by: D. Schroeder and T. Kuhn, Rechtsanwälte, and by T. Graf, advokat)

Other party to the proceedings: European Commission (represented by: M. Kellerbauer and V. Bottka, acting as Agents)

Re:

Appeal against the judgment in Case T-42/07 Dow Chemical and Others v Commission, by which the General Court (First Chamber) dismissed in part the action for partial annulment of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber), concerning an agreement on the fixing of price targets, the sharing of clients through non-aggression agreements and the exchange of commercial information, and for reduction of the fine imposed on the appellants

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH and Dow Europe GmbH to bear their own costs and to pay those incurred by the European Commission.

(1)  OJ C 252, 27.8.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/7

Judgment of the Court (Fifth Chamber) of 18 July 2013 — Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV, Schindler Deutschland Holding GmbH v European Commission, Council of the European Union

(Case C-501/11 P) (1)

(Appeal - Agreements, decisions and concerted practices - Market for the installation and maintenance of elevators and escalators - Liability of the parent company for infringements of the law on cartels committed by its subsidiary - Holding company - Internal compliance programme - Fundamental rights - Principles of the rule of law in the context of determination of the fines imposed - Separation of powers, and principles of legality, of non-retroactivity, of the protection of legitimate expectations and of fault - Regulation (EC) No 1/2003 - Article 23(2) - Validity - Legality of the 1998 Commission guidelines)

2013/C 260/12

Language of the case: German

Parties

Appellants: Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV, Schindler Deutschland Holding GmbH (represented by: R. Bechtold and W. Bosch, Rechtsanwälte, and J. Schwarze, Prozessbevollmächtigter)

Other parties to the proceedings: European Commission (represented by: R. Sauer and C. Hödlmayr, acting as Agents, and A. Böhlke, Rechtsanwalt), Council of the European Union (represented by: F. Florindo Gijón and M. Simm, Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Case T-138/07 Schindler Holding and Others v Commission by which the General Court dismissed the action seeking the annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 EC (Case COMP/E-1/38.823 — Elevators and Escalators), concerning a cartel on the market for the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands relating to bid-rigging, the sharing of markets, the fixing of prices, the award of projects and of the related contracts and the exchange of information, and, in the alternative, seeking the reduction of the fine imposed upon the appellants

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV and Schindler Deutschland Holding GmbH to bear their own costs and, in addition, to pay those incurred by the European Commission;

3.

Orders the Council of the European Union to bear its own costs.

(1)  OJ C 347, 26.11.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/8

Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Deutsche Umwelthilfe eV v Bundesrepublik Deutschland

(Case C-515/11) (1)

(Public access to environmental information - Directive 2003/4/EC - Power of the Member States to exclude bodies acting in a legislative capacity from the definition of ‘public authority’ under that directive - Limits)

2013/C 260/13

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Deutsche Umwelthilfe eV

Defendant: Bundesrepublik Deutschland

Re:

Request for a preliminary ruling — Verwaltungsgericht Berlin — Interpretation of Article 2(2) of Directive 2003/4/EC of the Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) — Obligation of public authorities to make available environmental information held by them to any applicant — National legislation exempting the supreme federal authorities from the obligation to provide information where they act in the context of the legislative process — Limits of the power of the Member States to exclude bodies acting in a legislative capacity from the definition of ‘public authority’ under Directive 2003/4/EC

Operative part of the judgment

The first sentence of the second subparagraph of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that the option given to Member States by that provision of not regarding ‘bodies or institutions acting in a … legislative capacity’ as public authorities, required to allow access to the environmental information which they hold, may not be applied to ministries when they prepare and adopt normative regulations which are of a lower rank than a law.

(1)  OJ C 32, 4.2.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/8

Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v French Republic

(Case C-520/11) (1)

(Failure of a Member State to fulfil obligations - Decision 2009/726/EC - Non-compliance - Imports of milk and milk products - Origin - At-risk holdings in terms of cases of spongiform encephalopathies - National prohibitions)

2013/C 260/14

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Jimeno Fernández and D. Bianchi, acting as Agents)

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

Re:

Failure to fulfil obligations — Infringement of Arts 4(3) TEU and 288 TFEU — Failure to comply with Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed (OJ 2009 L 258, p. 27)

Operative part of the judgment

The Court:

1.

Declares that, by failing to comply with Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed, the French Republic has failed to fulfil its obligations under Articles 4(3) TEU and 288 TFEU.

2.

The French Republic is ordered to pay costs.

(1)  OJ C 362, 10.12.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/9

Judgment of the Court (Third Chamber) of 18 July 2013 (requests for a preliminary ruling from the Verwaltungsgericht Hannover, Verwaltungsgericht Karlsruhe — Germany) — Laurence Prinz v Region Hannover (C-523/11), and Philipp Seeberger v Studentenwerk Heidelberg (C-585/11)

(Joined Cases C-523/11 and C-585/11) (1)

(Citizenship of the Union - Articles 20 TFEU and 21 TFEU - Right of freedom of movement and residence - Education or training grant awarded to nationals of a Member State in order to pursue their studies in another Member State - Requirement of residence in the home Member State for at least three years prior to the commencement of studies)

2013/C 260/15

Language of the case: German

Referring court

Verwaltungsgericht Hannover, Verwaltungsgericht Karlsruhe

Parties to the main proceedings

Applicants: Laurence Prinz (C-523/11), Philipp Seeberger (C-585/11)

Defendants: Region Hannover (C-523/11), and Studentenwerk Heidelberg (C-585/11)

Re:

Requests for a preliminary ruling — Verwaltungsgericht Hannover — Interpretation of Articles 20 TFEU and 21 TFEU — Receipt of an education or training grant (‘Ausbildungsförderung’) — National rules limiting receipt of that grant to one year for citizens who pursue their studies abroad and reside for less than three years prior to the commencement of their studies in a national territory

Operative part of the judgment

Articles 20 TFEU and 21 TFEU must be interpreted as meaning that they preclude legislation of a Member State which makes the award of an education grant for studies in another Member State for a period of more than one year subject to a sole condition, such as that laid down in Paragraph 16(3) of the Federal Law on assistance for education and training [Bundesgesetz über individuelle Förderung der Ausbildung (Bundesausbildungsförderungsgesetz)], as amended on 1 January 2008, by the twenty-second law amending the Federal Law on assistance for education and training, requiring the applicant to have had a permanent residence, within the meaning of that law, in national territory for at least three years before commencing those studies.

(1)  OJ C 13, 14.1.2012.

OJ C 49, 18.2.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/9

Judgment of the Court (Fourth Chamber) of 18 July 2013 — New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K.-Vallis A. & Co. OE

(Case C-621/11 P) (1)

(Appeal - Application for registration of the Community word mark FISHBONE - Opposition proceedings - Earlier national figurative mark FISHBONE BEACHWEAR - Genuine use of the earlier mark - Taking into account additional evidence not submitted within the time-limit set - Regulation (EC) No 207/2009 - Articles 42(2) and (3) and Article 76(2) - Regulation (EC) No 2868/95 - Rule 22(2))

2013/C 260/16

Language of the case: English

Parties

Appellant: New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH (represented by: V. Spitz, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos, acting as Agent), Vallis K. — Vallis A. & Co. O.E

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 29 September 2011 in Case T-415/09 New Yorker SHK Jeans v OHIM by which that court dismissed an action for annulment brought by the applicant for the word mark ‘FISHBONE’, for goods in Classes 18 and 25, against decision R 1051/2008-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 30 July 2009, rejecting in part the appeal brought against the decision of the Opposition Division refusing in part registration of that mark in the context of the opposition formed by the proprietor of the national mark ‘FISHBONE BEACHWEAR’ for the goods in Class 25, and the national sign ‘Fishbone’ used in business — Genuine use of the earlier mark — Taking into account additional evidence

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders New Yorker SHK Jeans GmbH & Co. KG to pay the costs.

(1)  OJ C 25, 28.1.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/10

Judgment of the Court (Fifth Chamber) of 18 July 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — P Oy

(Case C-6/12) (1)

(State aid - Articles 107 and 108 TFEU - Condition of ‘selectivity’ - Regulation (EC) No 659/1999 - Article 1(b)(i) - Existing aid - National legislation concerning corporate income tax - Deductibility of losses sustained - Non-deductibility in the case of change of ownership - Authorisation of derogations - Degree of latitude of the tax authorities)

2013/C 260/17

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: P Oy

Re:

Request for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 107(1) TFEU — System of deduction of companies’ losses — Legislation on corporate income tax providing that losses sustained during one tax year may be carried forward and deducted from any profit made in the following tax years — Deduction of losses in the case of a change of ownership during the year in which the losses are sustained or thereafter excluded — Exception to the rule excluding deduction for good reasons to do with the continuation of the activities of the company in question

Operative part

1.

A tax regime such as that at issue in the main proceedings may satisfy the condition of selectivity as an element of the concept of ‘State aid’ within the meaning of Article 107(1) TFEU if it were to be established that the reference system, namely, the ‘normal’ system, consists in a prohibition of the deduction of losses in the case of a change of ownership for the purposes of the first subparagraph of Paragraph 122 of Law No 1535/1992 of 30 December 1992 on income tax (Tuloverolaki), in relation to which the authorisation procedure provided for in the third subparagraph of Paragraph 122 would constitute an exception. Such a regime may be justified by the nature or general scheme of the system of which it forms part, but justification is not possible if the competent national authorities, so far as concerns authorisation to derogate from the prohibition of the deduction of losses, have discretion that empowers them to base authorisation decisions on criteria unrelated to that tax regime. However, the Court does not have sufficient information before it to rule definitively on those classifications.

2.

Article 108(3) TFEU does not preclude a tax regime such as that provided for in the first and third subparagraphs of Paragraph 122 of Law No 1535/1992, if that regime should be classified as ‘State aid’, from continuing to be applied in the Member State which established it because it grants ‘existing’ aid, without prejudice to the competence of the European Commission under Article 108(3) TFEU.

(1)  OJ C 58, 25.2.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/10

Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Gerechtshof te Leeuwarden — Netherlands) — Fiscale eenheid PPG Holdings BV cs te Hoogezand v Inspecteur van de Belastingdienst/Noord/kantoor Groningen

(Case C-26/12) (1)

(Value added tax - Sixth Directive 77/388/EEC - Articles 17 and 13B(d)(6) - Exemptions - Deduction of input tax - Pension fund - Concept of ‘management of special investment funds’)

2013/C 260/18

Language of the case: Dutch

Referring court

Gerechtshof te Leeuwarden

Parties to the main proceedings

Applicant: Fiscale eenheid PPG Holdings BV cs te Hoogezand

Defendant: Inspecteur van de Belastingdienst/Noord/kantoor Groningen

Re:

Request for a preliminary ruling — Gerechtshof te Leeuwarden — Interpretation of Articles 13B(d)(6) and 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and of Articles 135(1)(g), 168 and 169 of Council Directive 2006/112/EC of 28 November 2006 concerning the common system of value added tax (OJ 2006 L 347, p. 1) — Deduction of input tax — Taxable person having, under national legislation on pensions, set up a pension fund in order to safeguard the pension rights of his employees as members of that fund — Deduction of input tax on services supplied to him for the purposes of the management of the pension fund

Operative part of the judgment

Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a taxable person who has set up a pension fund in the form of a legally and fiscally separate entity, such as that at issue in the main proceedings, in order to safeguard the pension rights of his employees and former employees, is entitled to deduct the value added tax he has paid on services relating to the management and operation of that fund, provided that the existence of a direct and immediate link is apparent from all the circumstances of the transactions in question.

(1)  OJ C 98, 31.3.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/11

Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — ‘Evita-K’ EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-78/12) (1)

(Directive 2006/112/EC - Common system of value added tax - Supply of goods - Concept - Right to deduct - Refusal - Actual performance of a taxable transaction - Regulation (EC) No 1760/2000 - System for the identification and registration of bovine animals - Ear tags)

2013/C 260/19

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant:‘Evita-K’ EOOD

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

Re:

Request for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Articles 14(1), 178(a), 185(1), 226(6) and 242 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT on the purchase of animals — Proof of actual delivery of the goods — Whether or not there is an obligation to indicate in the invoices the ear tags of animals subject to identification under EU veterinary legislation — Whether or not there is an obligation to prove the supplier’s ownership

Operative part of the judgment

1.

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in the context of the exercise of the right to deduct value added tax, the concept of ‘supply of goods’ for the purposes of that directive and evidence that such a supply has in fact been carried out are not linked to the form of the acquisition of a right of ownership of the goods concerned. It is for the referring court to carry out, in accordance with the national rules relating to evidence, an overall assessment of all the facts and circumstances of the dispute before it in order to determine whether the supplies of goods at issue in the main proceedings were actually carried out and whether, as the case may be, a right to deduct may be exercised on the basis of those supplies.

2.

Article 242 of Directive 2006/112 must be interpreted as meaning that it does not require taxable persons who are not agricultural producers to show in their accounts the subject-matter of the supplies of goods which they make, when animals are concerned, and to prove that those animals were subject to control in accordance with International Accounting Standard 41 ‘Agriculture’.

3.

Article 226(6) of Directive 2006/112 must be interpreted as meaning that it does not require a taxable person who carries out supplies of goods concerning animals, which are subject to the identification and registration system established by Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, to mention the ear tags of those animals on the invoices relating to those supplies.

4.

Article 185(1) of Directive 2006/112 must be interpreted as allowing a deduction of value added tax to be adjusted only if the taxable person concerned previously benefitted from a right to deduct that tax under the conditions laid down in Article 168(a) of that directive.

(1)  OJ C 133, 5.5.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/12

Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the tribunal de première instance de Bruxelles — Belgium) — Eurofit SA v Bureau d’intervention et de restitution belge (BIRB)

(Case C-99/12) (1)

(Request for a preliminary ruling - Agriculture - Common organisation of the markets - Regulation (EEC) No 3665/87 - Export refunds - Misappropriation of goods intended for export - Exporter’s obligation to reimburse refunds - Failure of the competent authorities to provide information regarding the reliability of a contractor who is suspected of fraud - Force majeure - Absence)

2013/C 260/20

Language of the case: French

Referring court

Tribunal de première instance de Bruxelles

Parties to the main proceedings

Applicant: Eurofit SA

Defendant: Bureau d’intervention et de restitution belge (BIRB)

Re:

REQUEST for a preliminary ruling — Tribunal de première instance de Bruxelles — Interpretation of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ L 351, p. 1) — Exporter's obligation to reimburse refunds in the event of misappropriation of goods — Failure of the competent authorities to provide requested information or communication of erroneous information to the exporter, constituting a case of force majeure within the meaning of the Regulation

Operative part of the judgment

The failure by the competent customs authorities to inform the exporter of the existence of a likelihood of fraud committed by the exporter’s contractor does not constitute a case of force majeure for the purposes of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994, and, in particular, the first indent of the third subparagraph of Article 11(1) thereof. While such a failure is liable to constitute an exceptional case within the meaning of the second indent of the third subparagraph of Article 11(1) of Regulation No 3665/87, as amended by Regulation No 2945/94, it cannot, however, release that exporter from its obligation to reimburse export refunds unduly received, that exporter being exempted only from having to pay sanctions due under that article.

(1)  OJ C 138, 12.5.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/12

Judgment of the Court (Sixth Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Plovdiv — Bulgaria) — AES-3C Maritza East 1 EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-124/12) (1)

(Value added tax - Directive 2006/112/EC - Articles 168(a) and 176 - Right to deduction - Expenditure related to the purchase of goods and the supply of services for staff - Staff supplied to the taxable persons claiming the right to deduction but employed by another taxable person)

2013/C 260/21

Language of the case: Bulgarian

Referring court

Administrativen sad Plovdiv

Parties to the main proceedings

Applicant: AES-3C Maritza East 1 EOOD

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

Re:

Request for a preliminary ruling — Administrativen sad Plovdiv — Interpretation of Articles 168(a) and 176 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, p. 1) — Scope — Limitation of the right to deduct input tax — Company with no employees of its own but hiring workers full-time under a contract for the provision of staff employed by another company — Refusal of the right to deduct the VAT on the acquisition of transport services, work clothing and protective gear for workers and on business travel expenses of workers on the ground that the services are supplied free of charge to natural persons working for the company without being employed by it

Operative part of the judgment

1.

Article 168(a) and the second paragraph of Article 176 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation under which a taxable person which incurs costs for transport services, work clothing, protective gear and business trips for staff working for that taxable person does not have the right to a deduction of the VAT relating to those costs on the ground that that staff is provided to it by another entity and accordingly cannot be regarded, for the purposes of that legislation, as members of the taxable person’s staff, despite the fact that those costs can be regarded as having a direct and immediate link with the general costs connected with all the economic activities of that taxable person;

2.

The second paragraph of Article 176 of Directive 2006/112 is to be interpreted as precluding a Member State, on its accession to the European Union, from introducing a limitation on the right to a deduction under a national legislative provision which provides for the exclusion from the right to a deduction of goods and services intended to be supplied free of charge or for activities outside the scope of the taxable person’s economic activity, when such an exclusion was not provided for in the national legislation in force until the date of that accession;

It is for the referring court to interpret the provisions of domestic law at issue in the main proceedings, so far as possible, in accordance with European Union law. Where such an interpretation proves impossible, the referring court is required to set aside those provisions on the ground that they are incompatible with the second paragraph of Article 176 of Directive 2006/112.

(1)  OJ C 151, 26.5.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/13

Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato and Autorità garante della concorrenza e del mercato v Consiglio nazionale dei geologi

(Case C-136/12) (1)

(Third paragraph of Article 267 TFEU - Scope of the obligation on courts of final instance to make a reference for a preliminary ruling - Article 101 TFEU - Code of conduct of a professional association prohibiting the application of fee scales which are not commensurate with the dignity of the profession)

2013/C 260/22

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Consiglio nazionale dei geologi, Autorità garante della concorrenza e del mercato

Defendants: Autorità garante della concorrenza e del mercato, Consiglio nazionale dei geologi

Re:

Request for a preliminary ruling — Consiglio di Stato — Interpretation of Article 267, third paragraph, TFEU — Scope of the obligation on courts of final instance to make a reference for a preliminary ruling — Concept of ‘serious manifest breach of European Union law’ — Procedural rules and principles of a Member State which prohibit a national court from, first, referring questions to the Court as formulated by one of the parties to the proceedings which are manifestly inadmissible and, second, reformulating such questions of its own motion — Interpretation of Article 101 TFEU, of Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ 1985 L 199, p. 1), of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) and 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) — Code of conduct of a professional association prohibiting the application of fee scales which are not commensurate with the dignity of the profession (‘decoro e dignità professionale’) or with the quantity and quality of the services provided — Applicability of national competition rules that are more stringent than European Union rules

Operative part of the judgment

1.

The third paragraph of Article 267 TFEU must be interpreted as meaning that it is for the referring court alone to determine and formulate the questions to be referred for a preliminary ruling concerning the interpretation of European Union law which it considers relevant for the resolution of the dispute in the main proceedings. National rules which have the effect of undermining that jurisdiction must be disapplied.

2.

Rules such as those laid down by the Code of Conduct concerning the exercise of the profession of geologist in Italy, approved by the Consiglio nazionale dei geologi on 19 December 2006 and amended most recently on 24 March 2010, which establish as criteria for determining the remuneration of geologists, in addition to the quality and scale of the work to be performed, the dignity of the profession, constitute a decision by an association of undertakings within the meaning of Article 101(1) TFEU which may have the effect of restricting competition within the internal market. It is for the referring court to assess, in the light of the overall context in which the Code of Conduct produces its effects, including the national legal framework in its entirety and the manner in which that code is applied in practice by the National Association of Geologists, whether that effect is produced in the present case. That court must also verify whether, in the light of all the relevant material before it, the rules of that code, in particular in so far as they apply the criterion based on the dignity of the profession, may be regarded as necessary for the implementation of the legitimate objective of providing guarantees to consumers of geologists’ services.

(1)  OJ C 151, 26.5.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/14

Judgment of the Court (Fifth Chamber) of 18 July 2013 (request for a preliminary ruling from the Hovrätten för Nedre Norrland — Sweden) — ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments BV

(Case C-147/12) (1)

(Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Court with jurisdiction - Special jurisdiction in ‘matters relating to contract’ and ‘matters relating to tort, delict and quasi-delict’)

2013/C 260/23

Language of the case: Swedish

Referring court

Hovrätten för Nedre Norrland

Parties to the main proceedings

Applicant: ÖFAB, Östergötlands Fastigheter AB

Defendant: Frank Koot, Evergreen Investments BV

Re:

Request for a preliminary ruling — Hovrätten för Nedre Norrland — Intrepretation of Article 5(1) and (3) of Council Regulation (EC) 44/2001 of 22 December 2001, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2000 L 12, p. 1) — Whether or not included within special jurisdiction in matters relating to contract or in matters relating to tort, delict and quasi delict — Legal proceedings brought in Member State A against a natural person domiciled in Member State B who was a member of the board of directors of a limited company with its registered office in Member State A, and against a limited company having its registered office in Member State B which held the majority of the shares in the company with its registered office in Member State A — Action seeking a declaration that a member of the board of directors of a limited company is liable for the debts of that company resulting from the failure of the member of the board of directors to carry out certain formalities intended to monitor the financial situation of the company — Action seeking a declaration that the owner of a limited company is liable for the acts of another where the company continues trading despite being undercapitalised and despite the legal obligation to put the company into liquidation

Operative part of the judgment

1.

The concept of ‘matters relating to tort, delict or quasi delict’ in Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that it covers actions such as those at issue in the main proceedings brought by a creditor of a limited company seeking to hold liable a member of the board of directors of that company and one of its shareholders for the debts of that company, because they allowed that company to continue to carry on business even though it was undercapitalised and was forced to go into liquidation.;

2.

The concept of ‘the place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that as regards actions seeking to hold liable a member of the board of directors and a shareholder of a limited company for the debts of that company, that place is situated in the place to which the activities carried out by that company and the financial situation related to those activities are connected.

3.

The fact that the claim at issue has been transferred by the initial creditor to another, in circumstances such as those at issue in the main proceedings, has no impact on the determination of the court having jurisdiction under Article 5(3) of Regulation No 44/2001.

(1)  OJ C 151, 26.5.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/14

Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Corte di Appello di Roma — Italy) — Martini SpA v Ministero delle Attività Produttive

(Case C-211/12) (1)

(Agriculture - System of import licences - Regulation (EC) No 1291/2000 - Article 35(4)(c) - Securities lodged at the time of application for the issue of the licences - Import licence - Late submission of proof of its use - Penalty - Calculation of the amount forfeited - Regulation (EC) No 958/2003 - Tariff quotas)

2013/C 260/24

Language of the case: Italian

Referring court

Corte di Appello di Roma

Parties to the main proceedings

Appellant: Martini SpA

Respondent: Ministero delle Attività Produttive

Re:

Request for a preliminary ruling — Corte di Appello di Roma — Interpretation of Article 35 of Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p. 1) — Securities lodged at the time of application for the issue of the import licences — Determination of the amount to be forfeited in respect of quantities for which proof concerning the export licence with advance fixing of the refund was not provided within the time-limit specified

Operative part of the judgment

1.

Article 35 of Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products, as amended by Commission Regulation (EC) No 325/2003 of 20 February 2003, must be interpreted as meaning that the objective of the security referred to by that provision is not only to guarantee that the obligation to import the product concerned will be fulfilled but also to ensure that proof of the use of the licence will be submitted within a certain period.

2.

Article 35(4)(c) of Regulation No 1291/2000, as amended by Regulation No 325/2003, must be interpreted as meaning that, where proof that a product has been correctly imported has been submitted late, the amount to be forfeited, in respect of the quantities for which proof has not been provided within the time-limit set under Article 35(4)(a) of that regulation, must be calculated on the basis of a level of security which was actually applied at the time when the application for the issue of the licence or licences relating to that importation was made. For the purposes of such an interpretation, it is irrelevant that the security was lodged on the basis of a rate that was higher than that applicable to other imports of the same type of product as the product imported, given that the latter was exempted from the payment of import duties.

(1)  OJ C 194, 30.6.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/15

Judgment of the Court (Eighth Chamber) of 18 July 2013 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio — Italy) — Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12) v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12)

(Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12) (1)

(Electronic communications networks and services - Directive 2002/20/EC - Article 12 - Administrative charges imposed on undertakings in the sector concerned - National legislation making operators of electronic communications subject to the payment of a charge intended to cover the operating costs of the national regulatory authorities)

2013/C 260/25

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per il Lazio

Parties to the main proceedings

Applicants: Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12)

Defendants: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12)

In the presence of: Wind Telecomunicazioni SpA (C-228/12, C-229/12. C-232/12, C-255/12 to C-258/12), Telecom Italia SpA (C-228/12, C-230/12, C-232/2 and C-254/12), Vodafone Omnitel NV (C-230/12 and C-254/12), Fastweb SpA (C-230/12, C-254/12 and C-256/12), Television Broadcasting System SpA (C-257/12)

Re:

Request for a preliminary ruling — Tribunale amministrativo regionale per il Lazio — Interpretation of Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) (OJ 2002 L 108, p. 21) — Administrative charges imposed on undertakings in the sector concerned — Legislation providing that all costs for the national regulatory authorities, not financed by the State, are to be imposed upon individual undertakings in the sector concerned according to the income received for the relevant sales of goods and provision of services

Operative part of the judgment

Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) must be interpreted as meaning that it does not preclude legislation of a Member State, such as that at issue in the main proceedings, pursuant to which undertakings providing electronic communications services or networks are liable to pay a charge intended to cover all the costs incurred by the NRA which are not financed by the State, the amount of which being determined according to the income received by those undertakings, provided that that charge is exclusively intended to cover the costs relating to the activities mentioned in Article 12(1)(a), that the totality of the income obtained in respect of that charge does not exceed the total costs relating to those activities and that that charge is imposed upon individual undertakings in an objective, transparent and proportionate manner, which is for the national court to ascertain.

(1)  OJ C 217, 21.7.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/16

Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni

(Case C-234/12) (1)

(Television broadcasting - Directive 2010/13/EU - Articles 4(1) and 23(1) - Advertising spots - National rule laying down a maximum percentage of broadcasting time which can be dedicated to advertising for pay-TV broadcasters which is lower than that laid down for free-to-air TV broadcasters - Equal treatment - Freedom to provide services)

2013/C 260/26

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Sky Italia Srl

Defendant: Autorità per le Garanzie nelle Comunicazioni

Intervening parties: Reti Televisive Italiane (RTI) SpA, Maria Iaccarino

Re:

Request for a preliminary ruling — Tribunale Amministrativo Regionale per il Lazio — Interpretation of Article 4 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1) — Interpretation of Articles 49 TFEU, 56 TFEU and 63 TFEU and of Article 11 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights — Maximum percentage of broadcasting time which may be devoted to advertising — National legislation laying down a lower maximum percentage for pay-TV channels than for other channels

Operative part of the judgment

Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), as well as the principle of equal treatment and Article 56 TFEU must be interpreted as not precluding, in principle, a national rule, such as that at issue in the main proceedings, which lays down shorter hourly television advertising limits for pay-TV broadcasters than those set for free-to-air broadcasters, provided that the principle of proportionality is observed, which is a matter for the referring court to assess.

(1)  OJ C 217, 21.7.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/16

Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd

(Case C-252/12) (1)

(Trade marks - Regulation (EC) No 207/2009 - Article 9(1)(b) and (c) - Article 15(1) - Article 51(1)(a) - Grounds for revocation - Definition of ‘genuine use’ - Trade mark used together with another trade mark or as part of a compound trade mark - Colour or combination of colours in which a trade mark is used - Reputation)

2013/C 260/27

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicants: Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd

Defendant: Asda Stores Ltd

Re:

Request for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Articles 9(1)(b) and (c), 15 and 51 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) — Notion of ‘genuine use’ of a trade mark — Combined use of figurative and word marks which were registered separately — Trade mark registered without claiming a colour, but used with a particular colour to the point of creating an association in the mind of a section of the public between that colour and the mark

Operative part of the judgment

1.

Article 15(1) and Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark must be interpreted as meaning that the condition of ‘genuine use’, within the meaning of those provisions, may be fulfilled where a Community figurative mark is used only in conjunction with a Community word mark which is superimposed over it, and the combination of those two marks is, furthermore, itself registered as a Community trade mark, to the extent that the differences between the form in which that trade mark is used and that in which it was registered do not change the distinctive character of that trade mark as registered.

2.

Article 9(1)(b) and (c) of Regulation No 207/2009 must be interpreted as meaning that where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours with the result that it has become associated in the mind of a significant portion of the public with that colour or combination of colours, the colour or colours which a third party uses in order to represent a sign alleged to infringe that trade mark are relevant in the global assessment of the likelihood of confusion or unfair advantage under that provision.

3.

Article 9(1)(b) and (c) of Regulation No 207/2009 must be interpreted as meaning that the fact that the third party making use of a sign which allegedly infringes the registered trade mark is itself associated, in the mind of a significant portion of the public, with the colour or particular combination of colours which it uses for the representation of that sign is relevant to the global assessment of the likelihood of confusion and unfair advantage for the purposes of that provision.

(1)  OJ C 227, 28.7.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/17

Judgment of the Court (First Chamber) of 18 July 2013 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Citroën Belux NV v Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)

(Case C-265/12) (1)

(Article 56 TFEU - Freedom to provide services - Directive 2005/29/EC - Unfair commercial practices - Consumer protection - Combined offers involving at least one financial service - Prohibition - Exceptions)

2013/C 260/28

Language of the case: Dutch

Referring court

Hof van beroep te Brussel

Parties to the main proceedings

Applicant: Citroën Belux NV

Defendant: Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)

Re:

Request for a preliminary ruling — Hof van beroep te Brussel (Belgium) — Interpretation of Article 56 TFEU and of Article 3(9) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — National consumer-protection legislation which prohibits generally, subject to exceptions exhaustively set out, any combined offer containing at least one financial service

Operative part of the judgment

Article 3(9) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted, as must Article 56 TFEU, as not precluding a national provision, such as that at issue in the main proceedings, which lays down a general prohibition — save in the cases exhaustively listed by the national legislation — of combined offers made to consumers where at least one of the components of those offers is a financial service.

(1)  OJ C 258, 25.8.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/17

Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Green Swan Pharmaceuticals CR, a.s. v Státní zemědělská a potravinářská inspekce, ústřední inspektorát

(Case C-299/12) (1)

(Consumer protection - Regulation (EC) No 1924/2006 - Nutrition and health claims made on foods - Article 2(2)(6) - ‘Reduction of disease risk claim’ - Article 28(2) - Products bearing trade marks or brand names - Transitional measures)

2013/C 260/29

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Green Swan Pharmaceuticals CR, a.s.

Defendant: Státní zemědělská a potravinářská inspekce, ústřední inspektorát

Re:

Request for a preliminary ruling — Nejvyšší správní soud — Intrepretation of Article 1(3), Article 2(2)(6) and Article 28(2) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9) — ‘Reduction of disease risk claim’ — Claim on the packaging of a product, stating that ‘the preparation also contains calcium and Vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures’

Operative part of the judgment

1.

Article 2(2)(6) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, must be interpreted as meaning that, in order to be considered a ‘reduction of disease risk claim’ within the meaning of that provision, a health claim need not necessarily expressly state that the consumption of a category of food, a food or one of its constituents ‘significantly’ reduces a risk factor in the development of a human disease.

2.

Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as meaning that a commercial communication appearing on the packaging of a food may constitute a trade mark or brand name, within the meaning of that provision, provided that it is protected, as a mark or as a name, by the applicable legislation. It is for the national court to ascertain, having regard to all the legal and factual considerations of the case before it, whether that communication is indeed a trade mark or brand name thus protected.

3.

Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as referring only to foods bearing a trade mark or brand name which must be considered a nutrition or health claim within the meaning of that regulation and which, in that form, existed before 1 January 2005.

(1)  OJ C 273, 8.9.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/18

Judgment of the Court (Eighth Chamber) of 18 July 2013 (request for a preliminary ruling from the Højesteret — Denmark) — Metro Cash & Carry Danmark ApS v Skatteministeriet

(Case C-315/12) (1)

(Excise duty - Directive 92/12/EEC - Articles 7 to 9 - Directive 2008/118/EC - Articles 32 to 34 - Intra-Community movement of products subject to excise - Regulation (EEC) No 3649/92 - Articles 1 and 4 - Simplified accompanying document - Copy 1 - ‘Cash & carry’ business - Products released for consumption in a Member State and held for commercial purposes in another Member State or products acquired by private individuals for their own use and transported by them - Spirits - No obligation on the supplier to check)

2013/C 260/30

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Appellant: Metro Cash & Carry Danmark ApS

Respondent: Skatteministeriet

Re:

Request for a preliminary ruling — Højesteret — Interpretation of Article 7(4) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), of Article 34(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12), and of Commission Regulation (EEC) No 3649/92 of 17 December 1992 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch (OJ 1992 L 369, p. 17) — Excise duty — Goods acquired by private individuals for their own use — Whether or not an undertaking in a Member State is under an obligation to ensure that it receives copy 1 of the simplified accompanying document when it sells alcohol in its stores in that Member State to nationals of other Member States who make their purchases on presentation of a store card issued in the name of undertakings based in other Member States, in cases where the card holder has the alcoholic drinks supplied to him at the store in order that he can then transport them himself to the Member State in which he is resident

Operative part of the judgment

1.

Articles 7 to 9 of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 92/108/EEC of 14 December 1992, and Articles 1 and 4 of Commission Regulation (EEC) No 3649/92 of 17 December 1992 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch, must be interpreted as meaning that a trader, such as the trader at issue in the main proceedings, is not required to check whether purchasers from other Member States intend to import products subject to excise duty into another Member State and, where relevant, whether such importation is for private or commercial use.

2.

Articles 32 to 34 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as not substantially amending Articles 7 to 9 of Directive 92/12, as amended by Directive 92/108, in a manner which would warrant, in circumstances such as those at issue in the main proceedings, a different answer to the first question.

3.

Article 8 of Directive 92/12, as amended by Directive 92/108, must be interpreted as being capable of covering the purchase of products subject to excise duty in circumstances such as those at issue in the main proceedings where those products are acquired by private individuals, for their own use and are transported by them, which is for the competent national authorities to check on a case-by-case basis.

(1)  OJ C 258, 25.8.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/19

Judgment of the Court (Sixth Chamber) of 18 July 2013 — European Commission v Republic of Cyprus

(Case C-412/12) (1)

(Failure of a Member State to fulfil obligations - Directive 1999/31/EC - Landfill of waste - Operation in the absence of a conditioning plan for the site - Obligation to close down the site)

2013/C 260/31

Language of the case: Greek

Parties

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

Defendant: Republic of Cyprus (represented by: M. Chatzigeorgiou and K. Lykourgos, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 14 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1) — Continued operation of the landfill sites of Nicosia and Limassol in the absence of conditioning plans for the sites

Operative part of the judgment

The Court:

1.

Declares that, by failing to close down all the landfill sites for the uncontrolled disposal of waste (XADA) which are operated on its territory or in failing to comply with Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Republic of Cyprus has failed to fulfill its obligations under Article 14 of that directive;

2.

Orders the Republic of Cyprus to pay the costs.

(1)  OJ C 366, 24.11.2012.

7.9.2013   

EN

Official Journal of the European Union

C 260/19

Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU

(Opinion 2/13)

2013/C 260/32

Language of the case: all the official languages

Applicant

European Commission (represented by: H. Krämer, L. Romero Requena, C. Ladenburger and B. Smulders, Agents)

Question submitted to the Court

Is the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms compatible with the Treaties?

7.9.2013   

EN

Official Journal of the European Union

C 260/19

Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 7 May 2013 — Birgit Wagener v Bundesagentur für Arbeit — Familienkasse Villingen-Schwenningen

(Case C-250/13)

2013/C 260/33

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Birgit Wagener

Defendant: Bundesagentur für Arbeit — Familienkasse Villingen-Schwenningen

Questions referred

1.

In circumstances such as those of the main proceedings, in which, on 17 October 2012, a German family benefits office granted and paid (by way of set-off) the child benefit due for the period from October 2006 to November 2011 in the amount of the difference between the family allowances payable in the Swiss Confederation and the corresponding German benefits, in accordance with Article 10(1)(a) of Regulation (EEC) No 574/2, (1) is the conversion of Swiss family allowances from Swiss francs into euros to be carried out in accordance with Article 107(1) of Regulation (EEC) No 574/72, Article 107(6) of Regulation (EEC) No 574/72 or Article 90 of Regulation (EC) No 987/2009, (2) in conjunction with Decision No H3 of 15 October 2009 (3) concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009?

2.

If the answer to Question 1 is that the conversion must be carried out wholly or in part in accordance with Article 107(6) of Regulation (EEC) No 574/72: in the circumstances set out in Question 1, is the relevant date for the purposes of conversion the date on which the foreign benefit to be set off was paid or the date on which the domestic benefit against which the foreign benefit is set off is paid?

3.

If the answer to Question 1 is that the conversion must be carried out wholly or in part in accordance with Article 107(1) of Regulation (EEC) No 574/72: in circumstances such as those of the main proceedings, how must the reference period provided for in Article 107(2) and (4) of Regulation (EEC) No 574/72 be determined? Is the relevant date for the purposes of conversion the date on which the Swiss institution granted or paid the family benefit to be set off?

4.

If the answer to Question 1 is that the conversion must be carried out wholly or in part in accordance with Article 90 of Regulation (EC) No 987/2009, in conjunction with Decision No H3 of 15 October 2009: in accordance with which provision (paragraph 2, paragraph 3(a) or paragraph 3(b)) of Decision No H3 of 15 October 2009 and in what manner must the conversion of family benefits be carried out if the national law relating to the domestic family benefit itself provides for an exclusion of benefits (Paragraph 65(1), point 2, of the German Law on Income Tax) and the benefit is granted on the basis of European Union law alone? Is the relevant date for the purposes of conversion the date on which the Swiss institution granted or paid the family benefits?

(1)  Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and their families moving within the Community (OJ, English Special Edition 1972(I), p. 160) (updated version).

(2)  Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).

(3)  Decision No H3 of 15 October 2009 concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009 of the European Parliament and of the Council (OJ 2010 C 106, p. 56).

7.9.2013   

EN

Official Journal of the European Union

C 260/20

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 13 May 2013 — Elena Recinto-Pfingsten v Swiss International Air Lines AG

(Case C-259/13)

2013/C 260/34

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Elena Recinto-Pfingsten

Defendant: Swiss International Air Lines AG

Question referred

Is the Agreement (1) on air transport between the Swiss Confederation and the European Community of 21 June 1999, as amended by Decision No 2/2010 (2) of the Community/Switzerland Air Transport Committee of 26 November 2010, to be interpreted as meaning that Regulation (EC) No 261/2004 (3) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, is applicable, in accordance with Article 3(1)(a), also to passengers who embark on a flight to a third country from airports in Switzerland?

(1)  Agreement between the European Community and the Swiss Confederation on Air Transport — Final Act — Joint Declarations — Information relating to the entry into force of the seven Agreements with the Swiss Confederation in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products (OJ 2002 L 114, p. 73).

(2)  Decision No 2/2010 of the Joint Community/Switzerland Air Transport Committee set up under the Agreement between the European Community and the Swiss Confederation on Air Transport of 26 November 2010 replacing the Annex to the Agreement between the European Community and the Swiss Confederation on Air Transport (OJ 2010 L 347, p. 54).

(3)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/21

Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 24 May 2013 — T-Mobile Austria GmbH v Telekom-Control-Kommission

(Case C-282/13)

2013/C 260/35

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant: T-Mobile Austria GmbH

Respondent authority: Telekom-Control-Kommission

Interveners: Hutchison 3 G Austria Holdings GmbH, Hutchison 3G Austria GmbH, Orange Austria Telecommunication GmbH, Stubai SCA, Orange Belgium SA, A1 Telekom Austria AG

Additional party: Bundesministerium für Verkehr, Innovation und Technolgie

Question referred

Are Articles 4 and 9b of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 5(6) of Directive 2002/20/EC (2) of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) to be interpreted as meaning that they confer on a competitor the status, in a national procedure under Article 5(6) of the Authorisation Directive, of an undertaking which is affected within the meaning of Article 4(1) of the Framework Directive?

(1)  OJ 2002 L 108, p. 33.

(2)  OJ 2002 L 108, p. 21, amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).

7.9.2013   

EN

Official Journal of the European Union

C 260/21

Request for a preliminary ruling from the Finanzgericht München (Germany) lodged on 29 May 2013 — Data I/O GmbH v Hauptzollamt München

(Case C-297/13)

2013/C 260/36

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Data I/O GmbH

Defendant: Hauptzollamt München

Question referred

Is note 2(a) to Section XVI (1) to be interpreted as meaning that goods that fulfil the conditions both for classification as a part within the meaning of heading 8473 of the Combined Nomenclature (CN) and for classification as individual goods under another heading of Chapter 84 of the CN or a heading of Chapter 85 of the CN are to be classified under the other heading because heading 8473 of the CN does not take precedence over the other headings of Chapter 84 and the headings of Chapter 85 of the CN?

(1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1); in the versions as amended by Commission Regulations (EC) Nos 2031/2001 of 6 August 2001 (OJ 2001 L 279, p. 1), 1832/2002 of 1 August 2002 (OJ 2002 L 290, p. 1), 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1) and 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/21

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 June 2013 — Novo Nordisk Pharma GmbH v Corinna Silber

(Case C-310/13)

2013/C 260/37

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Defendant and appellant on a point of law: Novo Nordisk Pharma GmbH

Claimant and respondent in the appeal on a point of law: Corinna Silber

Question referred

Must Article 13 of Directive 85/374/EEC (1) be interpreted as meaning that, as a ‘special liability system’, the German system of liability for pharmaceutical products is in general not affected by that directive, with the result that the national system of liability for pharmaceutical products may be further developed, or must that provision be interpreted as meaning that no extension is permitted to the situations covered by the liability system for pharmaceutical products existing at the point in time at which the directive was notified (30 July 1985)?

(1)  Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).

7.9.2013   

EN

Official Journal of the European Union

C 260/22

Request for a preliminary ruling from the Thüringer Oberlandesgericht (Germany) lodged on 11 June 2013 — Udo Rätzke v S+K Handels GmbH

(Case C-319/13)

2013/C 260/38

Language of the case: German

Referring court

Thüringer Oberlandesgericht

Parties to the main proceedings

Appellant: Udo Rätzke

Respondant: S+K Handels GmbH

Questions referred

Is Article 4(a) of Commission Delegated Regulation (EU) No 1062/2010 (1) of 28 September 2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of televisions to be interpreted as meaning that dealers are subject to an obligation to label televisions (from 30 November 2011) only if those televisions were supplied by the supplier together with the relevant label (from 30 November 2011) in accordance with Article 3(1)(a) of that regulation, or does the labelling obligation also apply to dealers (from 30 November 2011) in respect of televisions supplied by suppliers before 30 November 2011 without the relevant labels, so that dealers are obliged to request suppliers (in good time, subsequently) to provide labels for those televisions?

(1)  OJ L 314, p. 64.

7.9.2013   

EN

Official Journal of the European Union

C 260/22

Appeal brought on 14 June 2013 by Fercal — Consultadoria e Serviços, Lda against the judgment delivered on 10 April 2013 by the General Court (Fifth Chamber) in Case T-360/11 Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (Patrizia Rocha)

(Case C-324/13 P)

2013/C 260/39

Language of the case: Portuguese

Parties

Appellant: Fercal — Consultadoria e Serviços, Lda (represented by: A.J. Rodrigues, advogado)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The appellant claims that the Court of Justice should:

—

set aside the judgment of 10 April 2013 of the Fifth Chamber of the General Court, notified on 11 April 2013, in Case T-360/11 and, consequently, annul the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case … R2355/2010-2 in annulment proceedings No 2004 C, in accordance with the relevant provisions of European Union law;

—

declare that the appellant’s mark is still valid and in force;

—

order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

Article 60 of Regulation No 207/2009 (1) provides, in relation to the lodging and form of an appeal, that a notice of appeal must be filed in writing within two months and that, within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed.

The appellant submits that, although sent by mail on 27 January 2011, the grounds of appeal were received on 2 February 2011, that is to say outside of the four-month time limit provided for in Article 60 of Regulation No 207/2009.

The rules relating to the calculation of time limits and to notification are set out in Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

Pursuant to Rule 70(1) and (2) thereof, when calculated in terms of days, weeks, months or years, calculation shall start on the day following notification, namely the day of actual receipt of the document notified.

Where the time limit is given in months, as in the present case, the time limit shall expire in the relevant month four months later on the day which has the same number as date of notification (Rule 70(4)).

In the event of unforeseen circumstances or force majeure unattributable to either party, the time limit shall be suspended.

In the present case, since the appellant was notified on 27 September 2010 and was provided with four months within which to file a notice of appeal, the time limit commenced on 28 September 2010 and ended four months later on the same day, namely on 28 January 2011.

Consequently, the appellant filed its notice of appeal within that time limit so as not to risk losing its rights, that is to say that its time limit was shorter than four months.

The appellant filed a notice or appeal setting out its grounds of appeal by mail on 27 January 2011, namely on the day prior to the final day of the time limit.

The respondent received the above on 2 February 2011, since there was a weekend in between.

The appellant submits that it complied with the relevant provisions of law and the time limit with which it was provided to file its notice of appeal, and thus deems its appeal to be admissible.

In that respect, it claims that the notice of appeal was filed within the two-month time limit (first part of Article 60 of Regulation No 207/2009).

It adds that the grounds of appeal were submitted in writing within the four-month time limit.

Moreover, they were sent by post and were thus no longer in the appellant’s hands.

The ‘filing’ of a notice of appeal, referred to in the judgment under appeal, cannot in any way — with all due respect to alternative interpretations and opinions — be understood as receipt by the respondent, unless the appellant fails to comply with the prescribed time limit.

Contrary to the what was held in the judgment under appeal, Article 60 of Regulation No 207/2009 indeed refers to the filing of a ‘statement setting out the grounds of appeal within four months’, but that cannot be taken to mean, and does not mean, that such grounds must also be received within that time limit, since such documents are not always received immediately.

The appellant is required to comply with its obligation within that time limit, which it indeed did. The date of reception can thus not be regarded as the relevant date, since such an interpretation contravenes the principle of equality in the light of the diversity of countries and the fact that the same means of communication may not be available nor required, and constitute alternatives which are consistent with Regulation No 2868/95.

The appellant claims that it is required to send or file its grounds of appeal within the four-month time limit, and the filing of its grounds of appeal was not surprising in the present case, since the appellant had already expressed its intention to do so.

Having decided as it did, namely in dismissing its action in its entirety, the General Court infringed Article 60 of Regulation No 207/2009 and Rules 61, 62, 63, 64, 65 and 70 of Regulation No 2868/95.

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

7.9.2013   

EN

Official Journal of the European Union

C 260/23

Request for a preliminary ruling from Tribunalul Sibiu (Romania) lodged on 18 June 2013 — Ilie Nicolae Nicula v Administrația Finanțelor Publice a Municipiului Sibiu, Administrația Fondului pentru Mediu

(Case C-331/13)

2013/C 260/40

Language of the case: Romanian

Referring court

Tribunalul Sibiu (Romania)

Parties to the main proceedings

Applicant: Ilie Nicolae Nicula

Defendants: Administrația Finanțelor Publice a Municipiului Sibiu, Administrația Fondului pentru Mediu

Question referred

Are the provisions of Article 6 of the Treaty on European Union, Articles 17, 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 110 TFEU, the principle of legal certainty and the principle prohibiting reformatio in peius, both affirmed in Community law and in the case-law of the Court of Justice, (1) to be interpreted as precluding legislation such as Emergency Order No 9/2013?

(1)  Case C-381/97 Belgocodex [1998] ECR I-8153, and Case 10/78 Belbouab [1978] ECR 1915.

7.9.2013   

EN

Official Journal of the European Union

C 260/23

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 19 June 2013 — Nordex Food A/S v Hauptzollamt Hamburg-Jonas

(Case C-334/13)

2013/C 260/41

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Nordex Food A/S

Defendant: Hauptzollamt Hamburg-Jonas

Questions referred

1.

For the purposes of the decision on the granting of an export refund, must it be assumed that the export licence has been duly presented pursuant to Article 4(1) of Commission Regulation (EC) No 800/1999 (1) laying down common detailed rules for the application of the system of export refunds on agricultural products if the export customs office accepted the export declaration without the presentation of the licence but in so doing permitted the exporter to submit the licence later within a certain time-limit and the exporter complied with this?

2.

If the reply to the first question is in the negative: does Article 4(1) of Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products require, on a mandatory basis, that the export licence must be presented when lodging the export declaration or is it sufficient if the exporter first submits the export licence (granted to him prior to export) in the payment procedure?

3.

Is an exporter, who initially submitted forged customs documents in relation to the arrival of the exported product in the country of destination, able to submit valid customs documents to preserve his entitlement even after the expiry of the time-limits for submission laid down in Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, if the delayed submission has not delayed or hindered the handling of the payment procedure because the application for a refund was initially rejected as a result of reasons other than the failure to submit such proof of arrival at destination and such proof is submitted after the forgery of those documents has been recognised?

4.

Is a penalty pursuant to Article 51 of Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products incurred even if the export refund applied for did correspond to that which in fact had to be granted but in the payment procedure the exporter initially submitted documents on the basis of which the export refund could not have been granted to him?

(1)  Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).

7.9.2013   

EN

Official Journal of the European Union

C 260/24

Reference for a preliminary ruling from Scottish Land Court (United Kingdom) made on 18 June 2013 — Robin John Feakins v The Scottish Ministers

(Case C-335/13)

2013/C 260/42

Language of the case: English

Referring court

Scottish Land Court

Parties to the main proceedings

Applicant: Robin John Feakins

Defendant: The Scottish Ministers

Questions referred

1.

Whether, on a proper construction, Article 18(2) of Commission Regulation (EC) No 795/2004 (1) applies:-

(a)

where a farmer meets the conditions for applying any two or more of the following articles: namely Article 19, Article 20, Article 21 Article 22, Article 23, Article 23a, of that Regulation and Article 37(2), Article 40, Article 42(3) and Article 42(5) of Council Regulation (EC) No 1782/2003 (2); or only

(b)

where a farmer meets the conditions for two or more of Articles 19, 20, 21, 22, 23 and 23a [OMISSIS] Commission Regulation (EC) No 795/2004 or separately two or more of Articles 37(2), 40, 42(3) and 42(5) of Council Regulation (EC) No 1782/2003.

2.

If Article 18(2) is interpreted in the manner set out in paragraph (l)(a) above, whether Article 18(2) is invalid in whole or in part on one of or both of the following grounds which are advanced by the appellant:

(a)

on the basis that the Commission, in enacting Regulation (EC) No 795/2004, did not have power to enact Article 18(2) to that effect; or

(b)

on the basis that the Commission, in enacting Regulation (EC) No 795/2004 did not state reasons for Article 18(2).

3.

If Article 18(2) is interpreted in the manner in paragraph (l)(a) above and question (2) falls to be answered in the negative, does Article 18(2) apply in the situation where a farmer has received a provisional approval of an allocation from the national reserve under Article 22 of Commission Regulation (EC) No 795/2004 for a farm in 2005, but that allocation is not declared in the IACS form until 2007, when the farm was taken over by the farmer?

(1)  Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers

OJ L 141, p. 1

(2)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001

OJ L 270, p. 1

7.9.2013   

EN

Official Journal of the European Union

C 260/25

Appeal brought on 19 June 2013 by the European Commission against the judgment delivered on 10 April 2013 in Case T-671/11 IPK International — World Tourism Marketing Consultants GmbH v European Commission

(Case C-336/13 P)

2013/C 260/43

Language of the case: German

Parties

Appellant: European Commission (represented by: F. Dintilhac, G. Wilms, G. Zavvos, Agents)

Other party to the proceedings: IPK International — World Tourism Marketing Consultants GmbH

Form of order sought

The Appellant claims that the Court should

—

set aside the judgment of the General Court (First Chamber) of 10 April 2013 in Case T-671/11;

—

dismiss the claim by IPK International — World Tourism Marketing Consultants GmbH against the Commission of 22 December 2011

—

order IPK International — World Tourism Marketing Consultants GmbH to pay the costs at both instances.

Pleas in law and main arguments

The Appellant argues that the judgment under appeal is legally defective in numerous respects:

(a)

It fails to take account of the case-law of the Court of Justice according to which equalisation interest serves to compensate for inflation.

(b)

Contrary to the case-law of the Court of Justice, it fails to make a distinction between equalisation interest and interest for delay, and sets both interest rates at two percentage points above the main refinancing interest rate of the European Central Bank.

(c)

It contains a calculation error, in that it capitalises the equalisation interest and calculates the interest for delay from 15 April 2011.

(d)

It misinterprets the contested decision and its own judgment in Case T-297/05 (1) and distorts the facts.

(e)

It contains an insufficient statement of reasons: It is not possible to determine the reasons for the amount of the interest calculation and the beginning of the calculation of interest for delay and the reasoning is inherently contradictory.

(f)

It infringes the principles of EU law on enrichment.

(1)  [2011] ECR II-1859

7.9.2013   

EN

Official Journal of the European Union

C 260/25

Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 24 June 2013 — Cruz & Companhia Lda v Instituto de Financiamento da Agricultura e Pescas, IP (IFAP)

(Case C-341/13)

2013/C 260/44

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Cruz & Companhia, Lda.

Defendant: Instituto de Financiamento da Agricultura e Pescas, IP (IFAP)

Questions referred

1.

Does Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 (1) of 18 December 1995 on the protection of the European Communities financial interests apply only to relations between the European Community and the defendant in its capacity as a paying agency of Community aid, or does it also apply to relations between the defendant in its capacity as a paying agency of Community aid and the applicant in its capacity as a beneficiary of aid which is deemed to have been wrongly granted?

2.

If the limitation period laid down in Article 3(1) of that regulation is applicable also to relations between the paying agency of the aid and the beneficiary of the aid deemed to have been granted unduly, should that limitation period be understood as being applicable only where administrative penalties within the meaning of Article 5 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 are at issue, or also where ‘administrative measures’ within the meaning of Article 4(1) of that regulation are at issue — in this instance, repayment of sums wrongly received?

(1)  OJ 1995 L 312, p. 1.

7.9.2013   

EN

Official Journal of the European Union

C 260/26

Request for a preliminary ruling from the Tribunal do Trabalho de Leiria (Portugal) lodged on 24 June 2013 — Modelo Continente Hipermercados SA v Autoridade para as Condições do Trabalho — Centro Local do Lis (ACT)

(Case C-343/13)

2013/C 260/45

Language of the case: Portuguese

Referring court

Tribunal do Trabalho de Leiria

Parties to the main proceedings

Applicant: Modelo Continente Hipermercados SA

Defendant: Autoridade para as Condições do Trabalho — Centro Local do Lis (ACT)

Questions referred

1.

In the light of Community law and, in particular, Directive 2011/35/EU (1) and Article 19 thereof, does the merger of companies entail a system of transfer of liability for administrative offences to the acquiring company for acts committed by the company being acquired before registration of the merger?

2.

Can a penalty for administrative offences be considered a debt owed to third parties (in the present case the State, for infringement of rules concerning administrative offences) for the purposes of the application of the Directive, with the consequence that the corresponding debt (fine) for an administrative offence, in respect of which the State is the creditor, is transferred to the acquiring company?

3.

Does an interpretation of Article 112 of the Commercial Companies Code according to which it does not imply termination of proceedings for an administrative offence committed before the merger, or of the corresponding fine to be imposed, conflict with the abovementioned Community Directive, which sets out the consequences of a company merger, thereby constituting a broad interpretation of the provision contrary to the principles of Community law and, in particular, Article 19 of the Directive?

4.

Does that interpretation constitute a breach of the principle that there can be no administrative offence without strict (mitigated) liability or liability for fault on the part of the acquiring entity?

(1)  Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies (OJ L 110, 29.4.2011, p. 1)

7.9.2013   

EN

Official Journal of the European Union

C 260/26

Request for a preliminary ruling from the Commissione tributaria provinciale di Roma (Italia) lodged on 24 June 2013 — Cristiano Blanco v Agenzia delle Entrate

(Case C-344/13)

2013/C 260/46

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Roma

Parties to the main proceedings

Applicant: Cristiano Blanco

Defendant: Agenzia delle Entrate — Direzione Provinciale I di Roma — Ufficio Controlli

Question referred

Is it incompatible with Article 49 of the EC Treaty for persons resident in Italy to be required to declare for tax purposes, and be liable for tax on, winnings obtained from casinos in Member States of the European Union, as provided for by Article 67(1)(d) of Presidential Decree No 917 of 22.12.1986 (‘the TUIR’), or must this be regarded as justified on grounds of public policy, public security or public health, pursuant to Article 46 of the EC Treaty?

7.9.2013   

EN

Official Journal of the European Union

C 260/26

Reference for a preliminary ruling from Supreme Court (Ireland) made on 24 June 2013 — Karen Millen Fashions Ltd v Dunnes Stores, Dunnes Stores (Limerick) Ltd

(Case C-345/13)

2013/C 260/47

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: Karen Millen Fashions Ltd

Defendant: Dunnes Stores, Dunnes Stores (Limerick) Ltd

Questions referred

1.

In consideration of the individual character of a design which is claimed to be entitled to be protected as an unregistered Community design for the purposes of Council Regulation (EC) No 6/2002 of 12th December, 2001 on Community designs (1), is the overall impression it produces on the informed user, within the meaning of Article 6 of that Regulation, to be considered by reference to whether it differs from the overall impression produced on such a user by

(a)

any individual design which has previously been made available to the public, or

(b)

any combination of known design features from more than one such earlier design?

2.

Is a Community design court obliged to treat an unregistered Community design as valid for the purposes of Article 85(2) of Council Regulation (EC) No 6/2002 of 12th December, 2001 on Community designs where the right holder merely indicates what constitutes the individual character of the design or is the right holder obliged to prove that the design has individual character in accordance with Article 6 of that Regulation?

(1)  OJ L 3, p. 1

7.9.2013   

EN

Official Journal of the European Union

C 260/27

Action brought on 25 June 2013 — European Commission v Hellenic Republic

(Case C-351/13)

2013/C 260/48

Language of the case: Greek

Parties

Applicant: European Commission (represented by: A. Markoulli and B. Schima)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by failing to ensure that from 1 January 2012 laying hens are no longer reared in unenriched cage systems, the Hellenic Republic has failed to fulfil its obligations under Article 3 and Article 5(2) of Council Directive 1999/74/EC (1) of 19 July 1999 laying down minimum standards for the protection of laying hens;

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 5(2) of Directive 1999/74/EC prohibits the rearing of laying hens in unenriched cage systems from 1 January 2012. In addition, Article 3 of Directive 1999/74/EC provides that the Member States are obliged to ensure that owners and holders apply in respect of laying hens only the rearing systems that are permitted by the directive.

The Commission directed the Member States’ attention to their obligations to comply with the abovementioned provisions of the directive from 2011. In accordance with the information which was supplied by the Hellenic Republic, it was clear that a significant number of owners and holders of establishments with laying hens would not be able to comply with the Hellenic Republic’s obligations under Directive 1999/74/EC by the date for compliance which is laid down by that directive.

It is apparent from the information which the Hellenic Republic has provided in the pre-litigation procedure and from more recent updates of that information that the Hellenic Republic has still not succeeded in complying with its obligations under Article 3 and Article 5(2) of Directive 1999/74/EC.

(1)  OJ 1999 L 203, p. 53.

7.9.2013   

EN

Official Journal of the European Union

C 260/27

Request for a preliminary ruling from the Commissione Tributaria Regionale dell’Umbria (Italy) lodged on 27 June 2013 — Umbra Packaging srl v Agenzia delle Entrate — Direzione Provinciale di Perugia

(Case C-355/13)

2013/C 260/49

Language of the case: Italian

Referring court

Commissione Tributaria Regionale dell’Umbria

Parties to the main proceedings

Applicant: Umbra Packaging srl

Defendant: Agenzia delle Entrate — Direzione Provinciale di Perugia

Questions referred

1.

Is Article 160 of Legislative Decree No 259/2003, which provides the basis for the government concession tax charged at the tariff indicated in Article 21 of [the Annex to] Presidential Decree No 641/1972, consistent with Article 3 of Directive 20/2002/EC, (1) which, within the liberalised system for communications, prohibits administrative authorities from having the power of control which is used to justify the charge imposed on service users?

2.

Is Article 3(2) of Ministerial Decree No 33/1990, which is referred to in the tariff indicated in Article 21 of [the Annex to] Presidential Decree No 641/1972, as amended by Article 3 of Legislative Decree No 151/1991, consistent with the system of free competition and the prohibition, laid down in Article 102 of the Treaty, of applying dissimilar conditions to equivalent transactions?

3.

Are the differing rates of the government concession tax imposed on domestic and business users and its being applied only to subscription agreements, not to pre-paid services, consistent with the criteria of reasonableness and appropriateness and do those differences not impede the creation of a competitive market?

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

7.9.2013   

EN

Official Journal of the European Union

C 260/28

Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 27 June 2013 — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others

(Case C-360/13)

2013/C 260/50

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Public Relations Consultants Association Ltd

Defendant: The Newspaper Licensing Agency Ltd and others

Questions referred

In circumstances where:

(i)

an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;

(ii)

copies of that web-page are automatically made on screen and in the internet ‘cache’ on the end-user’s hard disk;

(iii)

the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;

(iv)

the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;

(v)

the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and

(vi)

the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;

Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC (1)?

(1)  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 L 167, p. 10

7.9.2013   

EN

Official Journal of the European Union

C 260/28

Action brought on 26 June 2013 — European Commission v Slovak Republic

(Case C-361/13)

2013/C 260/51

Language of the case: Slovak

Parties

Applicant: European Commission (represented by: F. Schatz and A. Tokár, Agents)

Defendant: Slovak Republic

Form of order sought

—

Declare that, by refusing to grant the allowance by reason of birth provided for by Law No 592/2006 to persons entitled to it who reside in a Member State other than the Slovak Republic, the Slovak Republic has failed to fulfil its obligations under Articles 45 and 48 of the Treaty on the Functioning of the European Union and Article 7 of Regulation (EC) No 883/2004 (1) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.

—

order the Slovak Republic to pay the costs.

Pleas in law and main arguments

The allowance by reason of birth provided for by Law No 592/2006 is an old-age benefit within the meaning of Article 3(1)(d) of Regulation No 883/2004 which must also be granted to persons entitled to it who reside outside the Member State concerned (in the present case, the Slovak Republic). A provision of domestic law may not therefore limit the right to receive the allowance by reason of birth of those entitled to it who reside outside the Slovak Republic. The provision of the domestic law of the Slovak Republic which lays down such a limitation is therefore incompatible with Articles 45 and 48 TFEU and Article 7 of Regulation No 883/2004.

(1)  OJ 2004 L 166, p. 1.

7.9.2013   

EN

Official Journal of the European Union

C 260/29

Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 June 2013 — Maurizio Fiamingo v Rete Ferroviaria Italiana SpA

(Case C-362/13)

2013/C 260/52

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Appellant: Maurizio Fiamingo

Respondent: Rete Ferroviaria Italiana SpA

Questions referred

1.

Are the clauses of the framework agreement on fixed-term work implemented by Directive 1999/70 (1) applicable to maritime labour and, in particular, does clause 2(1) thereof also cover workers engaged for a fixed term on ferries making daily crossings?

2.

Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Article 332 of the Navigation Code) that provides that the ‘duration’ of the contract, rather than its ‘term’, is to be indicated, and is it compatible with that directive to provide for the duration of the contract by indicating a terminating point that is definite as regards the question whether it exists (‘a maximum of 78 days’) but indefinite as regards the question of when it occurs?

3.

Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Articles 325, 326 and 332 of the Navigation Code) in which the objective reasons for a fixed-term contract are expressed simply in terms of the voyage or voyages to be made, in essence equating the purpose of the contract (the service provided) with its cause (the reasons for fixing a term)?

4.

Does the framework agreement implemented by the directive preclude national legislation (in the present case the rules of the Navigation Code) that, in the event of the use of successive contracts (in such a way as to be considered abusive for the purposes of clause 5) excludes the transformation of those contracts into contracts of indefinite duration (as provided by Article 326 of the Navigation Code only in situations in which the seaman works continuously for more than a year and in situations in which the period between the ending of one contract and the drawing up of the following contract is no more than 60 days)?

(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

7.9.2013   

EN

Official Journal of the European Union

C 260/29

Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 June 2013 — Leonardo Zappalà v Rete Ferroviaria Italiana SpA

(Case C-363/13)

2013/C 260/53

Language of the case: Italy

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Appellant: Leonardo Zappalà

Respondent: Rete Ferroviaria Italiana SpA

Questions referred

1.

Are the clauses of the framework agreement on fixed-term work implemented by Directive 1999/70 (1) applicable to maritime labour and, in particular, does clause 2(1) thereof also cover workers engaged for a fixed term on ferries making daily crossings?

2.

Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Article 332 of the Navigation Code) that provides that the ‘duration’ of the contract, rather than its ‘term’, is to be indicated, and is it compatible with that directive to provide for the duration of the contract by indicating a terminating point that is definite as regards the question whether it exists (‘a maximum of 78 days’) but indefinite as regards the question of when it occurs?

3.

Does the framework agreement implemented by Directive 1999/70, in particular clause 3(1), preclude national legislation (Articles 325, 326 and 332 of the Navigation Code) in which the objective reasons for a fixed-term contract are expressed simply in terms of the voyage or voyages to be made, in essence equating the purpose of the contract (the service provided) with its cause (the reasons for fixing a term)?

4.

Does the framework agreement implemented by the directive preclude national legislation (in the present case the rules of the Navigation Code) that, in the event of the use of successive contracts (in such a way as to be considered abusive for the purposes of clause 5) excludes the transformation of those contracts into contracts of indefinite duration (as provided by Article 326 of the Navigation Code only in situations in which the seaman works continuously for more than a year and in situations in which the period between the ending of one contract and the drawing up of the following contract is no more than 60 days)?

(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

7.9.2013   

EN

Official Journal of the European Union

C 260/30

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 June 2013 — International Stem Cell Corporation v Comptroller General of Patents

(Case C-364/13)

2013/C 260/54

Language of the case: English

Referring court

High Court of Justice (Chancery Division)(United Kingdom)

Parties to the main proceedings

Applicant: International Stem Cell Corporation

Defendant: Comptroller General of Patents

Question referred

Are unfertilised human ova whose division and further development have been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings included in the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44/EC (1) on the Legal Protection of Biotechnological Inventions?

(1)  Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions

OJ L 213, p. 13

7.9.2013   

EN

Official Journal of the European Union

C 260/30

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 1 July 2013 — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Commerzbank AG

(Case C-366/13)

2013/C 260/55

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Profit Investment Sim SpA, in liquidation

Respondents: Stefano Ossi, Commerzbank AG

Questions referred

1.

Can the connecting link between different actions referred to in Article 6(1) of Regulation No 44/2001 (1) be said to exist where the subject-matter of the heads of claim put forward in those actions and the basis for the pleas in law raised therein are different and there is no relationship between them of subordination or logical and legal incompatibility, but the upholding of one of those actions is nonetheless potentially capable, in practice, of affecting the extent of the interest on the grounds of which the other action has been brought?

2.

Can the requirement that the agreement conferring jurisdiction be in written form, as laid down in Article 23(1)(a) of Regulation No 44/2001, be said to be satisfied where such an agreement is inserted into the document (Information Memorandum) that has been created unilaterally by a bond issuer, with the effect that the prorogation of jurisdiction is made applicable to disputes involving any future purchaser concerning the validity of those bonds? If not, can it be said that the insertion of that agreement into the document governing a bond issue which is intended for cross-border movement corresponds to a form which accords with usages in international trade or commerce within the terms of Article 23(1)(c) of that regulation?

3.

Should the expression ‘matters relating to a contract’, as used in Article 5(1) of Regulation No 44/2001, be understood to refer only to disputes in which the applicant intends to assert before the court the binding legal relationship arising from the contract and to disputes which are closely linked to that relationship, or must it be extended so as also to include disputes in which the applicant, far from invoking the contract, disputes the existence of a legally valid and binding contractual relationship and seeks to obtain a refund of the amount paid on the basis of a document which, in its view, is bereft of legal value?

(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).

7.9.2013   

EN

Official Journal of the European Union

C 260/30

Request for a preliminary ruling from the Commissione tributaria provinciale di Roma (Italy) lodged on 1 July 2013 — Pier Paolo Fabretti v Agenzia delle Entrate

(Case C-367/13)

2013/C 260/56

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Roma

Parties to the main proceedings

Applicant: Pier Paolo Fabretti

Defendants: Agenzia delle Entrate — Direzione Provinciale I di Roma — Ufficio Controlli

Question referred

Is it incompatible with Article 49 of the EC Treaty for persons resident in Italy to be required to declare for tax purposes, and be liable for tax on, winnings obtained from casinos in Member States of the European Union, as provided for by Article 67(1)(d) of Presidential Decree No 917 of 22.12.1986 (‘the TUIR’), or must this be regarded as justified on grounds of public policy, public security or public health, pursuant to Article 46 of the EC Treaty?

7.9.2013   

EN

Official Journal of the European Union

C 260/31

Request for a preliminary ruling from the Rechtbank Oost-Brabant 's-Hertogenbosch (Netherlands) lodged on 1 July 2013 — Criminal proceedings against N.F. Gielen and Others

(Case C-369/13)

2013/C 260/57

Language of the case: Dutch

Referring court

Rechtbank Oost-Brabant 's-Hertogenbosch

Parties to the main proceedings

N.F. Gielen, M.M.J. Geerings, F.A.C. Pruijmboom, A.A. Pruijmboom

Questions referred

1(a)

Can the chemical substance alpha-phenylacetoacetonitrile (CAS No 4468-48-8; further referred to as ‘APAAN’) be equated with the scheduled substance 1-phenyl-2-propanone (CAS No 103-79-7; further referred to as ‘BMK’)? In particular, the Rechtbank seeks clarification as to whether the Dutch term ‘bevatten’, the English term ‘containing’ and the French term ‘contenant’ should be interpreted as meaning that the substance BMK must, as such, already be present in the substance APAAN.

If Question 1(a) is answered in the negative, the Rechtbank wishes to submit the following supplementary questions to the Court of Justice under 1:

1(b)

Must APAAN be regarded, or must it not be regarded, as [one of the] ‘stoffen … die zodanig zijn vermengd dat genoemde stoffen niet gemakkelijk met eenvoudige of economisch rendabele middelen kunnen worden gebruikt of geëxtraheerd’, ‘[a substance] that [is] compounded in such a way that [it] cannot be easily used or extracted by readily applicable or economically viable means’ and ‘[une autre préparation] contenant des substances classifiées qui sont composées de manière telle que ces substances ne peuvent pas être facilement utilisées, ni extraites par des moyens aisés à mettre en oeuvre ou économiquement viables’? It appears from Annex 3 that, in the view of the police, a relatively straightforward, perhaps even simple, conversion process is involved.

1(c)

In answering Question 1(b), more particularly with regard to the use of ‘economisch rendabele middelen/economically viable means/[moyens] économiquement [viables]’, is it significant that in the conversion of APAAN to BMK — albeit by illegal means — very substantial amounts of money (can) apparently be made when the further processing of APAAN to BMK and/or amphetamine is successful and/or in the case of the (illegal) trade in the BMK obtained from APAAN?

2.

The term ‘operator’ is defined in Article 2(d) of Regulation No 273/2004 (1) and in Article 2(f) of Regulation No 111/2005. (2) In answering the following question, the Rechtbank requests that the Court of Justice proceed on the basis that what is under discussion here is a scheduled substance within the meaning of Article 2(a) or an equivalent substance within the terms of ‘Annex I: Scheduled substances within the meaning of Article 2(a)’ of the Regulations.

Should that term ‘operator also’ be understood to refer to a natural person who, whether or not with (an)other legal person(s) and/or natural person(s), (intentionally) has a scheduled substance in his possession without a licence, without there being any further suspicious circumstances?

(1)  Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors (OJ 2004 L 47, p. 1).

(2)  Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors (OJ 2005 L 22, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/31

Action brought on 2 July 2013 — European Commission v Hellenic Republic

(Case C-378/13)

2013/C 260/58

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and A. Alcover San Pedro)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by failing to take the necessary measures to comply with the judgment delivered by the Court of Justice on 6 October 2005 in Case C-502/03 Commission v Hellenic Republic, the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU;

—

order that the Commission be paid a proposed penalty payment in the sum of EUR 71 193,60 for each day of delay in complying with the judgment delivered in Case C-502/03, from the day on which judgment is delivered in the present case until the day on which the judgment delivered in Case C-502/03 has been complied with;

—

order that the Commission be paid the daily lump sum of EUR 7 786,80 per day from the day on which judgment was delivered in Case C-502/03 until the date on which judgment is delivered in the present case, or the date on which the judgment in Case C-502/03 is complied with if that occurs earlier;

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1.

In the judgment which it delivered on 6 October 2005 in Case C-502/03 Commission v Hellenic Republic, the Court of Justice:

‘1.

[declared] that, by failing to take all the measures necessary to ensure compliance with Articles 4, 8 and 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Hellenic Republic [had] failed to fulfil its obligations under that directive;

2.

[ordered] the Hellenic Republic to pay the costs.’

2.

Article 260(1) of the Treaty on the Functioning of the European Union provides that if the Court finds that a Member State has failed to fulfil an obligation arising from that Treaty, that State is required to take all the necessary measures to comply with the judgment.

3.

The Commission, after observing the pre-litigation procedure that is provided for in Article 260 TFEU, sent the Hellenic Republic a letter of formal notice and a supplementary letter of formal notice, by which it gave the Hellenic Republic the opportunity to submit its observations relating to achievement of the measures to comply with the aforesaid judgment.

4.

After analysing the Hellenic Republic's replies to those letters, and in particular the eight progress reports which the Hellenic Republic produced, the Commission established that the Hellenic Republic still has not taken all the necessary measures that are required in order to comply with the Court's judgment of 6 October 2005 in Case C-502/03, more than seven years after that judgment, and it decided to bring the action provided for in Article 260(2) TFEU.

7.9.2013   

EN

Official Journal of the European Union

C 260/32

Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-51/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

(Case C-379/13 P)

2013/C 260/59

Language of the case: Portuguese

Parties

Appellant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (represented by: N. Morais Sarmento and L. Pinto Monteiro, advogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—

set aside the judgment under appeal in its entirety;

—

annul the contested decision in its entirety;

—

order the Commission to bear its own costs in addition to those incurred by the appellant.

Grounds of appeal and main arguments

Failure to adopt a decision within a reasonable period of time

(i)   The proceedings are time-barred

The appellant submits that the contested decision was adopted after the four-year limitation period for proceedings, as set out in Article 3 of Council Regulation (EC, Euratom) No 2988/95, (1) had expired. Equally, even if there had been a possible interruption of the limitation period for proceedings, more than twice the limitation period had expired without any decision being taken in accordance with the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Since the corresponding right was thus time-barred, the contested decision should be declared unlawful and unenforceable.

(ii)   Infringement of the principle of legal certainty

The appellant considers that the fact that the Commission allowed more than 20 years to pass between the alleged irregularities and the adoption of the contested decision amounts to a failure to observe the principle of legal certainty. That fundamental principle of European Union law provides that all individuals have the right to have their cases dealt with by the European Union institutions within a reasonable period of time.

(iii)   Infringement of the rights of the defence

The appellant considers that its rights of defence have been infringed in so far as, given that more than 20 years had passed between the alleged irregularities and the adoption of the final decision, the appellant was deprived of its right to submit its observations in good time, namely at a point in time when it was still in possession of documents enabling it to justify the expenses which the Commission deemed ineligible.

(1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/33

Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-52/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

(Case C-380/13 P)

2013/C 260/60

Language of the case: Portuguese

Parties

Appellant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (represented by: N. Morais Sarmento and L. Pinto Monteiro, advogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—

set aside the judgment under appeal in its entirety;

—

annul the contested decision in its entirety;

—

order the Commission to bear its own costs in addition to those incurred by the appellant.

Grounds of appeal and main arguments

Failure to adopt a decision within a reasonable period of time

(i)   The proceedings are time-barred

The appellant submits that the contested decision was adopted after the four-year limitation period for proceedings, as set out in Article 3 of Council Regulation (EC, Euratom) No 2988/95, (1) had expired. Equally, even if there had been a possible interruption of the limitation period for proceedings, more than twice the limitation period had expired without any decision being taken in accordance with the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Since the corresponding right was thus time-barred, the contested decision should be declared unlawful and unenforceable.

(ii)   Infringement of the principle of legal certainty

The appellant considers that the fact that the Commission allowed more than 20 years to pass between the alleged irregularities and the adoption of the contested decision amounts to a failure to observe the principle of legal certainty. That fundamental principle of European Union law provides that all individuals have the right to have their cases dealt with by the European Union institutions within a reasonable period of time.

(iii)   Infringement of the rights of the defence

The appellant considers that its rights of defence have been infringed in so far as, given that more than 20 years had passed between the alleged irregularities and the adoption of the final decision, the appellant was deprived of its right to submit its observations in good time, namely at a point in time when it was still in possession of documents enabling it to justify the expenses which the Commission deemed ineligible.

(1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/33

Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-53/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

(Case C-381/13 P)

2013/C 260/61

Language of the case: Portuguese

Parties

Appellant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (represented by: N. Morais Sarmento and L. Pinto Monteiro, advogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—

set aside the judgment under appeal in its entirety;

—

annul the contested decision in its entirety;

—

order the Commission to bear its own costs in addition to those incurred by the appellant.

Grounds of appeal and main arguments

Failure to adopt a decision within a reasonable period of time

(i)   The proceedings are time-barred

The appellant submits that the contested decision was adopted after the four-year limitation period for proceedings, as set out in Article 3 of Council Regulation (EC, Euratom) No 2988/95, (1) had expired. Equally, even if there had been a possible interruption of the limitation period for proceedings, more than twice the limitation period had expired without any decision being taken in accordance with the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Since the corresponding right was thus time-barred, the contested decision should be declared unlawful and unenforceable.

(ii)   Infringement of the principle of legal certainty

The appellant considers that the fact that the Commission allowed more than 20 years to pass between the alleged irregularities and the adoption of the contested decision amounts to a failure to observe the principle of legal certainty. That fundamental principle of European Union law provides that all individuals have the right to have their cases dealt with by the European Union institutions within a reasonable period of time.

(iii)   Infringement of the rights of the defence

The appellant considers that its rights of defence have been infringed in so far as, given that more than 20 years had passed between the alleged irregularities and the adoption of the final decision, the appellant was deprived of its right to submit its observations in good time, namely at a point in time when it was still in possession of documents enabling it to justify the expenses which the Commission deemed ineligible.

(1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/34

Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 5 July 2013 — M.G., N.R.; other party: Staatssecretaris van Veiligheid en Justitie

(Case C-383/13)

2013/C 260/62

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellants: M.G.

N.R.

Other party: Staatssecretaris van Veiligheid en Justitie

Questions referred

1.

Does infringement by the national administrative authority of the general principle of respect for the rights of the defence, which is also given expression in Article 41(2) of the Charter of Fundamental Rights of the European Union, (1) in (the course of the preparation of) an extension decision within the terms of Article 15(6) of Directive 2008/115/EC (2) of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, automatically and in all cases mean that the detention must be lifted?

2.

Does that general principle of respect for the rights of the defence leave scope for a balancing of interests in which, in addition to the seriousness of the infringement of that principle and the interests of the foreign national adversely affected thereby, the interests of the Member State served by the extension of the detention measure are also taken into account?

(1)  OJ 2000 C 364, p. 1.

(2)  OJ 2008 L 348, p. 98.

7.9.2013   

EN

Official Journal of the European Union

C 260/34

Action brought on 5 July 2013 — European Commission v Republic of Cyprus

(Case C-386/13)

2013/C 260/63

Language of the case: Greek

Parties

Applicant: European Commission (represented by: P. Hetsch, K. Herrmann and M. Patakia)

Defendant: Republic of Cyprus

Form of order sought

—

declare that, by not adopting all the laws, regulations and administrative provisions that are necessary to comply with Directive 2009/28/EC (1) on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC (2) and 2003/30/EC (3) or, in any event, by not notifying those provisions to the Commission, the Republic of Cyprus has failed to fulfil its obligations under Article 27(1) of that directive;

—

impose upon the Republic of Cyprus, in accordance with Article 260(3) EC, a daily penalty payment of EUR 11 404,80 from the date of delivery of the Court’s judgment;

—

order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

1.

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 concerns the promotion of the use of energy from renewable sources and the amendment and subsequent repeal of Directives 2001/77/EC and 2003/30/EC. According to Article 1, the directive establishes a common framework for the promotion of energy from renewable sources. It sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport. It lays down rules relating to statistical transfers between Member States, joint projects between Member States and with third countries, guarantees of origin, administrative procedures, information and training, and access to the electricity grid for energy from renewable sources. It establishes sustainability criteria for biofuels and bioliquids.

2.

Under Article 27 of Directive 2009/28/EC, the Member States had to adopt the national provisions necessary to comply with the directive by 5 December 2010 and to communicate the measures adopted to the Commission; such communication constitutes an element inherent in the obligation to transpose European Union directives into domestic law and in the duty to cooperate in good faith, and this fact is also reflected in Article 260(3) TFEU.

3.

On the basis of the Cypriot authorities’ letters and the national measures communicated, during the pre-litigation procedure and before it was decided to bring the present action, the Commission established that the Republic of Cyprus had not adopted all the laws, regulations and administrative provisions necessary to bring the national framework fully into line with Directive 2009/28/EC, and it decided to bring an action before the Court pursuant to Article 258 TFEU in conjunction with Article 260(3) TFEU for a declaration that the Republic of Cyprus has failed to fulfil its obligations under Article 27(1) of that directive.

(1)  OJ 2009 L 140, p. 16.

(2)  OJ 2001 L 283, p. 33.

(3)  OJ 2003 L 123, p. 42.

7.9.2013   

EN

Official Journal of the European Union

C 260/35

Appeal brought on 8 July 2013 by the Hellenic Republic against the judgment of the General Court delivered on 17 May 2013 in Case T-294/11 Greece v Commission

(Case C-391/13 P)

2013/C 260/64

Language of the case: Greek

Parties

Appellant: The Hellenic Republic (represented by: I. Khalkias, Agent)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—

uphold the appeal;

—

set aside the judgment under appeal of the General Court of the European Union as more specifically requested;

—

order the European Commission to pay the costs.

Pleas in law and main arguments

By the first ground of appeal, in the sector of olive oil production, the Hellenic Republic submits that the judgment under appeal manifestly erred in law by reason of the misinterpretation and misapplication of the guidelines contained in the documents AGRI/VI/5330/1997, AGRI/17933/2000 and AGRI/61495/2002, then in force, since it regarded the manifest improvement of the control system in the sector of olive oil production in the 2004-2005 period, as compared with the 2003-2004 period, as repeat offending, continuing weaknesses and marked deterioration justifying an increased correction for the 2004/2005 period, although it was clearly inappropriate to increase the correction from the 10 % which was imposed for the 2003/2004 period to 15 % for the 2004/2005 period on the ground of repeat offending, given that there were numerous improvements (further updating of the Olive cultivation-GIS, improved on-the-spot checks and cross-checks which detect irregularities and impose penalties) which reinforced their control system.

By the second ground of appeal, in the sector of arable crops, it is claimed that:

1.

there is an infringement of European Union law and a breach of the principle of proportionality by reason of the misinterpretation and misapplication of the non-updated guidelines in respect of flat-rate corrections of the old CAP to the new CAP since the amounts of the flat-rate corrections related to different control rules and

2.

the statement of reasons in the judgment of the General Court is insufficient in so far as a comparison of the LPIS-GIS information which was taken into account for the 2007 reporting year with the information from the new and updated 2009 LPIS-GIS made it clear that the differences and deficiencies are minimal and did not exceed 2.4 % and consequently no reasons are stated to justify the 5 % correction, and further the material arguments of the Hellenic Republic on the quality of the administrative cross-checks were ignored.

7.9.2013   

EN

Official Journal of the European Union

C 260/36

Request for a preliminary ruling from the Juzgado de lo Social No 33, Barcelona (Spain) lodged on 9 July 2013 — Andrés Rabal Cañas v Nexea Gestión Documental, S.A., Fondo de Garantía Salarial

(Case C-392/13)

2013/C 260/65

Language of the case: Spanish

Referring court

Juzgado de lo Social No 33, Barcelona

Parties to the main proceedings

Applicant: Andrés Rabal Cañas

Defendants: Nexea Gestión Documental, S.A., Fondo de Garantía Salarial

Questions referred

1.

Given that it includes within its ambit all ‘dismissals effected by an employer for one or more reasons not related to the individual workers concerned’, according to the numerical threshold provided for, must the notion of ‘collective redundancies’ in Article 1(1)(a) of Directive 98/59 (1) be interpreted — in view of its Community scope — as prohibiting or precluding a national implementing or transposing provision that restricts the ambit of that notion solely to particular types of termination, namely, those based on ‘economic, technical, organisational or production grounds’, as Article 51(1) of the Workers’ Statute does?

2.

For the purposes of calculating the number of dismissals to be taken into account in order to determine whether it is a case of ‘collective redundancies’, as defined in Article 1(1) of Directive 98/59, in the form of either ‘dismissals effected by an employer’ (subparagraph (a)) or ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned. provided that there are at least five redundancies’ (subparagraph (b)), must account be taken of individual terminations by reason of the expiry of fixed-term contracts (on the basis of an agreed date, task or service), as referred to in Article 49(1)(c) of the Workers’ Statute?

3.

For the purposes of the rule on the non-application of Directive 98/59 laid down in Article [1(2)(a)] thereof, is the concept of ‘collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks’ defined exclusively by the strictly quantitative criterion in Article [1(1)(a)] or does it require the cause of the collective termination also to be derived from the same collective contractual framework for the same duration, service or task?

4.

Does the concept of ‘establishment’, as an essential Community law concept for the purposes of defining ‘collective redundancies’ in the context of Article 1(1) of Directive 98/59, and in view of the nature of the directive of a minimum standard as provided in Article 5 thereof, lend itself to an interpretation that allows the national provision implementing or transposing that text into the national legal order, Article 51(1) of the Workers’ Statute in the case of Spain, to relate the ambit of the calculation of the numerical threshold exclusively to the ‘undertaking’ as a whole, thereby excluding situations in which, had the ‘establishment’ been taken as the reference unit, the numerical threshold laid down in that article would have been exceeded?

(1)  Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16)

7.9.2013   

EN

Official Journal of the European Union

C 260/36

Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 11 July 2013 — Ministerstvo práce a sociálních věcí v K. B.

(Case C-394/13)

2013/C 260/66

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Ministerstvo práce a sociálních věcí

Other party to the proceedings: Mgr. K. B.

Questions referred

1.

Should Article 76 of Council Regulation (EEC) No 1408/71 (1) on the application of social security schemes to employed persons and their families moving within the Community be interpreted to mean that the Czech Republic is a state competent to provide a family benefit — the parental allowance — in circumstances such as those of the present case, i.e. where the applicant and her husband and child live in France, the husband works there, it is the place in which their interests are centred, and the applicant has drawn fully on the PAJE (prestation d’accueil du jeune enfant) family benefit in France?

If the answer to the first question is in the affirmative:

2.

Should the transitional provisions of Regulation (EC) No 883/2004 (2) of the European Parliament and of the Council on the coordination of social security systems be interpreted to mean that they require the Czech Republic to provide the family benefit after 30 April 2010 even though the competence of a state may be affected, as of 1 May 2010, by the new definition of residence under Regulation (EC) No 987/2009 (3) of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (Article 22 et seq.)?

If the answer to the first question is in the negative:

3.

Should Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems (in particular Article 87) be interpreted to mean that, in circumstances such as those of the present case, the Czech Republic is the state competent to provide a family benefit as of 1 May 2010?

(1)  OJ 1971 L 149, p. 2.

(2)  OJ 2004 L 166, p. 1.

(3)  OJ 2009 L 284, p. 1.

7.9.2013   

EN

Official Journal of the European Union

C 260/37

Request for a preliminary ruling from the Satakunnan käräjäoikeus (Finland) lodged on 12 July 2013 — Sähköalojen ammattiliitto ry v Elektrobudowa Spółka Akcyjna

(Case C-396/13)

2013/C 260/67

Language of the case: Finnish

Referring court

Satakunnan käräjäoikeus

Parties to the main proceedings

Applicant: Sähköalojen ammattiliitto ry

Defendant: Elektrobudowa Spółka Akcyjna

Questions referred

1.1

May a trade union acting in the interests of workers rely directly on Article 47 of the Charter of Fundamental Rights of the European Union as an immediate source of rights against a service provider from another Member State in a situation in which the provision claimed to be contrary to Article 47 (Article 84 of the Polish Labour Code) is a purely national provision?

1.2

Does it follow from European Union law, in particular the principle of effective legal protection apparent from Article 47 of the Charter of Fundamental Rights of the European Union and Articles 5, second paragraph, and 6 of Directive 96/71/EC, (1) interpreted in conjunction with the freedom of association in trade union matters protected by Article 12 of the Charter, in proceedings concerning claims which have become due for the purposes of that directive in the State in which the work is performed, that the national court must disapply a provision of the labour code of the workers’ home State which prevents the assignment of a pay claim to a trade union of the State in which the work is performed, if the corresponding provision of the State in which the work is performed permits the assignment of a pay claim which has become due and hence the status of claimant to a trade union of which all the workers who have assigned their claims are members?

1.3

Must the terms of Protocol No 30 annexed to the Treaty of Lisbon be interpreted as meaning that a national court situated in a country other than Poland or the United Kingdom must take them into account in the event that the dispute in question has a significant link with Poland, in particular where the law applicable to the contracts of employment is Polish law? In other words, does the Polish-British Protocol preclude the Finnish court from determining that the Polish laws, regulations or administrative provisions, practices or measures are contrary to the fundamental rights, freedoms and principles proclaimed in the Charter of Fundamental Rights of the European Union?

1.4

Must Article 14(2) of the Rome I Regulation be interpreted, having regard to Article 47 of the Charter of Fundamental Rights of the European Union, as prohibiting the application of national legislation of a Member State which contains a prohibition of the assignment of claims and demands arising from an employment relationship?

1.5

Must Article 14(2) of the Rome I Regulation be interpreted as meaning that the law applicable to the assignment of claims arising from a contract of employment is the law which applies to the contract of employment in question under the Rome I Regulation, regardless of whether the provisions of another law also affect the content of the individual claim?

1.6.

Is Article 3 of Directive 96/71, read in the light of Articles 56 and 57 TFEU, to be interpreted as meaning that the concept of minimum rates of pay covers basic hourly pay according to pay groups, job guarantee pay, holiday allowance, flat-rate daily allowance and compensation for daily travel-to-work time, as those terms of work are defined in a collective agreement declared universally applicable and falling within the scope of the annex to the directive?

1.6.1.

Must Articles 56 [and 57] TFEU and/or Article 3 of Directive 96/71/EC be interpreted as precluding Member States in their capacity as ‘host State’ from imposing, in their national legislation (a universally applicable collective agreement), on service providers from other Member States an obligation to pay compensation for travelling time and a daily allowance to employees posted to their territory, taking into account that under the national legislation referred to all posted workers are regarded as travelling to work for the whole period of their posting, which entitles them to compensation for travelling time and daily allowances?

1.6.2.

Must Articles 56 and 57 TFEU and/or Article 3 of Directive 96/71/EC be interpreted as not permitting the national court to decline to recognise a pay classification created and used in its home State by a company from another Member State, if that has been done?

1.6.3.

Must Articles 56 and 57 TFEU and/or Article 3 of Directive 96/71/EC be interpreted as permitting an employer from another Member State to determine, validly and so as to bind the court of the country in which the work is performed, the categorisation of employees in pay groups in a situation in which a universally applicable collective agreement in the country in which the work is performed requires a categorisation into pay groups with a different end result to be made, or may the Member State which is the host State to which the employees of a service provider from another Member State have been posted lay down rules to be observed by the service provider on the criteria for categorisation of employees into pay groups?

1.6.4.

When interpreting Article 3 of Directive 96/71/EC, read in the light of Articles 56 and 57 TFEU, are accommodation paid for by an employer who is obliged under a collective agreement mentioned in Question 6 and meal vouchers provided in accordance with a contract of employment by a service provider from another Member State to be regarded as compensation for expenses caused by being a posted worker or as part of the concept of minimum rates of pay within the meaning of Article 3(1)?

1.6.5.

May Article 3 of Directive 96/71/EC in conjunction with Articles 56 and 57 TFEU be interpreted as meaning that a universally applicable collective agreement of the State in which the work is performed must be regarded as justified on the ground of requirements of public policy, when interpreting the question of job-based pay, compensation for travelling time and daily allowances?

(1)  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).

7.9.2013   

EN

Official Journal of the European Union

C 260/38

Action brought on 17 July 2013 — European Commission v Romania

(Case C-405/13)

2013/C 260/68

Language of the case: Romanian

Parties

Applicant: European Commission (represented by: P. Hetsch. O. Beynet and L. Nicolae, acting as Agents)

Defendant: Romania

Form of order sought

—

Declare that by failing to adopt all the laws, regulations and administrative provisions necessary for the transposition of the provisions in Article 2(1), Article 3(5)(b), (7), (8) and (9)(c), Article 5, Article 7(4), Article 9(1) to (7), Article 10(2) and (5), Article 11(8), Article 13(4) and (5)(b), Article 16(1) and (2), Article 25(1), Article 26(2)(c), Article 31(3), Article 34(2), Article 37(1)(k), (p) and (q), (3)(b) and (d) and (10) to (12), Article 38(1), Article 39(1), (4) and (8) and point I of Annex I to Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, (1) or in any event failing to notify such measures to the European Commission, Romania has failed to fulfil its obligations under Article 49(1) of the directive;

—

order Romania, in accordance with Article 260(3) TFEU, to pay a penalty of EUR 30 228,84 for each day of delay in complying with its obligation to communicate the measures necessary for the transposition of Directive 2009/72/EC, with effect from the day on which judgment is delivered in the present case;

—

order Romania to pay the costs.

Pleas in law and main arguments

The period for the transposition of the directive into national law expired on 3 March 2011.

(1)  OJ 2009 L 211, p. 55.

7.9.2013   

EN

Official Journal of the European Union

C 260/39

Action brought on 17 July 2013 — European Commission v Romania

(Case C-406/13)

2013/C 260/69

Language of the case: Romanian

Parties

Applicant: European Commission (represented by: P. Hetsch, O. Beynet and L. Nicolae, acting as Agents)

Defendant: Romania

Form of order sought

—

Declare that by failing to adopt all the laws, regulations and administrative provisions necessary for the transposition of the provisions in Article 3(3) and (4), Article 4(2), Article 8, Article 9(1) to (7), Article 10(2) and (5), Article 13(1) and (5), Article 14(4) and (5)(b), Article 16(1), Article 25(5), Article 36(9)(3), Article 41(1)(d), (g) and (q), (3)(b) and (d), (6)(a) and (c), and (10) to (12), Article 42(1), Article 43(1), (4) and (8) and point 1 in Annex I to Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, (1) or in any event failing to notify such measures to the European Commission, Romania has failed to fulfil its obligations under Article 54(1) of the directive;

—

order Romania, in accordance with Article 260(3) TFEU, to pay a penalty of EUR 30 228,84 for each day of delay in complying with its obligation to communicate the measures necessary for the transposition of Directive 2009/73/EC, with effect from the day on which judgment is delivered in the present case;

—

order Romania to pay the costs.

Pleas in law and main arguments

The period for the transposition of the directive into national law expired on 3 March 2011.

(1)  OJ 2009 L 211, p. 94.

7.9.2013   

EN

Official Journal of the European Union

C 260/39

Appeal brought on 19 July 2013 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 14 May 2013 in Case T-249/11 Sanco v OHIM — Marsalman (representation of a chicken)

(Case C-411/13 P)

2013/C 260/70

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings: Sanco, SA

Form of order sought

The appellant claims that the Court should:

—

set aside the judgment under appeal;

—

deliver a fresh judgment on the substance of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

—

order the applicant in the proceedings before the General Court to pay the costs.

Pleas in law and main arguments

1.

The General Court infringed Article 8(1)(b) CTMR (1) since it took as its basis an incorrect interpretation of the scope of the services covered by the trade mark applied for in Classes 35 and 39 of the Nice Classification. The analysis of the similarity of the goods and services is incorrect because the General Court did not take into account that the activities which an operator offers for its own account in relation to its own goods are not included among the services covered by the trade mark applied for. The question whether such services, within the meaning of the Nice Classification, have to be supplied on behalf of third parties is a question of law which must be clarified by the Court of Justice.

2.

The General Court infringed Article 8(1)(b) CTMR since it examined the complementarity of goods and services by reference to the importance of a product or a service ‘for the purchase’ of another product or service from the point of view of the relevant public. The General Court failed to consider whether the complementarity of the goods and services is based on an interaction which is such that their use in conjunction with one another is, in strictly objective terms, necessary or desirable.

3.

The General Court infringed Article 8(1)(b) CTMR in concluding that certain complementary goods and services are automatically similar, despite the low degree of similarity in question, without ascertaining whether the differences arising from other factors were such as to neutralise that complementarity.

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

7.9.2013   

EN

Official Journal of the European Union

C 260/40

Appeal brought on 26 July 2013 by the Kingdom of Spain against the judgment of the General Court (First Chamber) delivered on 29 May 2013 in Case T-384/10 Kingdom of Spain v European Commission

(Case C-429/13 P)

2013/C 260/71

Language of the case: Spanish

Parties

Appellant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—

in any event, uphold the appeal and set aside in part the judgment of the General Court of 29 May 2013 in Case T-384/10 Kingdom of Spain v European Commission;

—

annul in part, as set out, Commission Decision C(2010) 4147 of 30 June 2010, reducing the assistance granted from the Cohesion Fund to the following (groups of) projects: ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133), ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.16.C.PE.066) and ‘Water supply to multi-municipal systems in the provinces of Granada and Málaga’ (2002.ES.16.C.PE.061); and

—

in any event, order the European Commission to pay the costs.

Grounds of appeal and main arguments

The appellant alleges that the General Court committed an error of law in considering that any network constitutes a ‘work’ within the meaning of Article 1(c) of Council Directive 93/37/EEC (1) of 14 June 1993 concerning the coordination of procedures for the award of public works contracts.

The appellant further submits that the judgment under appeal departs from the case-law (Case C-16/98 Commission v France [2000] ECR I-8315) in failing to take account of the need for geographical continuity of the works taken as a whole and of the interdependence between them, namely, the interconnectivity required for the provision of services.

(1)  OJ 1993 L 199, p. 54

General Court

7.9.2013   

EN

Official Journal of the European Union

C 260/41

Order of the General Court of 4 July 2013 — Just Music Fernsehbetriebs GmbH v OHIM — France Télécom (Jukebox)

(Case T-589/10) (1)

(Community trade mark - Opposition proceedings - Revocation of the earlier Community mark - No need to adjudicate)

2013/C 260/72

Language of the case: English

Parties

Applicant: Just Music Fernsehbetriebs GmbH (Landshut, Germany) (represented by: T. Kaus, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: France Télécom (Paris, France) (represented by: C. Bertheux Scotte, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 October 2010 (Case R 1408/2009-1), concerning opposition proceedings between France Télécom and Just Music Fernsehbetriebs GmbH.

Operative part

1.

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

2.

Just Music Fernsehbetriebs GmbH and France Télécom shall bear their own costs and shall each pay half of the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

(1)  OJ C 72, 5.3.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/41

Order of the General Court of 8 July 2013 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active)

(Case T-414/11) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2013/C 260/73

Language of the case: German

Parties

Applicant: Nutrichem Diät + Pharma GmbH (Roth, Germany) (represented by: D. Jochim and R. Egerer, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Compagnie Gervais Danone (Levallois Perret, France) (represented by: M. de Justo Bailey, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 4 May 2011 (Case R 683/2010-1), concerning opposition proceedings between Nutrichem Diät + Pharma GmbH and Compagnie Gervais Danone.

Operative part of the order

1.

There is no further need to adjudicate on the action.

2.

The applicant and the intervener are ordered to bear their own costs and each pay half the costs of the defendant.

(1)  OJ C 298, 8.10.2011.

7.9.2013   

EN

Official Journal of the European Union

C 260/42

Order of the President of the General Court of 5 July 2013 — Zweckverband Tierkörperbeseitigung v Commission

(Case T-309/12 R)

(Interim measures - Payment of contributions to an association governed by public law - State aid - Obligation to recover - Application to suspend enforcement - Urgency)

2013/C 260/74

Language of the case: German

Parties

Applicant: Zweckverband Tierkörperbeseitigung in Rhineland-Palatinate, Saarland, Rheingau-Taunus-Kreis and Landkreis Limburg-Weilburg (Rivenich, Germany) (represented by: A. Kerkmann, lawyer)

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

Interveners in support of the defendant: Saria Bio Industries AG & Co. KG (Selm, Germany); SecAnim GmbH (Lünen, Germany); and Knochen- und Fett-Union (KFU) GmbH (Selm) (represented by: U. Karpenstein and C. Johann, lawyers)

Re:

Application for suspension of enforcement of Commission Decision (2102/485/EU) of 25 April 2012 on State aid SA.25051 (C 19/10) (ex NN 23/2010) granted by Germany to the Zweckverband Tierkörperbeseitigung in Rhineland-Palatinate, Saarland, Rheingau-Taunus-Kreis and Landkreis Limburg-Weilburg (OJ 2012 L 236, p. 1).

Operative part of the order

1.

The application for interim measures is dismissed.

2.

Costs are reserved.

7.9.2013   

EN

Official Journal of the European Union

C 260/42

Order of the President of the General Court of 17 July 2013 — Borghezio v Parliament

(Case T-336/13 R)

(Interim relief - European Parliament - Measure excluding a Member of Parliament from his political group - Application to suspend enforcement - Manifest inadmissibility of the main action - Inadmissibility of the application - Lack of urgency)

2013/C 260/75

Language of the case: French

Parties

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

Defendant: European Parliament (represented by: N. Lorenz, N. Görlitz and M. Windisch, acting as Agents)

Re:

Application to suspend the enforcement of the measure 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 a non-attached member and is thus excluded from the political group ‘Europe of Freedom and Democracy’ as from that date.

Operative part of the order

1.

The application for interim relief is rejected.

2.

Costs are reserved.

7.9.2013   

EN

Official Journal of the European Union

C 260/42

Action brought on 27 June 2013 — Groupe Léa Nature/OHIM — Debonaire Trading (SO'BiO ētic)

(Case T-341/13)

2013/C 260/76

Language in which the application was lodged: English

Parties

Applicant: Groupe Léa Nature (Périgny, France) (represented by: S. Arnaud, lawyer)

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

Other party to the proceedings before the Board of Appeal: Debonaire Trading Internacional, Lda (Funchal, Portugal)

Form of order sought

The applicant claims that the Court should:

—

Declare the application admissible;

—

Annul decision R 203/2011-1 of the First Board of Appeal for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 March 2013, notified 18 April 2013;

—

Order DEBONAIRE TRADING INTERNACIONAL LDA and OHIM each to bear the costs, which they have incurred in the course of the proceedings before the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SO’Bio ētic’, for goods in classes 3, 24 and 25 — Community trade mark application No 6 827 281

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 registrations and United Kingdom trade mark registrations of the word mark ‘SO…?’et al., for goods in classes 3 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 with respect to all goods claimed in classes 3 and 25

Pleas in law: Infringement of Article 8 (1)(b) and (5) of CTMR.

7.9.2013   

EN

Official Journal of the European Union

C 260/43

Action brought on 28 June 2013 — Out of the blue/OHIM — Dubois et al. (FUNNY BANDS)

(Case T-344/13)

2013/C 260/77

Language in which the application was lodged: English

Parties

Applicant: Out of the blue KG (Lilienthal, Germany) (represented by: G. Hasselblatt and D. Kipping, lawyers)

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

Other party to the proceedings before the Board of Appeal: Frédéric Dubois et al. (Lasne, Belgium)

Form of order sought

The applicant claims that the Court should:

—

Overturn the Decision of the Second Board of Appeal of 4 April 2013, Case R 542/2012-2;

—

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

—

In the event that Mr. DUBOIS joins in these proceedings as an intervening party, order the intervening party to bear its own costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark containing the word element ‘FUNNY BANDS’ for goods and services in classes 14, 17 and 35 — Community trade mark application No 9 350 794

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

Mark or sign cited in opposition: German non-registered sign ‘FUNNY BANDS’ several goods and services and activities

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

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

7.9.2013   

EN

Official Journal of the European Union

C 260/43

Action brought on 4 July 2013 — Zentralverband des Deutschen Bäckerhandwerks v Commission

(Case T-354/13)

2013/C 260/78

Language of the case: German

Parties

Applicant: Zentralverband des Deutschen Bäckerhandwerks e.V. (Berlin, Germany) (represented by: I. Jung, M. Teworte-Vey, A. Renvert and J. T. Saatkamp, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul the defendant’s decision of 8 April 2013 in the cases ‘Kołocz śląski/Kołacz śląski’ — Schlesischer Streuselkuchen (Ref. Ares [2013] 619104 — 10 April 2013).

Pleas in law and main arguments

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

1.

First plea in law: incorrect legal basis

—

The applicant claims that the defendant erred in law in basing its decision concerning the applicant’s request for cancellation of the registration of ‘Kołocz śląski/Kołacz śląski’ as a protected geographical indication on the new version of Regulation (EU) No 1151/2012, (1) in force at the time of the defendant’s decision, instead of on the old Regulation (EC) No 510/2006, (2) in force at the time when the applicant submitted its request. The defendant thereby infringed the principle of tempus regit actum.

—

The applicant further claims that the request for cancellation of the registration under Regulation No 510/2006 is admissible and well founded. In this connection, it maintains, inter alia, that there are two grounds for cancellation (the generic nature of the contested indication within the meaning of Article 3(1) of Regulation No 510/2006, and the erroneous delimitation of the geographic zone of Silesia in the registration specifications) for the purpose of Article 12(2) of Regulation No 510/2006, and that any different interpretation and application of that provision would infringe the fundamental rights of bakeries in the Federal Republic of Germany.

2.

Second plea in law: breach of Regulation No 1151/2012

—

The applicant claims that its request would be admissible and well founded even if it were assessed on the basis of Regulation No 1151/2012.

(1)  Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).

(2)  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

7.9.2013   

EN

Official Journal of the European Union

C 260/44

Action brought on 4 July 2013 — easyJet Airline v Commission

(Case T-355/13)

2013/C 260/79

Language of the case: English

Parties

Applicant: easyJet Airline Co. Ltd (London, United Kingdom) (represented by: M. J. Werner and R. Marian, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

Declare void the Commission’s decision C(2013) 2727 final of 3 May 2013 in Case COMP/39.869 — easyJet/Schiphol; and

—

Order the defendant to bear the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the contested decision is vitiated by an error of law (misinterpretation of the provisions of Article 13 of Council Regulation (EC) No 1/2003 (1)) combined with manifest error of assessment (erroneous conclusion that the national proceedings in the Netherlands equated to a national competition authority having dealt with the case).

2.

Second plea in law, alleging that the contested decision infringes an essential procedural requirement, namely the failure to give adequate statements for the reasons for its rejection. In addition, the Commission has not considered all the matters of fact and of law which the applicant brought to its attention.

(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 2003 L 1, p. 1)

7.9.2013   

EN

Official Journal of the European Union

C 260/44

Action brought on 5 July 2013 — European Space Imaging v Commission

(Case T-357/13)

2013/C 260/80

Language of the case: German

Parties

Applicant: European Space Imaging GmbH (Munich, Germany) (represented by: W. Trautner, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the decision notified by letter of 5 June 2013 concerning the annulment of the restricted procedure;

—

annul the decision notified by letter of 5 June 2013 to hold a new procurement procedure by way of an open procedure;

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging breach of the principle of proportionality

The applicant claims that, by annulling the procurement procedure for the supply of satellite remote sensing data and associated services in support of checks within the common agricultural policy (OJ 2012/S 183 299769), the Commission has infringed the principle of proportionality laid down in Article 89(1) of the Financial Regulation. (1) The applicant claims in that connection, inter alia, that the Commission’s course of action runs counter to the general principle that the annulment of a procurement procedure should be a measure of last resort (‘ultima ratio’). The applicant is of the view that the Commission ought to have requested candidates to submit specific offers before it could decide that in fact no economic offer would be considered.

2.

Second plea in law, alleging breach of the principle of transparency

The applicant claims in this plea that by refusing to give specific information on the grounds for annulling the procurement procedure, the Commission infringed the principle of transparency laid down in Article 89(1) of the Financial Regulation. In particular, the applicant is not able to ascertain whether the grounds alleged are applicable. The applicant moreover claims that the highly specialised nature of the relevant market for the supply of satellite remote sensing data means that the number of potential tenderers is very limited and alleges that, prior to its decision to annul the procurement procedure, the Commission failed to make it known that there was a possibility that the procedure would be annulled if a given number of applicants was not reached.

(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 L 248, 16.9.2002, p. 1).

7.9.2013   

EN

Official Journal of the European Union

C 260/45

Action brought on 8 July 2013 — VECCO and Others v Commission

(Case T-360/13)

2013/C 260/81

Language of the case: English

Parties

Applicants: Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO) (Memmingen, Germany) and 185 others (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

Declare the application admissible and well-founded;

—

Declare that Commission Regulation (EU) No 348/2013 of 17 April 2013 Amending Annex XIV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2013 L 108, p. 1) is partially unlawful as it is based on a manifest error of assessment and violates Article 58(2) of REACH, the principle of proportionality and the right of defence (including the principles of sound administration and excellence of scientific advice);

—

Partially annul the Commission Regulation (EU) No 348/2013 insofar as it does not contain in its Annex at row 16, fifth column, under the title ‘Exempted categories of use’, the following exemption: ‘use of chromium trioxide for production purposes in aqueous solution, thereby complying with an exposure value of maximum 5μg/m3 (or 0,005 mg/m3)’ or similar language aimed at exempting the ‘use of chromium trioxide in electroplating, etching processes, electropolishing and other surface treatment processes and technologies as well as mixing,’ or words to that effect from the scope of the contested act;

—

Order the defendant to amend Commission Regulation (EU) No 348/2013 so as to comply with the Court’s judgment; and

—

Order the defendant to pay all costs and expenses of these proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging that Commission Regulation (EU) No 348/2013 is unlawful as it is based on a number of manifest errors of appraisal and must be annulled insofar as it does not contain an exemption from authorisation in respect of the use of chromium trioxide in the chromium plating industry.

2.

Second plea in law, alleging that Commission Regulation (EU) No 348/2013 is based on an underlying assessment of occupational risk related to the use of chromium trioxide in chromium plating that is scientifically and legally flawed (manifest error of appraisal).

3.

Third plea in law, alleging Commission Regulation (EU) No 348/2013 infringes Article 58(2) of REACH and the principle of proportionality.

4.

Fourth plea in law, alleging that the applicants were not granted access to key documents that formed the basis of the Commission Regulation (EU) No 348/2013 and therefore the defendant infringed the applicants’ rights of defence and principles of sound administration and excellence of scientific advice.

7.9.2013   

EN

Official Journal of the European Union

C 260/46

Action brought on 9 July 2013 — Menelaus/OHIM — Garcia Mahiques (VIGOR)

(Case T-361/13)

2013/C 260/82

Language in which the application was lodged: English

Parties

Applicant: Menelaus BV (Amsterdam, Netherlands) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

Other party to the proceedings before the Board of Appeal: V. Garcia Mahiques (Jesus Pobre, Spain), F. Garcia Mahiques (Jesus Pobre, Spain)

Form of order sought

The applicant claims that the Court should:

—

Annul the decision of defendant’s Second Board of Appeal of 23 April 2013, in Case R 88/2012-2, to the extent that it annulled the decision of the Office’s Cancellation Division of 11 November 2011 in Case 5061;

—

Dissmiss the appeal of the other party against the decision of the Cancellation Division of 10 November 2011 in Case C 5061;

—

Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal

—

In case the other party intervenes in this case, order Mr Vicente Garcia Mathiques and Mr Felipe Garcia Mahiques to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘VIGOR’– Community trade mark registration No 4 386 371

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 8(1)(b), in conjunction with Article 53(1)(a) of Council Regulation No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity

Decision of the Board of Appeal: Upheld the appeal in part and annulled the contested decision to the extent that it rejected the application for invalidity as regards certain goods in class 21 and dismissed the appeal for the remainder

Pleas in law: Infringement of Rules 22(4) and Rules 79 to 82 of Commission Regulation No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (CTMIR); Article 57(2) CTMR in conjunction with Article 15 (1)(a) CTMR; Article 57(2) CTMR in conjunction with Article 15(1)(a) CTMR and Article 75 CTMR; Article 56(1)(b) in conjunction with Article 41(1) CTMR; and Article 57(2) and (3) and Article 76(2) in conjunction with Rules 40 and 22 CTMR.

7.9.2013   

EN

Official Journal of the European Union

C 260/46

Action brought on 12 July 2013 — Mocek et Wenta/OHIM — Lacoste (KAJMAN)

(Case T-364/13)

2013/C 260/83

Language in which the application was lodged: English

Parties

Applicants: Eugenia Mocek (Chojnice, Poland) and Jadwiga Wenta (Chojnice, Poland) (represented by: K. Grala, lawyer)

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

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

Form of order sought

The applicants claim 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 10 May 2013 in Case R 2466/2010-4 and grant protection to the trade mark applied for for all the goods covered by the application;

—

Order the defendant to bear the costs of the proceedings before the Court, including the expenses of the applicant, as well as the necessary costs incurred by the applicant in connection with the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicants

Community trade mark concerned: The figurative mark claiming the colours green, white and grey containing the word element ‘KAJMAN’ placed between the back and the head of a crocodile for goods and services in classes 18, 20, 22, 25 and 36 — Community trade mark registration No 5 686 845

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 in black and white presenting a crocodile and the word mark ‘CROCODILE’ for goods and services in classes 16, 18, 20, 24, 25 and 36

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Annulled the contested decision insofar as the opposition was rejected for certain goods in classes 18 and 25, and rejected the contested Community trade mark application for these goods

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

7.9.2013   

EN

Official Journal of the European Union

C 260/47

Action brought on 15 July 2013 — Republic of Poland v European Commission

(Case T-367/13)

2013/C 260/84

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: B. Majczyna, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul Commission Implementing Decision 2013/214/EU of 2 May 2013 (notified under document C(2013) 2436) on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it excludes from European Union financing the amounts of EUR 8 292 783,94 and EUR 71 610 559,39 in expenditure incurred by the payment agency accredited by the Republic of Poland;

—

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

Pleas in law and main arguments

In support of its action the applicant raises three pleas in law.

1.

The first plea in law concerns a breach of the first subparagraph of Article 7(4) of Regulation (EC) No 1258/1999 and of Article 31(1) of Regulation (EC) No 1290/2005 by reason of the application of a financial correction based on erroneous determinations of fact and a misinterpretation of law, notwithstanding the fact that the expenditure was effected by the Polish authorities in compliance with the provisions of European Union law

In the context of this plea in law, the applicant expresses the view that the correction applied was, in the light of the position taken by the Commission, attributable to five alleged failings in the completion of the measure relating to ‘Support for semi-subsistence farms’. The first failing concerned a breach of the alleged requirement that the beneficiary should provide at least 50 % of the funds for supporting restructuring activities. The second failing related to non-performance of cross-control of farm animals in the context of the administrative monitoring of the initial request in regard to the correctness of the economic size unit (ESU) indicated by the farmer. The third failing related to a breach of an alleged requirement that an on-site inspection be effected in the first year in which the programme is carried out. The fourth failing, in the view of the Commission, lay in the absence of an appropriate connection between intermediate objectives and agricultural requirements. By contrast, the fifth failing concerned a breach of the alleged requirement that a quantitative definition of intermediate objectives be provided. The applicant takes issue with the Commission’s interpretation of the law and its determination of the facts in relation to each of the alleged failings mentioned above.

2.

The second plea in law concerns a breach of essential procedural requirements by reason of the application of a financial correction method which was flagrantly at variance with the fourth subparagraph of Article 7(4) of Regulation (EC) No 1258/1999 and Article 31(2) of Regulation (EC) No 1290/2005, together with Guidelines No VI/5330/97

The applicant submits in this regard that the Commission adopted a correction method that is contrary to European Union law and also at variance with Guidelines No VI/5330/97. Furthermore, the applicant believes that the bilateral procedure did not make it possible for the Polish authorities to carry out any kind of verification of the appraisal of the established incompatibilities, as it was only after the bilateral procedure had been completed that the Commission took steps to conclude the appraisal. On that basis, the applicant submits that the financial correction was applied by the Commission in a manner which seriously breached the procedure for clearing the accounts.

3.

The third plea in law concerns a breach of the second paragraph of Article 296 TFEU on the ground that the contested decision is inadequately reasoned

The applicant criticises the Commission on the ground that, under the contested decision, the Polish authorities were not closely involved in the decision-making process as the Commission presented its position of principle only after bilateral consultation. The Commission did not adduce any evidence and failed to provide grounds for its findings of law and fact, which it adopted as the basis for the financial correction applied.

(1)  OJ 2013 L 123, 4.5.2013, p. 11.

7.9.2013   

EN

Official Journal of the European Union

C 260/48

Action brought on 16 July 2013 — Boehringer Ingelheim International/OHIM — Lehning entreprise (ANGIPAX)

(Case T-368/13)

2013/C 260/85

Language in which the application was lodged: English

Parties

Applicant: Boehringer Ingelheim International GmbH (Ingelheim am Rhein, Germany) (represented by: V. von Bomhard and D. Slopek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Lehning entreprise SARL (Sainte Barbe, France)

Form of order sought

The applicant claims that the Court should:

—

Annul OHIM’s Fifth Board of Appeal’s decision of 29 April 2013 in Case R 571/2012-5 insofar as it allowed registration of the mark ANGIPAX in respect of pharmaceutical and veterinarian products and preparations for health and medical care; fungicides; dietetic substances adapted for medical use; disinfectants; surgical dressings and materials for dressing, materials for stopping teeth, preparations for destroying vermin; food for babies; and

—

Order that the costs of the proceedings be borne by the defendant, or — in the event that the other party before the Boards of Appeal intervenes on the side of the defendant — that they be borne jointly by the defendant and the intervener.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘ANGIPAX’ for goods in class 5 — Community trade mark application No 8 952 401

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

Mark or sign cited in opposition: The word mark ‘ANTISTAX’ — Community trade mark registration No 2 498 343 for goods in classes 3, 5, 28 and 30

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

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

7.9.2013   

EN

Official Journal of the European Union

C 260/48

Action brought on 18 July 2013 — Versorgungswerk der Zahnärztekammer Schleswig Holstein v ECB

(Case T-376/13)

2013/C 260/86

Language of the case: German

Parties

Applicant: Versorgungswerk der Zahnärztekammer Schleswig Holstein (Kiel, Germany) (represented by: O. Hoepner, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—

annul the defendant’s decision of 16 April 2013 in the version of the decision of 22 May 2013 (LS/MD/13/313) in so far as the request for access to Annexes A and B to the ‘Exchange Agreement dated 15. February 2012 among the Hellenic Republic and the European Central Bank and the Eurosystem NBCs listed herein’ was not granted;

—

order the defendant to pay the costs;

Pleas in law and main arguments

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

1.

First plea in law, alleging that the basis of the Decision is illegal

The applicant claims that, by its Decision ECB/2011/6, (1) the ECB materially extended the scope of the refusal grounds set out in Article 4(1)(a) of Decision ECB/2004/3 (2) without sufficient authorisation.

2.

Second plea in law, alleging breach of essential procedural requirements

In this plea, the applicant claims that the contested decision infringes essential procedural requirements. In that connection, the applicant states that, in the light of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, the requirements of the obligation to state reasons laid down in Article 296(2) TFEU are set high and that the recitals in the preamble to the contested decision of the defendant do not satisfy the requirements laid down by the European Court of Justice.

3.

Third plea in law, alleging breach of substantive law

In this plea, the applicant alleges breach of substantive law, since, as a result of its inadequate statement of reasons, the contested decision infringes the applicant’s right to access to documents pursuant to Article 42 of the Charter of Fundamental Rights of the European Union and Article 15(3) TFEU. Moreover, the refusal of access is disproportionate.

(1)  2011/342/EU: Decision of the European Central Bank of 9 May 2011 amending Decision ECB/2004/3 on public access to European Central Bank documents (ECB/2011/6) (OJ 2011 L 158, p. 37).

(2)  2004/258/EC: Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).

7.9.2013   

EN

Official Journal of the European Union

C 260/49

Action brought on 17 July 2013 — ultra air GmbH v OHIM — Donaldson Filtration Deutschland (ultra.air ultrafilter)

(Case T-377/13)

2013/C 260/87

Language in which the application was lodged: German

Parties

Applicant: ultra air GmbH (Hilden, Germany) (represented by: C. König, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal: Donaldson Filtration Deutschland GmbH

Form of order sought

The Applicant claims that the Court should:

—

Set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 May 2013 in Case R 1100/2011-4;

—

Order OHIM, and Donaldson Filtration Deutschland GmbH should it participate in the proceedings, to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘ultra.air ultrafilter’ for goods and services in Classes 7, 9, 11, 37 and 42 — Community trade mark No 7 480 585

Proprietor of the Community trade mark: Applicant

Applicant for the declaration of invalidity of the Community trade mark: Donaldson Filtration Deutschland GmbH

Grounds for the application for a declaration of invalidity: Absolute ground of invalidity under Article 52(1)(a) of Regulation No 207/2009

Decision of the Cancellation Division: Application for declaration of invalidity dismissed

Decision of the Board of Appeal: Appeal allowed; Community trade mark declared invalid

Pleas in law:

 

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

 

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

 

Infringement of Article 75(2) of Regulation No 207/2009;

 

Infringement of Article 75(1) of Regulation No 207/2009

7.9.2013   

EN

Official Journal of the European Union

C 260/49

Action brought on 23 July 2013 — Apple and Pear Australia and Star Fruits Diffusion v OHIM — Carolus C. (English pink)

(Case T-378/13)

2013/C 260/88

Language of the case: French

Parties

Applicants: Apple and Pear Australia Ltd (Victoria, Australia) and Star Fruits Diffusion (Caderousse, France) (represented by: T. de Haan and P. Péters, lawyers)

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

Other party to the proceedings before the Board of Appeal: Carolus C. BVBA (Nieuwerkerken, Belgium)

Form of order sought

—

First, alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 May 2013 in Case R 1215/2011-4 to the effect that the action brought by the applicants before the Board of Appeal is well founded and, consequently, that the opposition filed by the applicants should be upheld;

—

In the alternative, annul in its entirety the decision of the Fourth Board of Appeal of OHIM of 29 May 2013 in Case R 1215/2011-4; and

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Carolus C.

Community trade mark concerned: Word mark ‘English pink’ for goods in Class 31 — Application for Community trade mark No 8 610 768

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

Mark or sign cited in opposition: Word mark ‘PINK LADY’ and figurative marks containing the word elements ‘Pink lady’ for goods in Classes 16, 29, 30, 31 and 32

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

—

Infringement of the principle of res judicata;

—

Infringement of the general principles of legal certainty, sound administration and protection of legitimate expectations;

—

Infringement of Article 75 of Regulation No 207/2009;

—

Infringement of Article 76 of Regulation No 207/2009;

—

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

—

Infringement of Article 8(5) of Regulation No 207/2009.

7.9.2013   

EN

Official Journal of the European Union

C 260/50

Action brought on 22 July 2013 — Innovation First/OHIM (NANO)

(Case T-379/13)

2013/C 260/89

Language of the case: English

Parties

Applicant: Innovation First, Inc. (Greenville, United States) (represented by: J. Zecher, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—

Annul the decision of the First Board of Appeal of the defendant of April 19, 2013 in the matter R 1271/2012-1;

—

Order the defendant to pay the costs of the proceedings, including the cost of the appeal proceeding before the defendant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘NANO’ for goods and services in classes 9, 28 and 41 — Community trade mark application No 9 157 421

Decision of the Examiner: Rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 75 and 37(3) of Council Regulation No 207/2009, Rule 50(2)(h) of Regulation No 2868/95 and Articles 76 and 7(1)(b) and (c) of Council Regulation No 207/2009.

7.9.2013   

EN

Official Journal of the European Union

C 260/50

Action brought on 26 July 2013 — Intermark/OHIM — Coca-Cola (RIENERGY Cola)

(Case T-384/13)

2013/C 260/90

Language in which the application was lodged: English

Parties

Applicant: Intermark Srl (Stei, Romania) (represented by: Á. László, lawyer)

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

Other party to the proceedings before the Board of Appeal: The Coca-Cola Company (Atlanta, United States)

Form of order sought

The applicant claims that the Court should:

—

Uphold the application, alter the contested decision of the defendant, order the dismissal of the opposition and order the registration of the applicant’s sign as a trade mark in its entirety;

—

In case the Court considers that it is inevitable to conduct another thorough analyses of the facts and evidence of the case, annul the contested decision of the defendant and remit the case to OHIM for further examination and new decision;

—

Order the defendant to pay the costs of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘Cola’ for goods and services in classes 32 and 35 — Community trade mark application No 9 507 963

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 registrations No 8 792 475, No 2 107 118 and No 8 709 818 of the figurative mark ‘Coca-Cola’ for goods and services in classes 30, 32, 33 and 35

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

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

7.9.2013   

EN

Official Journal of the European Union

C 260/51

Order of the General Court of 12 July 2013 — Pannon Hőerőmű v Commission

(Case T-352/08) (1)

2013/C 260/91

Language of the case: Hungarian

The President of the Sixth Chamber has ordered that the case be removed from the register.

(1)  OJ C 285, 8.11.2008.

7.9.2013   

EN

Official Journal of the European Union

C 260/51

Order of the General Court of 5 July 2013 — SK Hynix v Commission

(Joined Cases T-148/10 and T-149/10) (1)

2013/C 260/92

Language of the case: English

The President of the Second Chamber has ordered that the joined cases be removed from the register.

(1)  OJ C 148, 5.6.2010.