24.11.2007

Official Journal of the European Union

C 283/2

Judgment of the Court (Second Chamber) of 27 September 2007 (Reference for a preliminary ruling from the High Court of Justice (Chancery Division), United Kingdom) — Ikea Wholesale Ltd v Commissioners of Customs & Excise

(Case C-351/04) (1)

(Dumping - Imports of cotton-type bed linen from Egypt, India and Pakistan - Regulation (EC) No 2398/97 - Regulation (EC) No 1644/2001 - Regulation (EC) No 160/2002 - Regulation (EC) No 696/2002 - Recommendations and decisions of the WTO Dispute Settlement Body - Legal consequences - Regulation (EC) No 1515/2001 - Retroactivity - Reimbursement of duties paid)

(2007/C 283/02)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Ikea Wholesale Ltd

Defendant: Commissioners of Customs & Excise

Re:

Reference for a preliminary ruling — High Court of Justice (Chancery Division) — Validity of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1) — Validity of Council Regulation (EC) No 1644/2001 of 7 August 2001 amending Regulation No 2398/97 and suspending its application with regard to imports originating in India (OJ 2001 L 219, p. 1) — Validity of Council Regulation (EC) No 160/2002 of 28 January 2002 amending Regulation No 2398/97 and terminating the proceeding with regard to imports originating in Pakistan (OJ 2002 L 26, p. 1) — Validity of Council Regulation (EC) No 696/2002 of 22 April 2002 confirming the definitive anti-dumping duty imposed on imports of cotton-type bed linen originating in India by Regulation No 2398/97 (OJ 2002 L 109, p. 3)

Operative part of the judgment

Article 1 of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan is invalid in so far as the Council of the European Union applied, for the purpose of determining the dumping margin for the product subject to the investigation, the practice of ‘zeroing’ negative dumping margins for each of the product types concerned.

An importer, such as that at issue in the main proceedings, which has brought an action before a national court against the decisions by which the collection of anti-dumping duties is claimed from it under Regulation No 2398/97, declared invalid by this judgment, is, in principle, entitled to rely on that invalidity in the dispute in the main proceedings in order to obtain repayment of those duties in accordance with Article 236(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.

(1) OJ C 262, 23.10.2004.

24.11.2007

Official Journal of the European Union

C 283/3

Judgment of the Court (Third Chamber) of 27 September 2007 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf Germany) — Medion AG (C-208/06) v Hauptzollamt Duisburg, Canon Deutschland GmbH (C-209/06) v Hauptzollamt Krefeld

(Joined Cases C-208/06 and C-209/06) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Camcorders)

(2007/C 283/03)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicants: Medion AG (C-208/06), Canon Deutschland GmbH (C-209/06)

Defendants: Hauptzollamt Duisburg (C-208/06), Hauptzollamt Krefeld (C-209/06)

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2003 L 281, p. 1) — Sub-headings 8525 40 91 (Video camera recorders, only able to record sound and images taken by the television camera) and 8425 40 99 (other) — Video camera recorders unable, at the time of importation, to receive and record data coming from other equipment, but whose ‘dv-in’ option can be subsequently activated without the manufacturer or seller mentioning or supporting that possibility

Operative part of the judgment

A camcorder may be classified under subheading 8525 40 99 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2263/2000 of 13 October 2000, Commission Regulation (EC) No 2031/2001 of 6 August 2001, and Commission Regulation (EC) No 1789/2003 of 11 September 2003, only if the function for recording images and sounds from sources other than the integrated camera or microphone is active at the time of customs clearance or if, even though the manufacturer did not intend to emphasise that characteristic, that function may be activated subsequently by simple modification of the apparatus by a user who does not have special skills, without modification of the camcorder's hardware. Where the camcorder is activated subsequently, it is also necessary, first, that, once activated, it functions in a manner similar to that of another camcorder whose function for recording images and sounds from sources other than the integrated camera or microphone is active at the time of customs clearance and, second, that it functions independently. The existence of those conditions must be capable of being ascertained at the time of customs clearance. It is for the national court to establish whether those conditions are fulfilled. If those conditions are not fulfilled the camcorder must be classified under subheading 8525 40 91 of the Combined Nomenclature.

(1) OJ C 224, 16.9.2006.

24.11.2007

Official Journal of the European Union

C 283/3

Judgment of the Court (Sixth Chamber) of 27 September 2007 — Commission of the European Communities v Portuguese Republic

(Case C-4/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/110/EC - Assistance in cases of transit for the purposes of removal by air - Failure to transpose within the prescribed period)

(2007/C 283/04)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic (represented by: L. Fernandes and F. Fraústo de Azevedo, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321, p. 26)

Operative part of the judgment

By failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air, the Portuguese Republic has failed to fulfil its obligations under Article 10(1) of that directive;

2.	The Portuguese Republic is ordered to pay the costs.

(1) OJ C 42, 24.2.2007.

24.11.2007

Official Journal of the European Union

C 283/4

Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Portuguese Republic

(Case C-5/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/109/EC - Third-country nationals who are long-term residents - Failure to transpose within the prescribed period)

(2007/C 283/05)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic (represented by: L. Fernandes and F. Fraústo de Azevedo, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44)

Operative part of the judgment

By not having adopted, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, the Portuguese Republic has failed to fulfil its obligations under that directive.

2.	The Portuguese Republic is ordered to pay the costs.

(1) OJ C 42, 24.2.2007.

24.11.2007

Official Journal of the European Union

C 283/4

Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-93/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/35/EC - Environment - Public participation in certain projects and programmes - Failure to transpose within the prescribed period)

(2007/C 283/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis and J.-B. Laignelot, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EC and 96/61/EC (OJ 2003 L 156, p. 17)

Operative part of the judgment

By failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, the Kingdom of Belgium has failed to fulfil its obligations under that Directive;

2.	The Kingdom of Belgium is ordered to pay the costs.

(1) OJ C 95, 28.4.2007.

24.11.2007

Official Journal of the European Union

C 283/5

Judgment of the Court (Sixth Chamber) of 27 September 2007 — Commission of the European Communities v Czech Republic

(Case C-115/07) (1)

(Failure of a Member State to fulfil its obligations - Directive 2004/27/EC - Proprietary medicinal products - Medicinal products for human use - Failure to transpose within the prescribed period)

(2007/C 283/07)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky and M. Šimerdová, Agents)

Defendant: Czech Republic (represented by: T. Boček, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34)

Operative part of the judgment

By failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, the Czech Republic has failed to fulfil its obligations under Article 3 of that directive;

2.	The Czech Republic is ordered to pay the costs.

(1) OJ C 95, 28.4.2007.

24.11.2007

Official Journal of the European Union

C 283/5

Judgment of the Court (Eighth Chamber) of 27 September 2007 — Commission of the European Communities v Czech Republic

(Case C-117/07) (1)

(Failure of a Member State to fulfil its obligations - Directive 2005/28/EC - Principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use - Requirements for authorisation of the manufacturing or importation of these medicinal products - Failure to transpose within the prescribed period)

(2007/C 283/08)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky and M. Šimerdová, Agents)

Defendant(s): Czech Republic (represented by: T. Boček, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Commission Directive 2005/28/EC of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products (OJ 2005 L 91, p. 13)

Operative part of the judgment

By failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/28/EC of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products, the Czech Republic has failed to fulfil its obligations under Article 31(1) of that directive;

2.	The Czech Republic is ordered to pay the costs.

(1) OJ C 95, 28.4.2007.

24.11.2007

Official Journal of the European Union

C 283/6

Reference for a preliminary ruling from the Landgericht Mannheim (Germany) lodged on 12 July 2007 — Criminal proceedings against Karl Schwarz

(Case C-321/07)

(2007/C 283/09)

Language of the case: German

Referring court

Landgericht Mannheim

Party to the main proceedings

Karl Schwarz

Questions referred

Is it — contrary to Article 7(5) of Directive 91/439/EEC (1) — possible under Community law for a citizen of the EU to hold a valid German right to drive and a second right to drive issued by another Member State, both of which were obtained before the accession to the EU of the foreign Member State and — if so —

Does the withdrawal — before the entry into force of the Regulation on the right to drive (Fahrerlaubnisverordnung; ‘FeV’) of 1 January 1999 — of the later second German right to drive as a consequence of a drunkenness offence mean that the validity in Germany of the first foreign right to drive, which was issued earlier, also no longer requires to be recognised after accession of the foreign Member State, even where the period of the ban imposed in Germany has expired?

(1) Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1).

24.11.2007

Official Journal of the European Union

C 283/6

Reference for a preliminary ruling from Supreme Court (Ireland) made on 6 August 2007 — Nicole Hassett and Cheryl Doherty/The Medical Defence Union Limited and MDU Services Limited v Raymond Howard and Brian Davidson

(Case C-372/07)

(2007/C 283/10)

Language of the case: English

Referring court

Supreme Court, Ireland

Parties to the main proceedings

Applicants: Nicole Hassett and Cheryl Doherty/The Medical Defence Union Limited and MDU Services Limited

Defendants: Raymond Howard and Brian Davidson

Questions referred

Where medical practitioners form a mutual defence organisation taking the form of a company, incorporated under the laws of one Member State, for the purpose of providing assistance and indemnity to its members practising in that and another Member State in respect of their professional practice, and the provision of such assistance or indemnity is dependant on the making of a decision by the Board of Management of that company, in accordance with its Articles of association, in its absolute discretion, are proceedings in which a decision refusing assistance or indemnity to a medical practitioner practising in the other Member State pursuant to that provision is challenged by that medical practitioner as involving a breach by the company of contractual or other legal rights of the medical practitioner concerned to be considered to be proceedings which have as their object the validity of a decision of an organ of that company for the purposes of Article 22, paragraph 2 of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) so that the courts of the Member State in which that company has its seat have exclusive jurisdiction?

(1) Council Regulation (EC) No 44/2201 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 12, p. 1).

24.11.2007

Official Journal of the European Union

C 283/7

Reference for a preliminary ruling from the Bayerische Verwaltungsgerichtshof (Germany) lodged on 10 August 2007 — M-K Europa GmbH & Co. KG v Stadt Regensburg

(Case C-383/07)

(2007/C 283/12)

Language of the case: German

Referring court

Bayerische Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: M-K Europa GmbH & Co. KG

Defendant: Stadt Regensburg

Questions referred

In determining whether a food within the meaning of Article 1(2) of Regulation (EC) No 258/97 (1)‘[has] not hitherto been used for human consumption to a significant degree within the Community’ may it be considered significant that shortly before the Regulation entered into force on 15 May 1997 the food was imported into a narrowly defined region of Community territory (in the present case: San Marino) and was available in that locality?

2.	For a food not to be considered as novel within the meaning of Article 1(1) and (2) of Regulation (EC) No 258/97, does it suffice to determine that all of the ingredients used in its production have hitherto been used for human consumption to a significant degree within the Community?

3.	Must Article 1(2)(d) of Regulation (EC) No 258/97 be interpreted narrowly such as to exclude from the category ‘foods … consisting of … algae’ foods containing only such algae as have hitherto been used for human consumption within the Community?

4.	May a food be considered as ‘having a history of a safe food use’ within the meaning of Article 1(2)(e) of Regulation (EC) No 258/97 if experience regarding its safety only exists in regions outside Europe (in the present case: Japan)?

5.	May a food be considered as ‘having a history of a safe food use’ because it is produced using ingredients with a safe history in accordance with a production or processing technique currently in use, if no experience exists as to that combination of ingredients and techniques?

Does it follow from Article 1(3) of Regulation (EC) No 258/97 which states that ‘[w]here necessary, it may be determined in accordance with the procedure laid down in Article 13 whether a type of food or food ingredient falls within the scope of paragraph 2 of this Article’ that in the event of a dispute an undertaking must be regarded as under an obligation to seek that determination and to await the results thereof? May, in addition, any indications be deduced from that provision and from Article 1(2) of Regulation (EC) No 258/97 concerning the burden of producing evidence (Darlegungslast) and the substantive burden of proof?

(1) OJ L 43, p. 1.

24.11.2007

Official Journal of the European Union

C 283/8

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 13 August 2007 — Wienstrom GmbH v Bundesminister für Wirtschaft und Arbeit

(Case C-384/07)

(2007/C 283/13)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Wienstrom GmbH

Defendant: Bundesminister für Wirtschaft und Arbeit

Questions referred

Does the last sentence of Article 88(3) EC require that the national court should, on grounds of the prohibition contained in that provision on putting State aid into effect, refuse further grants of State aid to a beneficiary of aid who under national law is in principle entitled to aid, although the Commission, while regretting the non-notification of the aid, has not adopted either a decision under Article 4(2) of Council Regulation No 659/1999 of 22 March 1999 or a measure under Article 14 of that regulation, and the case file does not reveal any infringement of the rights of third parties?

Does the prohibition under Article 88(3) EC on putting State aid into effect preclude the application of a provision of national law, if such application is based on the new version of that law, which the Commission has held to be compatible with the common market, although the measure concerns periods of time before that new version and the amendments which were decisive for the declaration of compatibility were not yet applicable to that period, and the case file does not reveal any infringement of the rights of third parties?

24.11.2007

Official Journal of the European Union

C 283/8

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 August 2007 — Hospital Consulting Srl, ATI HC, Kodak SpA, Tecnologie Sanitarie SpA v Esaote SpA, ATI, Ital Tbs Telematic & Biomedical Service SpA, Draeger Medica Italia SpA, Officina Biomedica Divisione Servizi SpA

(Case C-386/07)

(2007/C 283/14)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Hospital Consulting Srl, ATI HC, Kodak SpA, Tecnologie Sanitarie SpA

Defendants: Esaote SpA, ATI, Ital Tbs Telematic & Biomedical Service SpA, Draeger Medica Italia SpA, Officina Biomedica Divisione Servizi SpA

Questions referred

1.	‘Does the mandatory nature of the minimum fees and charges set in respect of services provided by lawyers constitute a measure which favours members of the profession concerned, contrary to Articles 81 EC and 10 EC (formerly Articles 85 and 5 of the EC Treaty)?

Does the prohibition of the reduction by courts, when determining costs, of the minimum limits set in the individual items of the scale, by reason of the mandatory nature of the minimum fees and charges set in respect of services provided by lawyers, constitute a measure which favours members of the profession concerned, contrary to the rules in Articles 81 EC and 10 EC?

Does the obligation to state reasons, which is in any event imposed, for the reduction of fees below the minimum limit, and which conflicts with the practice of the administrative courts of calculating the costs of a case on the basis of a variety of factors relating to the outcome of the proceedings and not on that of the actual economic value of the dispute, constitute a restriction on the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, as guaranteed by recital (7) in the preamble to Directive 98/5/EC (1)?’

(1) OJ L 77 of 14.3.1998, p. 36.

24.11.2007

Official Journal of the European Union

C 283/9

Reference for a preliminary ruling from the Tribunale di Ancona (Italia) lodged on 13 August 2007 — MI.VER Srl, Daniele Antonelli v Provincia di Macerata

(Case C-387/07)

(2007/C 283/15)

Language of the case: Italian

Referring court

Tribunale di Ancona (Italia)

Parties to the main proceedings

Applicant: MI.VER Srl, Daniele Antonelli

Defendant: Provincia di Macerata

Questions referred

1.	Is the notion of ‘temporary deposit’ in terms of Directive 75/442/EEC (1) on waste such as to permit a producer to mix together items of waste covered by different respective codes in the European Waste Catalogue, as provided for in Commission Decision 2000/532/EC (2) of 3 May 2000?

If the answer is in the affirmative, may EWC Code 15 01 06 (‘imballaggi in materiali misti’, ‘mixed packaging’) be used to cover waste consisting of packaging of various materials grouped together, or does that code refer exclusively to packaging made of various materials or made up of separate components of different materials?

(1) OJ 194, p. 39.

(2) OJ 226, p. 3.

24.11.2007

Official Journal of the European Union

C 283/9

Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 9 August 2007 — The Queen on the application of the Incorporated Trustees of the National Council for Ageing (Age Concern England), v Secretary of State for Business, Enterprise and Regulatory Reform

(Case C-388/07)

(2007/C 283/16)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: The Incorporated Trustees of the National Council for Ageing (Age Concern England)

Defendant: Secretary of State for Business, Enterprise and Regulatory Reform

Questions referred

In relation to Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (1) (‘the Directive’):

1. National retirement ages and the scope of the Directive

(i)	Does the scope of the Directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement?

(ii)	Does the scope of the Directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement where they were introduced after the Directive was made?

(iii)

In the light of the answers to (i) and (ii) above

(1)	were section 109 and/or 156 of the 1996 Act, and/or

(2)	are Regulations 30 and 7, when read with Schedules 8 and 6 to the Regulations, national provisions laying down retirement ages within the meaning of Recital 14?

2. The definition of direct age discrimination: justification defence

iv)

Does Article 6(1) of the Directive permit Member States to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of achieving a legitimate aim, or does Article 6(1) require Member States to define the kinds of differences of treatment which may be so justified, by a list or other measure which is similar in form and content to Article 6(1)?

3. The test for the justification of direct and indirect discrimination

(v)	Is there any, and if so what, significant practical difference between the test for justification set out in Article 2(2) of the Directive in relation to indirect discrimination, and the test for justification set out in relation to direct age discrimination at Article 6(1) of the Directive?

(1) OJ L 303, p. 16.

24.11.2007

Official Journal of the European Union

C 283/10

Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 10 August 2007 — Azlan Group plc v Her Majesty's Commissioners of Revenue and Customs

(Case C-389/07)

(2007/C 283/17)

Language of the case: English

Referring court

VAT and Duties Tribunal, Manchester

Parties to the main proceedings

Applicant: Azlan Group plc

Defendant: Her Majesty's Commissioners of Revenue and Customs

Questions referred

(1)

Is the Combined Nomenclature (Council Regulation (EEC) No 2658/87 (1) as amended by Commission Regulation (EC) No 1734/96) to be interpreted as requiring that the representative sample goods in issue between the parties be classified as ‘Automatic data-processing machines and units’ thereof under tariff heading 8471 (or under the relevant parts heading of Chapter 84, that is to say tariff heading 8473)?

(2)

If the answer to Question (1) is in the negative in respect of one or more of the representative sample goods in issue between the parties, is the Combined Nomenclature to be interpreted as requiring that such goods be classified as ‘Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunications apparatus for carrier-current line systems or for digital line systems; videophones’ under tariff heading 8517 (or under the relevant parts heading, that is to say tariff heading 8517 or 8548, pursuant to Note 2(b) or (c) of Section XVI)?

(3)	Are such of the representative sample goods in issue between the parties as are capable of linking LANs always classifiable under Chapter 84 or do such products thereby perform a specific function other than data processing within the meaning of Chapter 84 Note 5(E)?

(4)	In the light of the answers to the previous questions, what is the position in relation to chassis products?

(1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, p. 1).

24.11.2007

Official Journal of the European Union

C 283/10

Action brought on 17 August 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-390/07)

(2007/C 283/18)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, X. Lewis and H. van Vliet, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

Declare that, by having failed to

—	identify the Humber Estuary, The Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea — with the exception of the Solway Firth — as sensitive areas with respect to eutrophication;

—

subject to more stringent treatment discharges of urban waste water from agglomerations with a population equivalent (p.e.) of more than 10 000 into the Humber Estuary, The Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water, the North East Irish Sea — with the exception of the Solway Firth —, and into Lough Neagh and Upper and Lower Lough Erne,

the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations pursuant to Article 3(1), 3(2), 5(1), 5(2), 5(3) and 5(5) of, and Annex II to, Council Directive 91/271/EEC (1) concerning urban waste water treatment.

2.	Order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

In the Commission's view the United Kingdom has taken an excessively restrictive approach to the identification of sensitive areas. This is not only because of the relatively high threshold of proof required by the United Kingdom before accepting that a water body is eutrophic, but also the fact that the United Kingdom makes no reference to the need also to identify those water bodies which are at risk and may in the near future become eutrophic if protective action is not taken.

Because the United Kingdom has failed to identify as sensitive areas the Humber estuary, the Wash, the Deben and Colne estuaries, the Outer Thames estuary and Southampton Water and the North East Irish Sea (excluding the Solway Firth) the waste water from the agglomerations of more that 10 000 p.e. discharging waste waters into these areas, as well as those agglomerations which are situated in their relevant catchment areas, have not been made subject to the collection and treatment obligations foreseen in the directive for sensitive areas by the 31 December 1998 deadline.

London, Liverpool, Manchester, Leeds, Kingston upon Hull and Southampton are among the agglomerations implicated. This puts the United Kingdom in breach of its obligations under the directive, and in particular of those specified in Article 3(1) and (2) and in Article 5(2), (3) and (5) and annex II thereof.

The Commission is also of the opinion that the United Kingdom has failed to ensure that the full obligations set out in Articles 5(2), (3) and (5) of the directive have been met for a number of agglomerations discharging into the designated sensitive areas of Lough Neagh and Upper and Lower Lough Erne, as was required by 31 December 1998.

(1) Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 135, p. 40).

24.11.2007

Official Journal of the European Union

C 283/11

Reference for a preliminary ruling from the Corte d'Appello di Milano (Italy) lodged on 22 August 2007 — Marco Gambazzi v Daimler Chrysler Canada Inc and CIBC Mellon Trust Company

(Case C-394/07)

(2007/C 283/19)

Language of the case: Italian

Referring court

Corte d'Appello di Milano

Parties to the main proceedings

Appellant: Marco Gambazzi

Respondents: Daimler Chrysler Canada Inc, CIBC Mellon Trust Company

Questions referred

On the basis of the public-policy clause in Article 27(1) of the Brussels Convention, may the court of the State requested to enforce a judgment take account of the fact that the court of the State which handed down that judgment denied the unsuccessful party — which had entered an appearance — the opportunity to present any form of defence following the issue of a debarring order as described [in the grounds of the present Order]?

Or does the interpretation of that provision in conjunction with the principles to be inferred from Article 26 et seq. of the Convention, concerning the mutual recognition and enforcement of judgments within the Community, preclude the national court from finding that civil proceedings in which a party has been prevented from exercising the rights of the defence, on grounds of a debarring order issued by the court because of that party's failure to comply with a court injunction, are contrary to public policy within the meaning of Article 27(1)?

24.11.2007

Official Journal of the European Union

C 283/12

Appeal brought on 28 August 2007 by Waterford Wedgwood plc against the judgment of the Court of First Instance (Second Chamber) delivered on 12 June 2007 in Case T-105/05: Assembled Investments (Proprietary) Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-398/07 P)

(2007/C 283/20)

Language of the case: English

Parties

Appellant: Waterford Wedgwood plc (represented by: J. Pagenberg, Rechtsanwalt)

Other parties to the proceedings: Assembled Investments (Proprietary) Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The appellant claims that the Court should:

—	annul the Judgment of the Court of First Instance of 12 June 2007 in Case T-105/05

—	refer the case back to the Court of First Instance

—	order OHIM and Assembled Investments to bear the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

The Appellant claims that the Court of First Instance violated Article 8(1)(b) of the Community Trade Mark Regulation (1) in that it applied erroneous legal criteria in determining that the conflicting goods are not similar.

The Appellant further claims that the Court of First Instance violated Article 8(1)(b) of the Community Trade Mark Regulation by holding, in paragraph 34 of its judgment, contrary to the Board of Appeal, that consumers would not consider the respective goods to be similar, without any evidentiary basis for this finding, which is thus based on a distortion of the facts.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1).

24.11.2007

Official Journal of the European Union

C 283/12

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 30 August 2007 — Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor Flugdienst GmbH

(Case C-402/07)

(2007/C 283/21)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicants: Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon

Defendant: Condor Flugdienst GmbH

Questions referred

Is it decisive for the interpretation of the term ‘cancellation’ [for the interpretation of Articles 2(l) and Article 5(1)(c) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1)] whether the original flight planning is abandoned, with the result that a delay, regardless of how long, does not constitute a cancellation if the air carrier does not actually abandon the planning for the original flight?

2.	If Question 1 is answered in the negative: in what circumstances is a delay of the planned flight no longer to be regarded as a delay but as a cancellation? Is the answer to this question dependent on the length of the delay?

(1) OJ 2004 L 46, p. 1.

24.11.2007

Official Journal of the European Union

C 283/13

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 August 2007 — Metherma GmbH & Co. KG v Hauptzollamt Düsseldorf

(Case C-403/07)

(2007/C 283/22)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Metherma GmbH & Co. KG

Defendant: Hauptzollamt Düsseldorf

Question referred

Interpretation of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1).

Can bars of tungsten or molybdenum which have been ‘obtained simply by sintering’ and which fall respectively under subheadings 8101 94 00 and 8102 94 00 of the Combined Nomenclature be processed into scrap falling respectively under subheadings 8101 97 00 and 8102 97 00 of the Combined Nomenclature by being broken up or shattered?

(1) OJ 1987 L 256, p. 1.

24.11.2007

Official Journal of the European Union

C 283/13

Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 5 September 2007 — Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing v Staatssecretaris van Financiën

(Case C-407/07)

(2007/C 283/24)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing

Respondent: Staatssecretaris van Financiën

Question referred

Must Article 13.A(1)(f) of the Sixth Directive (1) be construed as covering also services supplied by groups coming within the scope of that provision to their members which are directly necessary for the exercise of those members' exempted activities or activities for which they are not subject to tax and by way of payment for which no more is invoiced than represents the costs incurred in respect of those services, if those services are supplied only to one or more members?

(1) 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).

24.11.2007

Official Journal of the European Union

C 283/14

Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 5 September 2007 — Brigitte Ruf and Gertrud Elsässer v European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH, Intervener in support of the first defendant: City of Frankfurt am Main

(Case C-408/07)

(2007/C 283/25)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicants: Brigitte Ruf, née Elsässer, and Gertrud Elsässer, née Sommer

Defendants: European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH

Intervener in support of the first defendant: City of Frankfurt am Main

Questions referred

1.	Is the second paragraph of Article 288 EC to be interpreted as meaning that it is an action ‘in the performance of its duties’ where a Community institution plans a specific building measure for the construction of its new business premises?

2.	Is the second paragraph of Article 288 EC to be interpreted as meaning that the forms of compensation for damage which the Community judicature is authorised to order also include an order to desist from a potential but not yet actual infringement of a right (breach of moral rights)?

3.	Is the second paragraph of Article 288 EC to be interpreted as meaning that the Court of Justice has exclusive jurisdiction also in cases where the applicant bases the compensation obligation of the Community institution on an infringement of national law?

24.11.2007

Official Journal of the European Union

C 283/14

Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Avalon Service-Online-Dienste GmbH v Wetteraukreis

(Case C-409/07)

(2007/C 283/26)

Language of the case: German

Referring court

Verwaltungsgericht Giessen

Parties to the main proceedings

Applicant: Avalon Service-Online-Dienste GmbH

Defendant: Wetteraukreis

Questions referred

Are Articles 43 and 49 EC to be interpreted as precluding a national monopoly on certain gaming, such as sports betting, where there is no consistent and systematic policy to limit gaming in the Member State concerned as a whole, in particular because the operators which have been granted a licence within that Member State encourage participation in other gaming — such as State-run lotteries and casino games — and, moreover, other games with the same or a higher suspected potential danger of addiction — such as betting on certain sporting events (e.g. horse racing) and slot machines — may be provided by private service providers?

Are Articles 43 and 49 EC to be interpreted as meaning that authorisations to operate sports betting, granted by State bodies specifically designated for that purpose by the Member States, which are not restricted to the particular national territory, entitle the holder of the authorisation and third parties appointed by it to make and implement offers to conclude contracts also in other Member States without any additional national authorisations being required?

24.11.2007

Official Journal of the European Union

C 283/14

Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Olaf Amadeus Wilhelm Happel v Wetteraukreis

(Case C-410/07)

(2007/C 283/27)

Language of the case: German

Referring court

Verwaltungsgericht Giessen

Parties to the main proceedings

Applicant: Olaf Amadeus Wilhelm Happel

Defendant: Wetteraukreis

Questions referred

24.11.2007

Official Journal of the European Union

C 283/15

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 7 September 2007 — X B.V. v Staatssecretaris van Financiën

(Case C-411/07)

(2007/C 283/28)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: X B.V.

Defendant: Staatssecretaris van Financiën

Questions referred

Must an optical-electrical circuit contained in a plastic case which, together with a light emitting diode (‘LED’), a plastic film and a photodetector, contains an amplifying circuit and is intended for incorporation in, inter alia, communication and computer equipment, consumer electronics and industrial machines, be regarded as an electrical machine or apparatus within the meaning of heading 8543 of the CN?

If it is a part of a machine, is ‘photosensitive semiconductor device, including photovoltaic cells, whether or not assembled in modules or made up into panels’ referred to in heading 8541 of the CN to be interpreted as including an optical-electrical circuit as described above, or is such a product to be regarded as an electronic integrated circuit within the meaning of heading 8542 of the CN owing to the presence of the amplifying circuit?

24.11.2007

Official Journal of the European Union

C 283/15

Reference for a preliminary ruling from the Landesarbeitsgericht Mecklenburg-Vorpommern (Germany) lodged on 10 September 2007 — Kathrin Haase, Adolf Oberdorfer, Doreen Kielon, Peter Schulze, Peter Kliem, Dietmar Bössow, Helge Riedel, André Richter, Andreas Schneider v Superfast Ferries SA, Superfast OKTO Maritime Company, Baltic SF VIII LTD

(Case C-413/07)

(2007/C 283/29)

Language of the case: German

Referring court

Landesarbeitsgericht Mecklenburg-Vorpommern

Parties to the main proceedings

Applicants: Kathrin Haase, Adolf Oberdorfer, Doreen Kielon, Peter Schulze, Peter Kliem, Dietmar Bössow, Helge Riedel, André Richter, Andreas Schneider

Defendants: Superfast Ferries SA, Superfast OKTO Maritime Company, Baltic SF VIII LTD.

Questions referred

1.	Must Article 19(2)(a) of Regulation (EC) No 44/2001 (1) be interpreted as meaning that, for employees engaged to work on a particular ship and exclusively working on that particular ship, the ship itself is to be considered as the place where the employee habitually carries out his work?

Must Article 19(2)(a) be interpreted as meaning that — at least in a situation in which the ship that is to be considered as the place of work is not used exclusively or predominantly in the territorial waters of any one country, but for international transport services, such as, in the present case, for regular passenger services between Germany and Finland — the court for the home port or for the port of registry in the country under whose flag the ship sails is to be considered as the court for the habitual place of work?

Must it be assumed that an employee who works exclusively on a particular ship used for international transport services does not habitually carry out his work in any one country and that, therefore, Article 19(2)(b) rather than Article 19(2)(a) has to be applied for the purposes of determining which court — in a country other than the country where the employee is domiciled — has jurisdiction?

If so, must Article 19(2)(b) be interpreted as meaning that the place where the business which engaged the employee is situated can also be an office located in one of the ports regularly visited by the ship, even though it is not operated by the employer itself but by another company entrusted by the employer — by way of a management contract — with organising in its capacity as ‘operator’ the commercial and technical running of its ships, and that company employs, in that office, a ‘crew manager’ who is responsible, inter alia, for coordinating the personnel's assignments, even though employment contracts were not concluded in that office but on the ship by the ship's captain, but where the office was used to issue duty rosters and to receive certificates of incapacity to work and by the ‘crew manager’ working there to give notices of termination of employment ?

If question 4 is to be answered in the affirmative:

Can the purchaser of the ship whose crew members were able, pursuant to Article 19(2)(b), to sue their former employer in the court for the place in which the business which engaged the employee was situated be sued in the same court simply on the basis that the employees who were given notice claim that their contracts of employment were transferred to the purchaser in accordance with provisions on the transfer of undertakings in the national law they claim ought to be applied?

b)	If an action is also brought against the ‘operator’ — identified in question 4 — who gave the notice, can this action be brought in the same court as the action against the former employer?

(1) OJ L 12, 16.1.2001, p. 1.

24.11.2007

Official Journal of the European Union

C 283/16

Reference for a preliminary ruling from the Tribunale ordinario di Nocera Inferiore (Italy), lodged on 10 September 2007 — Lodato Gennaro & C. SpA v Istituto nazionale della previdenza sociale (INPS), SCCI

(Case C-415/07)

(2007/C 283/30)

Language of the case: Italian

Referring court

Il Tribunale ordinario di Nocera Inferiore

Parties to the main proceedings

Applicant: Lodato Gennaro & C. SpA

Defendants: Istituto nazionale della previdenza sociale (INPS), SCCI

Question referred

Is the Community law laid down in the Guidelines on aid to employment, the Guidelines on national regional aid and Commission Regulation (EC) No 2204/2002 of 5 December 2002 (1) to be interpreted as meaning that, in order to determine whether there has been an increase in employment, a comparison must be made between the average AWU [annual working units] for the year preceding the recruitment of new workers and the average AWU for the year following their recruitment, or are those provisions to be interpreted instead as meaning that a comparison must — or may — be made between the average AWU for the year preceding the recruitment of new workers and the exact number of workers present on the specific day on which those new workers were recruited?

(1) OJ 2002 L 337, p. 3.

24.11.2007

Official Journal of the European Union

C 283/16

Action brought on 11 September 2007 — Commission of the European Communities v Hellenic Republic

(Case C-416/07)

(2007/C 283/31)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: Eleni Tserepa-Lacombe and Friedrich Erlbacher)

Defendant: Hellenic Republic

Form of order sought

declare that, by failing to adopt the necessary measures:

—

so that any transporter of animals is covered by an authorisation from the competent authority and is registered in a manner enabling the competent authority to identify him rapidly, in particular in the event of failure to comply with the rules governing the proper treatment of animals during transport;

—	so that the competent authorities carry out obligatory checks of the route plan/journey log;

—	so that animal rest facilities are provided for following unloading from vessels, in or near ferry ports;

—	so as to ensure that the inspections of the means of transport and the animals are actually carried out;

—	so that effective, proportionate and dissuasive penalties are imposed in the event of repeated or serious infringements of the provisions relating to the protection of animals during transport,

the Hellenic Republic has failed to fulfil its obligations under Article 5(A)(1)(a)(i) and (ii), Article 5(A)(2)(b), the first indent of Article 5(A)(2)(d)(i) and Articles 8, 9 and 18(2) of Council Directive 91/628/EEC (1) of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, under point 7(b) of Chapter VII of the annex to that directive and, from 5 January 2007, under Articles 5(4), 6(1), 13(3) and (4), 15(1), 25, 26 and 27(1) of Council Regulation (EC) No 1/2005 (2) of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97;

declare that, by failing to adopt the necessary measures:

—	to ensure observance of the rules governing the stunning of animals at the time of slaughter; and

—	to ensure appropriate inspections and controls in slaughterhouses,

the Hellenic Republic has failed to fulfil its obligations under Articles 3, 5(1)(d), 6(1) and 8 of Council Directive 93/119/EC (3) of 22 December 1993 on the protection of animals at the time of slaughter or killing;

3.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In this action, the Commission submits that the Hellenic Republic is not implementing correctly certain provisions relating to the protection of animals during transport and at the time of slaughter.

The Commission requests the Court to declare that, by having failed to adopt the legal measures and the necessary administrative measures to comply with the obligations laid down in Article 5(A)(1)(a)(i) and (ii), Article 5(A)(2)(b), the first indent of Article 5(A)(2)(d)(i) and Articles 8, 9 and 18(2) of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, in point 7(b) of Chapter VII of the annex to that directive and, from 5 January 2007, in Articles 5(4), 6(1), 13(3) and (4), 15(1), 25, 26 and 27(1) of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 on the protection of animals during transport, the Hellenic Republic has failed to fulfil its obligations under that legislation.

The Commission also requests the Court to declare that, by having failed to adopt the legal measures and the necessary administrative measures to comply with the obligations laid down in Articles 3, 5(1)(d), 6(1) and 8 of Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing, the Hellenic Republic has failed to fulfil its obligations under that legislation.

The Commission points out that, in accordance with the Court of Justice's case-law, a failure to fulfil obligations may result from an administrative practice that infringes Community law. In the present action, the Commission relies not on an isolated finding of fact but on a significant number of cases which were discovered by its Food and Veterinary Office (FVO) and constitute a structured and general infringement of the obligations of the Hellenic Republic under the abovementioned provisions.

In particular, the Commission submits that the Hellenic Republic has not adopted all the necessary measures so that any transporter of animals is covered by an authorisation from the competent authority and is registered in a manner enabling the competent authority to identify him rapidly, in particular in the event of failure to comply with the rules governing the proper treatment of animals during transport, so that the competent authorities carry out obligatory checks of the route plan/journey log, so that animal rest facilities are provided for following unloading from vessels, in or near ferry ports, and so as to ensure that inspections of the means of transport and the animals are carried out.

The Commission further submits that the Hellenic Republic has not adopted all the necessary measures to ensure observance of the rules governing the stunning of animals at the time of slaughter and to ensure appropriate inspections and controls in slaughterhouses.

The Commission states that both on expiry of the period set in the reasoned opinion and after that date, and notwithstanding certain efforts on the part of the Greek authorities, the Hellenic Republic had not adopted all the measures necessary to make good the deficiencies alleged against it. The majority of the recommendations addressed to the Greek authorities were not implemented or were implemented inadequately. On the other hand, mission reports paint a very worrying picture regarding implementation of the abovementioned measures.

(1) OJ L 340, 11.12.1991, p. 17.

(2) OJ L 3, 5.1.2005, p. 1.

(3) OJ L 340, 31.12.1993, p. 21.

24.11.2007

Official Journal of the European Union

C 283/18

Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 12 September 2007 — Société Papillon v Ministère du budget, des comptes publics et de la function publique

(Case C-418/07)

(2007/C 283/32)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Applicant: Société Papillon

Defendant: Ministère du budget, des comptes publics et de la function publique

Questions referred

Inasmuch as the tax benefit arising under the ‘tax integration’ scheme affects the liability to tax of the parent company of the group, which can offset the profits and losses of all the companies of the integrated group, and benefit from the tax neutrality of the internal transactions of that group, does the impossibility — resulting from the scheme laid down under Article 223 A et seq. of the code général des impôts — of including within the membership of a tax-integrated group a sub-subsidiary of the parent company, when it is held through a subsidiary which, being established in another Member State of the European Community and not carrying on business in France, is not subject to French corporation tax and thus cannot itself form part of the group, constitute a restriction on freedom of establishment by reason of the tax consequences arising from the choice of the parent company as to whether to hold a sub-subsidiary through a French subsidiary or, instead, through a subsidiary established in another Member State?

If the answer is in the affirmative, can such a restriction be justified either by the need to maintain the coherence of the ‘tax integration’ system — in particular the arrangements for the tax neutrality of transactions within the group, having regard to the consequences of a system which consists of treating a subsidiary established in another Member State as belonging to the group solely for the purposes of the condition as to the indirect holding of the sub-subsidiary, while remaining automatically excluded from the application of the group scheme since it is not subject to French tax — or by any other overriding reason of public interest?

24.11.2007

Official Journal of the European Union

C 283/18

Action brought on 12 September 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-419/07)

(2007/C 283/33)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: K. Mojzesowicz and V. Bottka, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

—	Declare that, by failing correctly to implement Article 2 of Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (1) (the Competition Directive), the Kingdom of Sweden has failed to fulfil its obligations thereunder;

—	order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The digital broadcasting licences issued by the Swedish Government are State measures which, inter alia, regulate the use of digital broadcasting services and thus indirectly the supply of such services in the Kingdom of Sweden. The requirement in the currently valid licences that the licence holder is to comply with section 2 of the cooperation agreement indirectly gives the State company Boxer a monopoly for access control services (including encryption), contrary to Article 2(1) of the Competition Directive. The retention of the obligation to comply with that section of the cooperation agreement thus prevents undertakings interested in offering a complete range of digital broadcasting services from enjoying the rights which Article 2(2) and (3) is intended to guarantee to them. The Commission therefore notes that Sweden has failed correctly to implement the Competition Directive in its national legal order with regard to digital transfer and broadcasting services over the terrestrial network.

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

24.11.2007

Official Journal of the European Union

C 283/19

Action brought on 13 September 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-422/07)

(2007/C 283/34)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and D. Recchia, Agents)

Defendant: Kingdom of Spain

Forms of order sought

—

Declare that, by not adopting the necessary measures for verification of compliance with good laboratory practice in relation to inspections and study checks in the industrial chemical substances sector, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of Directive 2004/10/EC (1) of the European Parliament and of the Council of 11 February 2004 on the harmonisation of laws, regulations and administrative provisions relating to the application of the principles of good laboratory practice and the verification of their applications for tests on chemical substances

—	Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission has no evidence that the necessary measures have been adopted in Spain for study checks in accordance with principles of good laboratory practice on the part of the laboratories carrying out tests on industrial chemicals. Neither has any authority been designated in Spain as responsible for the verification of the compliance with the principles of good laboratory practice on the part of those aforementioned laboratories or, in any case, the name of that authority has not been communicated to the Commission.

Consequently it can be stated that the Kingdom of Spain has proceeded without adopting the necessary measures for the verification of compliance of good laboratory practice relating to inspections and study checks in the industrial chemical products sector as intended in Article 3 of the Directive.

(1) OJ L 50, 20.2.2004, p. 44.

24.11.2007

Official Journal of the European Union

C 283/19

Action brought on 13 September 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-424/07)

(2007/C 283/35)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and A. Nijenhuis, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

—

declare that, with the provisions made in paragraphs 3 No 12(b) and 9(a) of the German Law on Telecommunications (Telekommunikationsgesetz — ‘TKG’), newly inserted into the TKG by the Law amending the laws governing telecommunications of 18 February 2007, the Federal Republic of Germany has infringed Articles 6, 7, 15(3), 16 and 8(1) and (2) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (1), Article 8(4) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (2), as well as Article 17(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (3);

—	order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The common regulatory framework for electronic communications networks introduced in 2002 sets out aims for the actions of national regulatory authorities and lists the measures that national regulatory authorities can take to achieve those aims. By providing room for the exercise of discretion, this regulatory framework allows national regulatory authorities to proceed — following careful analysis of the market — in a manner that takes into careful consideration the particular features of each individual case. According to the provisions of Community law, national regulatory authorities shall define the relevant markets appropriate to national circumstances, in accordance with the principles of competition law, taking the utmost account of the Commission's recommendation and the guidelines. Therefore, it is the national regulatory authorities that define the relevant markets, and not the national legislator or another national institution. In view of the independence of national regulatory authorities, which are under an obligation to exercise their powers in a manner that is impartial and transparent, this is a central structural element in the procedure leading to the definition of the market, which is not within the legislator's discretion. In addition, if necessary, national regulatory authorities undertake an analysis of the markets and determine whether — and, if required, which — remedies have to be imposed. There is a mechanism for consultation as regards definition and analysis of the market.

In contrast to the market definition and market analysis procedures under Community law, the German legislator lays down the definition of ‘new markets’ and establishes in advance the conditions under which the regulatory authority is entitled, exceptionally, to regulate new markets, instead of leaving it to the regulatory authority to conduct this assessment. In addition, the German legislator imposes on the regulatory authority a regulatory aim to which it must pay particular attention. Those provisions of the German Law on Telecommunications infringe the provisions of Directives 2002/19/EC, 2002/21/EC and 2002/22/EC, by circumventing the rules on the regulation of the market provided for in those directives and unduly limiting the regulatory authority's discretion.

The German rules in issue make it impossible for the national regulatory authority to define all markets in accordance with the principles of competition law and — by including a global provision that, by law, certain markets cannot be regulated — to take decisions on the merits that take into consideration each individual case. The regulatory authority is only obliged to follow the procedures for consultation and cooperation provided for in the Community regulatory framework, and to inform market participants, European regulatory authorities and the Commission of the result of its analysis of a ‘new market’, if, at the same time, it reaches the conclusion that additional conditions are fulfilled and it therefore considers that regulation is required. The provisions of the German Law on Telecommunications in issue could cause the German regulatory authority to define and analyse a market and take the decision not to regulate it without following the intended procedures for consultation and cooperation.

Therefore, in the Commission's view, there is a danger that those provisions would significantly undermine the liberalisation of the markets for electronic communication, as well as the opening of those markets to competition, that have been achieved because of the common regulatory framework. There is a threat that some markets, such as, for example, broadband markets — which use the fixed line networks of the former monopoly operators and which are particularly important for technological development — could be re-monopolised, which would be a reversal of what has been achieved so far, also partly thanks to the common regulatory framework.

(1) OJ L 108, 24.4.2002, p. 33.

(2) OJ L 108, 24.4.2002, p. 7.

(3) OJ L 108, 24.4.2002, p. 51.

24.11.2007

Official Journal of the European Union

C 283/20

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Białymstoku (Republic of Poland) lodged on 14 September 2007 — Dariusz Krawczyński v Dyrektor Izby Celnej w Białymstoku

(Case C-426/07)

(2007/C 283/36)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Białymstoku (Regional Administrative Court, Białystok)

Parties to the main proceedings

Applicant: Dariusz Krawczyński

Defendant: Dyrektor Izby Celnej w Białymstoku (Director of the Białystok Customs Chamber)

Questions referred

Can excise duty introduced in a Member State of the European Community such as that provided for in the Polish Law of 23 January 2004 on Excise Duty (Dz. U No 29, heading 257, as subsequently amended), which is charged on any sale of passenger cars before their initial registration in national territory, be characterised as a form of unlawful turnover tax for the purposes of Article 33(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) (now Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), in force since 1 January 2007)?

If the above question is to be answered in the negative:

Is excise duty such as that at issue in these proceedings pending before the Wojewódzki Sąd Administracyjny w Białymstoku, which is charged on any sale of passenger cars before their initial registration in national territory, contrary to Article 90 EC — which prohibits discrimination and the protectionist application of a domestic tax system in favour of similar domestic products — where such duty is not charged on the sale of second hand cars previously registered in the Republic of Poland?

24.11.2007

Official Journal of the European Union

C 283/21

Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 18 September 2007 — Stefan Böck and Cornelia Lepuschitz v Air France SA

(Case C-432/07)

(2007/C 283/37)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicants: Stefan Böck and Cornelia Lepuschitz

Defendant: Air France SA

Questions referred

Must Article 5, read in conjunction with Articles 2(l) and 6, of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1), be interpreted as meaning that a 22-hour delay in the time of departure constitutes a ‘delay’ within the meaning of Article 6?

Must Article 2(l) of Regulation (EC) No 261/2004 be interpreted as meaning that instances in which passengers are transported significantly later (22 hours later) on a flight operating under a longer flight number (original flight number supplemented by an ‘A’) and carrying only an — albeit large — proportion of the passengers booked on the initial flight, but also additional passengers not booked on the initial flight, constitute ‘cancellations’ rather than ‘delays’?

If Question 2 is to be answered in the affirmative:

3.	Must Article 5(3) of Regulation (EC) No 261/2004 be interpreted as meaning that technical problems with a plane and the resulting changes to the flight schedule represent extraordinary circumstances (which could not have been avoided even if all reasonable measures had been taken)?

(1) OJ L 46, 17.2.2004, p. 1.

24.11.2007

Official Journal of the European Union

C 283/21

Action brought on 19 September 2007 — Commission of the European Communities v Kingdom of Sweden

(Case C-438/07)

(2007/C 283/38)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: L. Parpala, M. Patakia and S. Pardo Quintillán)

Defendant: Kingdom of Sweden

Form of order sought

—

Declare that the defendant has breached Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (1), as amended by Commission Directive 98/15/EC of 27 February 1998 (2). The breach consists in the failure to order, at the latest by 31 December 1998, that all emissions from urban waste-water treatment plants with a population equivalent of over 10 000 discharging directly into sensitive areas or their catchment areas fulfil the applicable requirements in Annex I to Council Directive 91/271/EEC, and

—	Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In 1994, Sweden classified all its waters as sensitive areas. In 1998 and 2000, Sweden confirmed that classification for the Commission of the European Communities (the Commission) and stated that eutrophication was used as a criterion and that it is the bodies of water affected which determine the type of tertiary treatment necessary.

The Swedish authorities take the view that nitrogen treatment is not necessary for emissions into the Baltic Sea from agglomerations with a population equivalent (p.e.) of over 10 000 in the area situated to the north of the commune of Norrtälje. Nitrogen treatment therefore takes place only in coastal areas between the commune of Norrtälje and the Norwegian border. They also take the view that nitrogen emissions from urban areas with a pe of over 10 000 in central South Sweden do not contribute to the eutrophication of coastal water, since there is adequate natural retention of nitrogen in transit through the catchment area from the source of the pollution to the sea.

The Commission takes the view that there is scientific evidence that phosphor and nitrogen are the main causes of the eutrophication of the Baltic Sea. Phosphor and nitrogen emissions into coastal water are spread to other parts of the Baltic Sea and emissions into inland waters should which lie in the Baltic Sea's catchment area contribute to its eutrophication.

Therefore, general nitrogen treatment of wastewater from urban areas with a population equivalent (p.e.) of over 10 000 which runs out directly into sensitive areas or their catchment areas must be introduced at affected treatment plants.

The failure to take such measures constitutes a breach of Directive 91/271/EEC, as amended by Commission Directive 98/15/EC, in particular of Article 5(2), (3) and (5) (of Directive 91/271).

(1) OJ 1991 L 135, p. 40.

(2) OJ L 67, 7.3.1998, p. 29.

24.11.2007

Official Journal of the European Union

C 283/22

Appeal brought on 26 September 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-170/06: Alrosa Company Ltd v Commission of the European Communities

(Case C-441/07 P)

(2007/C 283/39)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: F. Castillo de la Torre and R. Sauer, Agents)

Other party to the proceedings: Alrosa Company Ltd

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the Court of First Instance of 11 July 2007 in Case T-170/06;

—	give final judgment in the matter by dismissing the application for annulment in Case T-170/06 as unfounded;

—	order the Applicant in Case T-170/06 to pay the costs of the Commission arising from that case and from the present appeal.

Pleas in law and main arguments

Pleas on the substance:

The Commission considers that the judgment under appeal misinterprets Article 9 of regulation 1/2003 (1), and the way in which the principle of proportionality is applicable in the context of that provision. Secondly, the Commission submits that, when examining whether the commitment was proportionate, the judgment under appeal misapplies Article 9, errs in law as regards the interpretation of Article 82 EC, ignores the proper scope of judicial review, distorts the content of the contested decision and the factual record, and lacks reasoning at several stages.

Pleas on the procedure:

The Commission submits that the CFI's finding as regards the alleged violation of the applicant's right to be heard lacks sufficient reasoning and remains unclear, given that the CFI provided no unequivocal explanation as to why the applicant would have been unable to prepare an ‘effective’ reply or to ‘fully’ exercise its rights. In addition, it is submitted that the CFI applied the wrong legal standard when likening the applicant to an ‘undertaking concerned’. The CFI also misinterpreted the law by assuming that the applicant should have been given the opportunity to prepare new joint commitments together with De Beers, or to comment on the outcome of the market test before De Beers submitted individual commitments. In addition, the CFI failed to examine whether the applicant actually had this opportunity after receiving the summary of the market test observations. Finally, the Commission maintains that the CFI committed an error in law by considering the applicant's first plea well founded while leaving open to what extent the alleged violation of its right to be heard actually affected the Commission's decision.

(1) Council Regulation (EC) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, p. 1).

24.11.2007

Official Journal of the European Union

C 283/23

Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 27 September 2007 — Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’

(Case C-442/07)

(2007/C 283/40)

Language of the case: German

Referring court

Oberster Patent — und Markensenat

Parties to the main proceedings

Applicant: Verein Radetzky-Orden

Defendant: Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’.

Question referred

Is Article 12(1) of [First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks] to be construed as meaning that a trade mark is put to (genuine) use to distinguish goods and services of one undertaking from those of other undertakings in the case where a non-profit-making association uses the trade mark in announcements for events, on business papers and on advertising material and that trade mark is used by the association's members when collecting and distributing donations inasmuch as those members wear badges featuring that trade mark?

24.11.2007

Official Journal of the European Union

C 283/23

Reference for a preliminary ruling from the Sąd Rejonowy Gdańsk — Północ w Gdańsku (Republic of Poland) lodged on 27 September 2007 — MG Probud Gdynia Sp. z o.o. v Hauptzollamt Saarbrücken

(Case C-444/07)

(2007/C 283/41)

Language of the case: Polish

Referring court

Sąd Rejonowy Gdańsk — Północ w Gdańsku (Poland)

Parties to the main proceedings

Applicant: MG Probud Gdynia Sp. z o.o., Gdynia

Defendant: Hauptzollamt Saarbrücken

Questions referred

In the light of Articles 3, 4, 16, 17 and 25 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (1), that is to say, in the light of the rules governing the jurisdiction of the courts of the State in which insolvency proceedings are opened, the law applicable to those proceedings and the conditions governing, and the effects of recognition of, those proceedings, do the public administrative authorities of a Member State have the power to seize funds held in the bank account of an economic subject following a declaration of its insolvency made in another EU Member State (application of the so-called seizure of assets), thereby contravening the national legal rules of the Member State which opened such proceedings (Article 4 of Regulation No 1346/2000), where the conditions for the application of the provisions of Articles 5 and 10 of that regulation do not exist?

In the light of Article 25(1) et seq. of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, may the administrative authorities of the Member State in which secondary insolvency proceedings have not been opened and which must recognise the insolvency proceedings pursuant to Article 16 of that regulation refuse, on the basis of domestic legal rules, to recognise decisions made by the State of the opening of insolvency proceedings relating to the conduct and closure of insolvency proceedings pursuant to Articles 31 to 51 of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters?

(1) OJ 2000 L 160, p. 1.

24.11.2007

Official Journal of the European Union

C 283/23

Appeal brought on 27 September 2007 by Ayuntamiento de Madrid and Madrid Calle 30, SA against the order of the Court of First Instance (Fourth Chamber) delivered on 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities

(Case C-448/07 P)

(2007/C 283/42)

Language of the case: Spanish

Parties

Appellants: Ayuntamiento de Madrid and Madrid Calle 30, SA (represented by: J.L. Buendía Sierra and R. González-Gallarza Granizo, abogados)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	annul the order of the Court of First Instance (Fourth Chamber) of 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities;

—	refer the case back to the Court of First Instance for judgment.

Pleas in law and main arguments

In the order under appeal, the Court of First Instance held inadmissible the action brought by Ayuntamiento de Madrid and Madrid Calle 30, SA, which sought the annulment of the classification by the Commission (Eurostat) of Madrid Calle 30 in the ‘public administration’ sector, in accordance with the ‘European System of Accounts’ (ESA 95) provided for in Annex A to Council Regulation (EC) No 2223/96 (1) of 25 June 1996. That classification was based on accounts published by the Commission (Eurostat) on 24 April 2006, using the data of 2005 on the government deficit and government debt for the application of the Protocol on the excessive deficit procedure annexed to the EC Treaty.

The appellants consider that the Court of First Instance erred in holding that the news release 48/2006 did not constitute an implied decision of the Commission (Eurostat) with binding legal effects and consequently was not a legal act against which an action could be brought.

In support of their appeal, the appellants emphasise the central role of the Commission (Eurostat) in the final approval of the figures of government deficit and debt of the Member States, based not only on the relevant legislation (Article 104 EC, the Protocol on the excessive deficit procedure and Council Regulation (EC) No 3605/93 (2) of 22 November 1993 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community, as amended by Regulation (EC) No 2103/2005 (3)) but also on the institutional architecture of the regulatory system.

The appellants consider that in the order under appeal the Court of First Instance came to an erroneous conclusion by not accepting that the Commission (Eurostat) is obliged to check whether the government accounts comply with the accounting rules of ESA 95 before publishing the data on the government deficit and debt of the Member States. The appellants add that the absence of reservations and/or amendments on the part of the Commission (Eurostat), within the relevant period laid down in Regulation (EC) No 3605/93, as amended, implies that the act which has been approved without reservations and/or amendments becomes final and is therefore a legal act against which an action can be brought. The appellants further claim that the act in question entails legal effects with significant consequences in various areas, such as for example, under the excessive deficit procedure or the Structural Funds procedure.

(1) Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (OJ L 310, p. 1).

(2) OJ L 332, p. 7.

(3) Council Regulation (EC) No 2103/2005 of 12 December 2005 amending Regulation (EC) No 3605/93 as regards the quality of statistical data in the context of the excessive deficit procedure (OJ L 337, p. 1).

24.11.2007

Official Journal of the European Union

C 283/24

Action brought on 3 October 2007 — Commission of the European Communities v Italian Republic

(Case C-449/07)

(2007/C 283/43)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and R. Vidal Puig, acting as Agents)

Defendant: Italian Republic

Forms of order sought

The applicant claims that the Court should:

—

declare that, by not adopting (all) the laws, regulations and administrative provisions necessary to comply with Directive 2004/36/EC (1) of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports, the Italian Republic has failed to fulfil its obligations under Article 11 of that Directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of Directive 2004/36/EC into national law expired on 30 April 2006.

(1) OJ 2004 L 143, p. 76.

24.11.2007

Official Journal of the European Union

C 283/25

Judgment of the Court of First Instance of 12 October 2007 — Pergan Hilfsstoffe für industrielle Prozesse v Commission

(Case T-474/04) (1)

(Competition - Agreements, decisions and concerted practices - Organic peroxides - Decision refusing a request for removal of certain passages from the definitive published version of a decision finding an infringement of Article 81 EC - Disclosure of information concerning the applicant by publishing a decision not addressed to it - Article 21 of Regulation No 17 - Professional secrecy - Article 287 EC - Presumption of innocence - Annulment)

(2007/C 283/44)

Language of the case: German

Parties

Applicant: Pergan Hilfsstoffe für industrielle Prozesse GmbH (Bocholt, Germany) (represented by: M. Klusmann and F. Wiemer, lawyers)

Defendant: Commission of the European Communities (represented by: A. Bouquet, Agent, assisted by A. Böhlke, lawyer)

Re:

Application for the annulment of Commission Decision (2004) D/204343 of 1 October 2004 in so far as it rejects the applicant's request for removal of all references to it in the definitive published version of Commission Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision (2004) D/204343 of 1 October 2004;

2.	Orders the Commission to pay the costs.

(1) OJ C 45, 19.2.2005.

24.11.2007

Official Journal of the European Union

C 283/25

Judgment of the Court of First Instance of 4 October 2007 — Advance Magazine Publishers v OHIM — J. Capela & Irmãos Lda (VOGUE)

(Case T-481/04) (1)

(Community trade mark - Opposition proceedings - Application for a Community word mark VOGUE - Earlier national word mark VOGUE Portugal - Facts raised for the first time before the Board of Appeal - Extent of the examination carried out by the Board of Appeal)

(2007/C 283/45)

Language of the case: English

Parties

Applicant: Advance Magazine Publishers, Inc., established in New York, New York (United States), represented by M. Esteve Sanz, lawyer,

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

Other party in the proceedings before the Board of Appeal of OHIM: J. Capela & Irmãos, L.da, (Porto, Portugal),

Re:

Action brought against the decision of the Second Board of Appeal (OHIM) of 27 September 2004 (Case R 328/2003-2), concerning opposition proceedings between J. Capela & Irmãos, L.da and Advance Magazine Publishers, Inc.

Operative part of the judgment

1.	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 27 September 2004 (Case R 328/2003-2);

2.	Orders OHIM to bear its own costs and those incurred by Advance Magazine Publishers, Inc.

(1) OJ C 57, 5.3.2005.

24.11.2007

Official Journal of the European Union

C 283/26

Judgment of the Court of First Instance of 10 October 2007 — Bang & Olufsen v OHIM (Shape of a loudspeaker)

(Case T-460/05) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Shape of a loudspeaker - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2007/C 283/46)

Language of the case: English

Parties

Applicant: Bang & Olufsen A/S (Struer, Denmark) (represented by: K. Wallberg, lawyer)

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

Re:

Action against the decision of the First Board of Appeal of OHIM of 22 September 2005 (Case R 497/2005-1) concerning an application for registration as a Community trade mark of a three-dimensional sign formed by the shape of a loudspeaker.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 September 2005 (Case R 497/2005-1);

2.	Orders OHIM to bear its own costs and to pay those of Bang & Olufsen A/S.

(1) OJ C 74, 25.3.2006.

24.11.2007

Official Journal of the European Union

C 283/26

Order of the Court of First Instance of 11 September 2007 — Lancôme v OHIM — Baudon (AROMACOSMETIQUE)

(Case T-185/04) (1)

(Community trade mark - Invalidity proceedings - Community word mark AROMACOSMETIQUE - Earlier national word mark AROMACOSMETIQUE - Invalidity of the earlier national word mark - No need to adjudicate)

(2007/C 283/47)

Language of the case: French

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France) (represented by: M. Antoine-Lalance, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Jacqueline Baudon (Paris, France)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 March 2004 (Case R 39/2002-4) concerning the invalidity proceedings 155 C 000866335/1 between Ms Jacqueline Baudon and Lancôme parfums et beauté & Cie SNC

Operative part of the judgment

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

2.	Each party shall bear its own costs.

(1) OJ C 217, 28.8.2004.

24.11.2007

Official Journal of the European Union

C 283/27

Order of the Court of First Instance of 11 September 2007 — Honig-Verband v Commission

(Case T-35/06) (1)

(Action for annulment - Regulation (EC) No 1854/2005 - Protected geographical indication - ‘Miel de Provence’ - Measure of general application - Lack of individual concern - Inadmissibility)

(2007/C 283/48)

Language of the case: German

Parties

Applicant: Honig-Verband eV (Hamburg, Germany) (represented by: M. Hagenmeyer and T. Teufer, lawyers)

Defendant: Commission of the European Communities (represented by: F. Erlbacher and B. Doherty, Agents)

Re:

Application for annulment of Commission Regulation (EC) No 1854/2005 of 14 November 2005 supplementing the Annex to Regulation (EC) No 2400/96 as regards the entry of a name in the ‘Register of protected designations of origin and protected geographical indications’ (Miel de Provence) (PGI) (OJ 2005 L 297, p. 3)

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	The applicant is ordered to bear its own costs and to pay those incurred by the Commission.

(1) OJ C 86, 8.4.2006.

24.11.2007

Official Journal of the European Union

C 283/27

Order of the Court of First Instance of 11 September 2007 — Fels-Werke and Others v Commission

(Case T-28/07) (1)

(Application for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National plan for Germany's allocation of greenhouse gas emission allowances for the period from 2008 to 2012 - Commission rejection decision - Not individually concerned - Inadmissibility)

(2007/C 283/49)

Language of the case: German

Parties

Applicants: Fels-Werke GmbH (Goslar, Germany); Saint-Gobain Glass Deutschland GmbH (Aix-la-Chapelle, Germany); and Spenner Zement GmbH & Co KG (Erwitte, Germany) (represented by: H. Posser and S. Altenschmidt, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker, Agent)

Re:

Application for annulment in part of the Commission's Decision of 29 November 2006 on the national plan for the allocation of greenhouse gas emission allowances notified by the Federal Republic of Germany for the period from 2008 to 2012 pursuant to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part of the order

1.	Dismisses the action as inadmissibile;

2.	Fels-Werke GmbH, Saint-Gobain Glass Deutschland GmbH and Spenner Zement GmbH & Co KG are ordered to pay the costs.

(1) OJ C 69, 24.3.2007.

24.11.2007

Official Journal of the European Union

C 283/28

Order of 14 September 2007 of the Judge hearing the application for interim measures — AWWW v Eurofound

(Case T-211/07 R)

(Public procurement - Community tender procedure - Procedure for interim relief - Lack of urgency)

(2007/C 283/50)

Language of the case: English

Parties

Applicant: AWWW GmbH ArbeitsWelt-Working World (Göttingen, Germany) (represented by: B. Schreier, lawyer)

Defendant: European Foundation for the Improvement of Living and Working Conditions (Eurofound) (represented by: C. Callanan, lawyer)

Re:

Application for suspension of the operation of the decision of Eurofound concerning contract No 2007/S 13-014125 entitled ‘Information and analysis on quality of work and employment, industrial relations and restructuring covering the European level’, until the Court of First Instance has given judgment in the main action.

Operative part of the order

1.	The application for interim relief is dismissed.

2.	The costs are reserved.

24.11.2007

Official Journal of the European Union

C 283/28

Order of 28 September 2007 of the Judge hearing the application for interim measures — France v Commission

(Case T-257/07 R)

(Application for interim measures - Health measures - Regulation (EC) No 999/2001 - Eradication of certain transmissible spongiform encephalopathies - Regulation (EC) No 727/2007 - Application for suspension of operation - Prima facie case - Urgency - Balancing of interests)

(2007/C 283/51)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, R. Loosli and A. During, Agents)

Defendant: Commission of the European Communities (represented by: M. Nolin, Agent)

Re:

Application for suspension of the operation of point (3) of the Annex to Commission Regulation (EC) No 727/2007 of 26 June 2007 amending Annexes I, III, VII and X to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2007 L 165, p. 8), in so far as it introduces, into Chapter A of Annex VII to Regulation (EC) No 999/2001 of 22 May 2001 (OJ 2001 L 147, p. 1), point 2.3(b)(iii), point 2.3(d) and point 4.

Operative part of the order

The application of point (3) of the Annex to Commission Regulation (EC) No 727/2007 of 26 June 2007 amending Annexes I, III, VII and X to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies is suspended until judgment has been given in the main action, in so far as it introduces, in Chapter A of Annex VII to Regulation (EC) No 999/2001 of 22 May 2001, point 2.3(b)(iii), point 2.3(d) and point 4.

2.	Costs are reserved.

24.11.2007

Official Journal of the European Union

C 283/28

Order of the President of the Court of First Instance of 13 September 2007 — Berliner Institut für Vergleichende Sozialforschung v Commission

(Case T-292/07 R)

(Interim measures - Failure to bring proceedings - Inadmissibility)

(2007/C 283/52)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung eV (Berlin, Germany) (represented by: L. Bechtel, lawyer)

Defendant: Commission of the European Communities

Re:

Application to suspend the operation of the debit notes bearing the numbers 3240905385, 3240905379, 3240905378 and 3240905393 issued by the Commission in connection with the contracts JAI/DAP/2000/338-C, JAI/2001/DAP/161/C, JAI/2002/DAP/094-W and JAI/2003/DAP/080-W

Operative part of the order

1.	The application is inadmissible.

2.	The applicant shall bear its own costs.

24.11.2007

Official Journal of the European Union

C 283/29

Action brought on 24 July 2007 — Dimos Peramatos v Commission

(Case T-312/07)

(2007/C 283/53)

Language of the case: Greek

Parties

Applicant: Dimos Peramatos (Municipality of Perama, Greece) (represented by: G. Gerapetritis and P. Petropoulos)

Defendant: Commission of the European Communities

Form of order sought

—

annul the contested measure so that any obligation owed by the applicant to refund sums paid within the framework of the project LIFE97/ENV/GR/000380 ceases or, in the alternative, amend the contested measure so as to oblige the applicant to pay EUR 93 795,32, the sum calculated to be the ineligible expenditure, as the Commission itself has acknowledged;

—	order the Commission to pay the costs of the proceedings and in particular the costs incurred by the applicant on lawyers' fees.

Pleas in law and main arguments

This application seeks the annulment of the Commission decision of 7 December 2005, served by bailiff on the applicant for the purposes of enforcement on 17 May 2007, relating to Debit Note No 3240504536 which was issued to the Municipality of Perama to recover the financial contribution which had been paid by the Commission in the context of the subsidy granted to the Municipality of Perama by Commission Decision C(97)/1997/29 final.

The applicant pleads an error of fact and incorrect interpretation of the Commission decision. More specifically, the applicant infers that its obligation was exclusively to plant the trees and did not in any event involve their subsequent survival, since any subsequent destruction of the trees could not be attributed to the municipality. Therefore, it considers that its legal obligation was exhausted with regard to provision of the works and it was not possible in that connection to seek the payment of sums from it, except where the documentation submitted did not meet the eligibility conditions laid down by the decision.

Also, the applicant submits that the contested measure infringes the general principle requiring reasons to be stated for measures of the Community institutions and the general principle of the protection of legitimate expectations.

24.11.2007

Official Journal of the European Union

C 283/29

Action brought on 7 September 2007 — FMC Chemical and Others v Commission

(Case T-350/07)

(2007/C 283/54)

Language of the case: English

Parties

Applicants: FMC Chemical SPRL (Brussels, Belgium), Arysta Lifesciences SAS (Nogueres, France), Belchim Crop Protection NV (Londerzeel, Belgium), FMC Foret SA (Barcelona, Spain), F&N Agro Slovensko s.r.o. (Bratislava, Slovakia), F&N Agro Česká republika s.r.o. (Prague, Czech Republic), F&N Agro Polska (Warsaw, Poland), FMC Corp. (Philadelphia, United States) (represented by: K. Van Maldegem, C. Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annulment of Commission Decision 2007/416/EC;

—	declare the illegality and inapplicability vis-à-vis the applicants and the review of the Carbofuran dossiers of Article 20 of Commission Regulation (EC) No 1490/2002;

—	order the defendant to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicants are identical or similar to those relied on in Case T-326/07 Cheminova and Others v Commission.

24.11.2007

Official Journal of the European Union

C 283/30

Action brought on 13 September 2007 — SOMM v OHIM

(Case T-351/07)

(2007/C 283/55)

Language of the case: Italian

Parties

Applicant: SOMM Srl (San Mauro T.se, Italy) (represented by M. Ferro, lawyer)

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

Form of order sought

—	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 28 June 2007 in Case R 1653/2006-1 concerning Community trade mark application No 4 837 746;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark described as follows: ‘Three-dimensional whole constituted by a large number of tubular posts of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top, a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’; Application No 4 837 736 for goods in Classes 6 and 19.

Decision of the Examiner: Refusal of the application for registration.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Error in determining the relevant public and the sector of reference and also the acquisition of distinctive character of the mark in question pursuant to Article 7(3) of Regulation (EC) No 40/94 on the Community trade mark.

24.11.2007

Official Journal of the European Union

C 283/30

Action brought on 17 September 2007 — Publicare Marketing v OHIM (Publicare)

(Case T-358/07)

(2007/C 283/56)

Language of the case: German

Parties

Applicant: Publicare Marketing Communications GmbH (Frankfurt, Germany) (represented by B. Mohr, lawyer)

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

Form of order sought

—	Annul the Decision of the Fourth Board of Appeal of 27 June 2007 in Case R 157/2007-4;

—	Order OHIM to have the mark ‘Publicare’, application No 4 733 069, entered in the register.

Pleas in law and main arguments

Community trade mark concerned: the verbal mark ‘Publicare’ for services in Classes 35, 38 and 42 (application No 4 733 069).

Decision of the Examiner: refusal of the application.

Decision of the Board of Appeal: dismissal of the appeal.

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

24.11.2007

Official Journal of the European Union

C 283/31

Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-26/06, Bertolete and Others v Commission

(Case T-359/07 P)

(2007/C 283/57)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, acting as Agents)

Other parties to the proceedings: M. Bertolete (Wolowé-Saint-Lambert, Belgiun), A.P. Cunha Correia (Koekelberg, Belgium), M. Lichteveld (Wavre, Belgium), M. Mozelsio (Enghien, Belgium), F. Orlando (Anderlecht, Belgium), F. Pendville (Etterbeek, Belgium), B. Simons (Bocholt, Belgium), D. Sneessens (Auderghem, Belgium), S. Voisin (Forest, Belgium)

Form of order sought by the appellant

—	Annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-26/06;

—	refer the case back to the Civil Service Tribunal;

—	reserve the costs;

—

in the alternative, annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-26/06 and, in determining the present case itself, grant the forms of order sought by the defendant at first instance, and therefore, dismiss the action in Case F-26/06; order the defendant in the appeal to pay the costs.

Pleas in law and main arguments

By judgment of 5 July 2007 in Case F-26/06, Bertolete and Others v Commission, the Civil Service Tribunal (CST) annulled the decisions by which the Commission fixed the applicants' grading and remuneration under contracts for members of the contract staff. The applicants, former salaried employees under Belgian law, were engaged as nursery school teachers following a change to the regime applicable to other servants of the Communities.

The Commission's first plea in support of its appeal alleges an error of law in that the Civil Service Tribunal misconstrued the scope of the principle of equal treatment in its interpretation of the applicable provisions, in particular in relation to the definition used by the Commission to include family allowances in the definition of remuneration.

The second plea alleges breach of the principle of the obligation to state reasons in that the Civil Service Tribunal did not rule on the concept of remuneration.

24.11.2007

Official Journal of the European Union

C 283/31

Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-24/06 Abarca Montiel and Others v Commission

(Case T-360/07 P)

(2007/C 283/58)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by D. Martin and L. Lozano Palacios, Agents)

Other parties to the proceedings: S. Abarca Montiel (Wauthier-Braine, Belgium), K. Adams (Wavre, Belgium), M. Alvarez y Bejerano (Sint-Pieters-Leeuw, Belgium), C. Baesens (Brussels, Belgium), C. Blancke (Brussels, Belgium), V. Bruneel (Kampenhout, Belgium), G. Butera (Rebecq, Belgium), C. Clarie (Denderhoutem, Belgium), G. Gallo (Zellik-Asse, Belgium), C. Gilis (Ganshoren, Belgium), I. Gillard (Gingelom, Belgium), C. Kremer (Laeken, Belgium), D. Maris (Schaerbeek, Belgium), M. Menacho y Sanchez (Zellik-Asse, Belgium), R. Thiry (Herstal, Belgium), S. Timmermans (Brussels, Belgium), R. Tuts (Boutersem, Belgium), E. Tzikas (Anderlecht, Belgium), C. Van Droogenbroeck (Eghezee, Belgium), C. Willems (Liernu, Belgium)

Form of order sought by the appellant

—	Set aside the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-24/06;

—	Refer the case back to the Civil Service Tribunal;

—	Reserve the costs;

—	In the alternative, set aside the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-24/06 and, ruling itself on the dispute, allow the form of order sought by the defendant at first instance and, accordingly, dismiss the action in Case F-24/06; order the respondents to pay costs.

Pleas in law and main arguments

By judgment of 5 July 2007 delivered in Case F-24/06 Abarca Montiel and Others v Commission, the Civil Service Tribunal annulled the decisions by which the Commission fixed the classification and remuneration of the applicants under their contracts as members of the contract staff. The applicants, former salaried employees under Belgian law, were taken on as nursery attendants following a change in the conditions of employment of other servants of the Communities.

The Commission's first plea in support of its appeal alleges an error of law by the Tribunal in so far as it failed to have proper regard for the scope of the principle of equality of treatment in its interpretation of the applicable provisions, in particular with regard to the approach followed by the Commission of including family allowances in the concept of remuneration.

The second plea alleges infringement of the principle that reasons must be stated in so far as the Civil Service Tribunal failed to rule on the concept of remuneration.

24.11.2007

Official Journal of the European Union

C 283/32

Appeal brought on 19 July 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-25/06, Ider and Others v Commission

(Case T-361/07 P)

(2007/C 283/59)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, Agents)

Other party to the proceedings: B. Ider (Halle, Belgium), M.-C. Desorbay (Meise, Belgium) and L. Noschese (Braine-le-Château, Belgium)

Form of order sought by the appellant

—	Annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-25/06;

—	refer the case back to the Civil Service Tribunal;

—	reserve the costs;

—

in the alternative, annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-25/06 and, in determining the present case itself, grant the forms of order sought by the defendant at first instance, and therefore, dismiss the action in Case F-25/06; order the defendant in the appeal to pay the costs.

Pleas in law and main arguments

By judgment of 5 July 2007 in Case F-25/06, Ider and Others v Commission, the Civil Service Tribunal (CST) annulled the decision by which the Commission fixed Ms Ider's remuneration under a contract for a member of the contract staff. The applicants, former salaried employees under Belgian law, were engaged as temporary members of staff entrusted with executive duties following a change to the regime applicable to other servants of the Communities.

The second plea alleges breach of the principle of the obligation to state reasons in that the Civil Service Tribunal did not rule on the concept of remuneration.

24.11.2007

Official Journal of the European Union

C 283/32

Action brought on 17 September 2007 — Thomson Sales Europe v Commission

(Case T-364/07)

(2007/C 283/60)

Language of the case: French

Parties

Applicant: Thomson Sales Europe (Boulogne-Billancourt, France) (represented by: F. Goguel and F. Foucault, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the Commission decision of 20 July 2007;

—	Rule that the applicant is entitled to exemption from post-clearance recovery of anti-dumping duties pursuant to Article 220(2)(b) of the Community Customs Code (1) and to Article 871 et seq. of Regulation No 2454/93 (2).

Pleas in law and main arguments

By the present action, the applicant seeks annulment of the decision which it claims is contained in a Commission letter of 20 July 2007 stating that the Commission lacks the competence to rule on the applicant's request to the French authorities that it be exempted from post-clearance recovery of duties on the importation of colour television receivers manufactured in Thailand. The applicant's request was forwarded to the Commission by the French authorities as an annex to the application based on Article 239 of the Community Customs Code concerning the remission of import duties (3).

The applicant claims that the Commission was also under an obligation to rule on the application based on Article 220(2)(b) of the Community Customs Code and, by way of a separate letter, requested it to take a decision. In the present action, the applicant contests a decision which it claims is contained in the Commission letter addressed to it in response to its own letter.

The applicant claims that the Commission erred in law by finding that the French authorities had referred the case to it exclusively on the basis of Article 239 of the Community Customs Code, given that, according to the applicant, the documents received by the Commission met the requirements of Article 871 et seq. of Regulation No 2454/93. The applicant takes the view that the Commission is under an obligation to examine whether the conditions for application of Article 220(2)(b) of the Community Customs Code were met in this case, particularly in view of the fact that it had decided to reject its request for remission based on Article 239 of the Code.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

(3) Decision of the Commission of 7 May 2007 ruling on that application and indicating to the French authorities that it was not justified in the applicant's case to accord remission of the duties on importation which were the subject of an action for annulment before the Court of First Instance in Case T-225/07 Thomson Sales Europe v Commission (notice published in OJ C 211, 8.9.2007, p. 36).

24.11.2007

Official Journal of the European Union

C 283/33

Action brought on 17 September 2007 — Traxdata France v OHIM — Ritrax (TRAXDATA, TEAM TRAXDATA)

(Case T-365/07)

(2007/C 283/61)

Language in which the application was lodged: English

Parties

Applicant: Traxdata France SARL (Paris, France) (represented by: F. Valentin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ritrax Corp. Ltd (London, United Kingdom)

Form of order sought

—

Reverse the decision of 23 May 2007 handed down by the First Board of Appeal of the Office for Harmonisation in the Internal Market in joined cases R 1337/2005-1, R 1338/2005-1, R 1339/2005-1 and R 1340/2005-1 and to accordingly declare the invalidity of TRAXDATA CTMs No 000007393, No 000877779, No 001252725 and TEAM TRAXDATA No 000877910 for all of the products and services listed in classes 9, 16 and 42, on the basis of Article 52(1)(c) of the CTMR of 20 December 1993;

—

pronounce the invalidity of TEAM TRAXDATA CTM No 000877910, for the following services listed in class 36: ‘Financial sponsorship of sports and leisure activities; financial sponsorship of sporting competitions, events and teams; financial sponsorship of sportsmen and sportswomen […] advice and consultancy services in relation to all the aforesaid services’;

—

pronounce the invalidity of TRAXDATA CTMs No 000877779 and TEAM TRAXDATA No 000877910, for the following services listed in class 41: ‘entertainment and education services; arranging and conducting of conferences, congresses, seminars, symposiums, […] electronic game services provided by means of the Internet; publishing of books, magazines and periodicals; […] amusement centre services; […] rental of video cassettes, audio cassettes, compact discs and cine films; advice and consultancy services relating to all the aforesaid services.’

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word and figurative marks ‘TRAXDATA’ and ‘TEAM TRAXDATA’ for goods and services in classes 9, 16, 36, 41 and 42 — Community trade marks No 877 910, 877 779, 7 393 and 1 252 725

Proprietor of the Community trade mark: Ritrax Corp. Ltd

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The unregistered corporate name ‘TRAXDATA FRANCE SARL’ and trade name ‘TRAXDATA’ for the following goods and services: ‘consultancy, delivery and sale of computer consumables, hardware and accessories’

Decision of the Cancellation Division: Rejection of the applicant's requests for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal infringed Article 52(1)(c) read in conjunction with Article 8(4) of Council Regulation No 40/94 by finding that the applicant had not furnished proof that it continues to make use of ‘TRAXDATA’ and by improper application of the criteria of likelihood of confusion between the conflicting trade marks.

24.11.2007

Official Journal of the European Union

C 283/34

Action brought on 24 September 2007 — Procter & Gamble v OHIM — Prestige Cosmetics (P&G PRESTIGE BEAUTE)

(Case T-366/07)

(2007/C 283/62)

Language in which the application was lodged: English

Parties

Applicant: The Procter & Gamble Company (Cincinnati, United States) (represented by: K. Sandberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Prestige Cosmetics Srl (Anzola Emilia, Italy)

Form of order sought

—	The decision of the Second Board of Appeal of 19 July 2007 in Case R 681/2006-2 be overruled;

—	the opposition No B 311 318 dated 2 October 2000 be rejected as far as this opposition was upheld by the decision of the Opposition Division of 21 March 2006;

—	the defendant be ordered to bear the costs of the proceedings;

—	the intervener be ordered to bear the costs of the proceedings before the Office for Harmonisation.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘P&G PRESTIGE BEAUTE’ for inter alia goods in class 3

Proprietor of the mark or sign cited in the opposition proceedings: Prestige Cosmetics Srl

Mark or sign cited: The national figurative marks ‘prestige’ for goods in class 3

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 since there is no likelihood of confusion between the trade mark applied for and the earlier marks as the goods covered by the trade marks are dissimilar and the trade marks clearly differ.

24.11.2007

Official Journal of the European Union

C 283/34

Action brought on 17 September 2007 — Dow AgroSciences and Others v Commission

(Case T-367/07)

(2007/C 283/63)

Language of the case: English

Parties

Applicants: Dow AgroSciences Ltd (Hitchin, United Kingdom), DOW AgroSciences BV (Rotterdam, Netherlands), Dow AgroSciences Danmark A/S (Lyngby-Taarbæk, Denmark), Dow AgroSciences GmbH (Stade, Germany), Dow AgroSciences SAS (Mougins, France), Dow AgroSciences Export SAS (Mougins, France), Dow AgroSciences Hungary kft (Budapest, Hungary), Dow AgroSciences Italia Srl (Milan, Italy), Dow AgroSciences Polska sp. z o.o. (Warsaw, Poland), Dow AgroSciences Distribution SAS (Mougins, France), Dow AgroSciences Iberica, SA (Madrid, Spain), Dow AgroSciences s.r.o. (Prague, Czech Republic) and Dow AgroSciences LLC (Indianapolis, United States) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Order the annulment of Commission Decision 2007/437/EC;

—	declare the illegality and inapplicability vis-à-vis the first applicant and the review of its Haloxyfop-R dossier of Article 20 of Commission Regulation (EC) No 1490/2002;

—	order the defendant to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicants are identical or similar to those relied on in Case T-326/07 Cheminova and Others v Commission.

24.11.2007

Official Journal of the European Union

C 283/35

Action brought on 26 September 2007 — Lithuania v Commission

(Case T-368/07)

(2007/C 283/64)

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, Agent)

Defendant: Commission of the European Communities

Form of order sought

—	declare Commission Decision C(2007) 3407 final of 13 July 2007 (1) to be invalid;

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

Pleas in law and main arguments

The applicant submits that the contested decision, of which it was notified on 16 July 2007, is unlawful and sets out the following grounds in law:

1. The Commission exceeded its powers.

The applicant submits that, in taking a unilateral decision in regard to the definitive content of Lithuania's national allocation plan, the Commission exceeded the powers conferred on it by Directive 2003/87/EC inasmuch as, while the provisions of that directive empower the Commission to assess the national allocation plans prepared by the Member States, they do not confer powers on it to determine total quantities of pollution emission allowances while overlooking entirely the national allocation plans prepared and submitted by the Member States.

2. Breach of European Community law.

2.1.

Failure to have regard for the objectives of Directive 2003/87/EC: by deciding, in the contested decision, on a national level for emissions over the period 2008 to 2012 which is lower than that required in the light of the obligations assumed by Lithuania pursuant to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, the Commission failed to have regard for the actual objectives of Directive 2003/87 as an effective instrument, from the economic point of view, for giving effect to the obligations assumed by the parties to the Kyoto Protocol in respect of greenhouse gas emissions.

2.2.

Infringement of the principles of sound administration and genuine cooperation: the contested decision infringes the principles of sound administration and genuine cooperation inasmuch as the Commission, having disregarded the assessment made when the national Lithuanian allocation plan was being prepared and having essentially failed to consult with Lithuania, carried out a separate assessment based on its own selected methodology for the purpose of determining the maximum quantity of pollution emission allowances.

2.3.

Breach of the provisions of Directive 2003/87/EC and infringement of the principle of legal certainty: the contested decision breaches Articles 9(1) and 11(2) of Directive 2003/87 inasmuch as, in disregard of the figures submitted in the Lithuanian national allocation plan, and rejecting the method of calculation applied by Lithuania as being inappropriate, the Commission relied exclusively and solely on the figures obtained through application of the method which it itself had selected for the purpose of determining the maximum quantity of pollution emission allowances to be allocated. Moreover, in applying that methodology, of which Lithuania knew nothing in advance, the Commission infringed the principle of legal certainty.

2.4.

Infringement of the principle of non-discrimination: the contested decision infringes the principle of non-discrimination inasmuch as the Commission, having applied its own selected method for determining the maximum quantity of pollution emission allowances, failed to have regard to the specific situation of Lithuania. The decision has also resulted in situations which are essentially different being treated in the same way.

2.5.

Non-compliance with Article 9(1) and (3) of Directive 2003/87/EC and with the fourth criterion in Annex III to that directive: the contested decision is in breach of the obligation contained in Article 9 of Directive 2003/87 and based on the criteria listed in Annex III thereto, inasmuch as it fails, without reason, to take account of the fourth criterion in that annex and of the need in Lithuania to increase electricity generation in plants burning fossil fuel as a result of the undertaking given to shut down the Ignalina atomic power station by 2009.

3. Breach of essential procedural requirements under European Community legislation.

The applicant submits that the contested decision was adopted in a manner which infringed essential procedural requirements inasmuch as, first, the Commission breached the provisions of Directive 2003/87/EC by essentially refusing, in the contested decision, to review Decision C(2006) 5613 final, and second, the contested decision is inappropriately and inadequately reasoned and consequently the requirements set out in Article 253 EC and Article 9(3) of Directive 2003/87 have been breached. Furthermore, the Commission failed to comply with the procedural requirement in that directive relating to the duration of the assessment.

4. Manifest misappraisal.

In the opinion of the applicant, when it examined Lithuania's amended national allocation plan, the Commission, first, failed to take account of the specific and objective circumstances which were stressed by Lithuania and which led to the level of pollution emissions which arose, and, second, applied an inappropriate method of calculation and based itself on inaccurate data, which led to the fixing of an incorrect maximum quantity of pollution emission allowances granted to Lithuania.

(1) Commission Decision of 13 July 2007 on the amendment of the national plan for the allocation of greenhouse gas emission allowances notified by Lithuania under Article 3(3) of Commission Decision C(2006) 5613 (final) on the national plan for the allocation of greenhouse gas emission allowances notified by Lithuania under Directive 2003/87/EC of the European Parliament and the Council.

24.11.2007

Official Journal of the European Union

C 283/36

Action brought on 26 September 2007 — Patrick Holding v OHIM — Cassera (Patrick Exclusive)

(Case T-370/07)

(2007/C 283/65)

Language in which the application was lodged: English

Parties

Applicant: Patrick Holding ApS (Fredensborg, Denmark) (represented by: J. Løje, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cassera SpA. (Milan, Italy)

Form of order sought

—	The applicant requests that the decision taken by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 26 July 2007 in case R1447/2005-2 be annulled;

—	that the defendant is ordered to register the contested trademark;

—	that the defendant pays the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Patrick Holding ApS

Community trade mark concerned: The Community figurative mark ‘PATRICK EXCLUSIVE’ for goods in class 25 — application No 2 946 424

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

Mark or sign cited: The Community word mark ‘G. Patrick’ for goods in class and 25 and the national and international word mark ‘G. Patrick’ for goods in classes 24 and 25

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 the Council Regulation (EC) No 40/94.

24.11.2007

Official Journal of the European Union

C 283/36

Action brought on 24 September 2007 — Dimos Kerateas (Municipality of Keratea) v Commission of the European Communities

(Case T-372/07)

(2007/C 283/66)

Language of the case: Greek

Parties

Applicant: Municipality of Keratea (Attiki, Greece) (represented by: A. Papakonstantinou and M. Khaidarlis)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

—

annul Commission Decision E(2004) 5611 of 22 December 2004 concerning the grant of assistance from the Cohesion Fund for the ‘Solid Waste Management Project of the First Attiki District Management Unit in South East Attiki and the Second District Management Unit in Trizinia, 1. Hygienic Landfill Site in the integrated waste management facility at “Vragoni”, Keratea-Lavreotiki, in South East Attiki, 2. Waste transport depot of the Second Attiki District Management Unit in Trizinia’;

—	in the event of doubt, order an on-the-spot inspection in the project area and to seek independent technical opinions to corroborate the applicant's arguments;

—	order the Commission to pay the costs.

Pleas in law and main arguments

As regards its locus standi on the basis of Article 230 EC, the applicant considers that the contested decision, concerning the creation of a Hygienic Landfill Site on an area which is not within the district of the Municipality of Keratea, is of direct and individual concern to it insofar as it is a public body responsible for the protection of public health and the environment in the area of the subsidised project.

The applicant claims that the contested decision — the content of which it maintains came to its notice on 13 August 2007 — infringes a number of provisions of primary Community law for the protection of health and the environment as well as provisions of secondary Community law laying down the relevant detailed provisions.

Specifically, the applicant claims that the financing of the project contravenes the aims of maintaining, protecting and improving the quality of the environment, the protection of public health and the prudent and rational use of physical resources. In addition, in the applicant's view, the contested Commission decision infringes first and foremost Articles 3, 4 and 6 of Directive 75/442 (1) and Articles 3 and 4 of Directive 91/156 (2), which lay down specific obligations in the areas of prevention or reduction of waste production and its harmfulness.

Lastly, according the applicant, it is clear that the creation of a waste management and disposal facility within a protected area cannot in any circumstances be regarded as a project eligible for financing by a financial instrument such as the Cohesion Fund, which by definition should finance only works complying with the requirements of protection of the environment.

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(2) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

24.11.2007

Official Journal of the European Union

C 283/37

Action brought on 27 September 2007 — EOS v OHIM (PrimeCast)

(Case T-373/07)

(2007/C 283/67)

Language of the case: German

Parties

Applicant: EOS GmbH Electro Optical Systems (Krailling, Germany) (represented by M. Mentjes, lawyer)

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

Form of order sought

—	Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 20 July 2007 in Case R 333/2005-4, notified to the applicant by facsimile on 27 July 2007;

—	Order the defendant to pay the costs in accordance with Article 87(2) and (5) of the Rules of Procedure.

Pleas in law and main arguments

Community trade mark concerned: the verbal mark ‘PrimeCast’ for goods and services in Classes 1, 19, 40 and 42 (Application No 2854677).

Decision of the Examiner: refusal in part of the application.

Decision of the Board of Appeal: dismissal of the appeal.

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

24.11.2007

Official Journal of the European Union

C 283/37

Action brought on 22 September 2007 — Pachtitis v Commission of the European Communities and EPSO

(Case T-374/07)

(2007/C 283/68)

Language of the case: Greek

Parties

Applicant: Demetrios Pachtitis (Athens, Greece) (represented by: P. Giatagantzidis, B. Niangou, lawyers)

Defendant: Commission of the European Communities and the European Personnel Selection Office (EPSO)

Form of order sought

—	annul the decision by EPSO of 27 June 2007 and its implied decision to reject the applicant's confirmatory application of 10 July 2007, relating to his right to access to EPSO documents;

—

order EPSO to send to him (i) a true copy of the questions put to him and his answers at the two preliminary tests (a) and (b) when he took part in the Open Competition EPSO/AD/77/06 (OJ C 277 A, p. 1) to constitute a reserve list for recruitment by the European institutions of administrator linguists (AD 5) having Greek as main language, in the field of translation and (ii) a true copy of the list of correct answers to those two preliminary tests taken by him;

—	order the Commission of the European Communities and EPSO to pay the costs.

Pleas in law and main arguments

The applicant claims that the refusal of the European Personnel Selection Office (EPSO) to provide to him a true copy of the questions put to him and his answers at the two preliminary tests (a) and (b) when he took part in the Open Competition EPSO/AD/77/06 (OJ C 277 A, p. 1) and a true copy of the list of the correct answers to those preliminary tests taken by him, is a decision which is unlawful and insufficiently justified, given that it infringes his right to access to the documents of the European institutions under Article 255 EC and Articles 2 and 4 of Regulation (EC) No 1049/2001 (1), and that the statement of its reasons is very vague and infringes Article 253 EC. At the same time, according to the applicant, the refusal of EPSO to produce the above documents is contrary to the principles of transparency, proper administration, legal certainty and the protection of the legitimate expectations of citizens.

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

24.11.2007

Official Journal of the European Union

C 283/38

Action brought on 3 October 2007 — Poland v Commission

(Case T-379/07)

(2007/C 283/69)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: T. Nowakowski, Agent)

Defendant: Commission of the European Communities

Form of order sought

—	declare invalid Commission Regulation (EC) No 804/2007 of 9 July 2007 establishing a prohibition of fishing for cod in the Baltic Sea (Subdivisions 25-32, EC Waters) by vessels flying the flag of Poland (1);

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

Pleas in law and main arguments

The applicant seeks a declaration that Commission Regulation (EC) No 804/2007 of 9 July 2007 establishing a prohibition of fishing for cod in the Baltic Sea (Subdivisions 25-32, EC Waters) by vessels flying the flag of Poland is invalid. The contested regulation provides that, as from 11 July 2007, the part of the catch quota for cod allocated to the applicant for 2007 in the Baltic Sea is deemed to have been exhausted and prohibits, for the period from 11 July 2007 to 31 December 2007, further fishing for cod in that area by vessels flying the Polish flag and the retention on board, transhipment or landing of cod caught by such vessels.

In support of its contention, the applicant accuses the Commission of committing flagrant mistakes in calculating the quantities of cod landed by Polish fishing vessels and alleges a breach of Council Regulation (EC) No 1941/2006 of 11 December 2006 fixing the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in the Baltic Sea for 2007 (2). In the context of the present head of complaint the applicant submits that the Commission based its findings in respect of the amounts of cod caught by Polish fishing vessels on data which, in the applicant's opinion, are arbitrary and unrepresentative, derived from inspections carried out by the Commission's own inspectors and in disregard of data from the Polish Sea Fishing Information System.

The applicant further submits that the contested regulation infringes the principle of proportionality inasmuch as, in its view, the prohibition of catches which it introduces gives rise to fundamental unfavourable socio-economic effects which are significantly greater than the hypothetical advantages with regard to the conservation of cod stocks. The applicant accuses the Commission of foregoing an appraisal of those effects before it adopted the contested regulation and of failing to consider the possibility of attaining the objectives pursued by using means which would be less detrimental to the society and economy of maritime areas.

In the grounds of its action the applicant also argues that the contested regulation is inadequately reasoned and that this, in its opinion, makes it impossible to verify the expediency and legality of the prohibition which it introduces.

The applicant also alleges infringement of the principle of solidarity and genuine cooperation, and criticises the Commission for failing to engage in dialogue and not making it possible for the applicant to clarify certain contentious issues before it adopted the contested regulation.

The applicant concludes by contending that the contested regulation infringes the right freely to exercise an economic activity inasmuch as the prohibition of catches which it introduces affects persons who are unable in practical terms to alter the type of activity which they pursue and for whom fishing is their only means of subsistence, a fortiori as that prohibition is total and does not allow of any exceptions.

(1) OJ 2007 L 180, p. 3.

(2) OJ 2006 L 367, p. 1.

24.11.2007

Official Journal of the European Union

C 283/39

Action brought on 25 September 2007 — Kaloudis v OHIM — Fédération Française de Tennis (Roland Garros SPORTSWEAR)

(Case T-380/07)

(2007/C 283/70)

Language in which the application was lodged: French

Parties

Applicant: Dimitrios Kaloudis (Dassia-Corfu, Greece) (represented by: G. Kaloudis, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Fédération Française de Tennis

Form of order sought

—	Annul the Decision of the Fourth Board of Appeal of OHIM of 19 July 2007;

—	Allow the application for the Community trade mark Roland Garros SPORTSWEAR No 3114477 for Class 25;

—	Order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: figurative mark ‘Roland Garros SPORTSWEAR’ for goods in Class 25 — application No 3114477.

Proprietor of the mark or sign cited in the opposition proceedings: Fédération Française de Tennis

Mark or sign cited in opposition: national mark ‘Roland Garros’ for goods in Classes 3, 16, 18, 22, 25, 28, 32, 41 and 42.

Decision of the Opposition Division: opposition upheld for all the goods in dispute.

Decision of the Board of Appeal: appeal brought by the applicant deemed not filed by reason of the late payment of the appeal fee.

24.11.2007

Official Journal of the European Union

C 283/39

Action brought on 27 September 2007 — Italy v Commission

(Case T-381/07)

(2007/C 283/71)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

—

annul Memorandum No 007584 of 18 July 2007 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested. Ref. DOCUP Toscana Ob. 2 (No CCI 2000 IT 16 2DO 001);

—

annul Memorandum No 009059 of 21 August 2007 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning certification and the intermediate statement of expenses and claim for payment. Ref. DOCUP Veneto Ob. 2 2000-2006 (No CCI 2000 IT 16 2DO 005);

—

annul Memorandum No 009061 of 21 August 2007 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested. Ref. DOCUP Ob. 2 ‘Lazio’ 2000-2006 (No CCI 2000 IT 16 2DO 009);

—

annul Memorandum No 009249 of 29 August 2007 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested. Ref. DOCUP Piemonte 2000-2006 (No CCI 2000 IT 16 2DO 007);

—

annul Memorandum No 009525 of 6 September 2007 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested. Ref. POR ‘Campania’ 2000-2006 (No CCI 1999 IT 16 1PO 007);

—	annul all related and prior acts and, consequently, order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-345/05 Italian Republic v Commission (1).

(1) OJ C 262 of 23.10.2004, p. 55.

24.11.2007

Official Journal of the European Union

C 283/40

Action brought on 5 October 2007 — France v Council

(Case T-382/07)

(2007/C 283/72)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliart, G. de Bergues and A.-L. During, Agents)

Defendant: Council of the European Union

Form of order sought

—	Annul Council Regulation (EC) No 809/2007 of 28 June 2007 amending Regulations (EC) No 894/97, (EC) No 812/2004 and (EC) No 2187/2005 as concerns drift nets (1);

—	Order the Council to pay the costs.

Pleas in law and main arguments

The Regulation contested in the context of the present action is intended to give a uniform definition of drift nets. The applicant disputes the definition as laid down by the Regulation in that it includes nets such as ‘thonailles’ in the category of drift nets and thus includes them within the scope of the prohibition on their use laid down in Article 11a of Regulation No 894/97 (2).

In support of its action, firstly, the applicant submits that the contested regulation must be annulled because of lack of reasoning since it does not state the reasons for which it widens the scope of the restrictions on use applicable to drift nets to include stabilised nets such as thonailles.

Secondly, it submits that the contested regulation also breaches the principle of proportionality in that the prohibition of drift nets, as they are defined, is manifestly inappropriate having regard, on the one hand, to the objectives pursued by that prohibition and, on the other, to the particular characteristics of the thonaille in comparison with other types of drift net.

Finally, the applicant claims that the prohibition on drift nets as defined in Regulation No 809/2007 is discriminatory in that treating the thonaille type of net in the same manner as other drift nets is not justified, having regard to their characteristics.

(1) OJ 2007 L 182, p. 1.

(2) Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain technical measures for the conservation of fishery resources (OJ 1997 L 132, p. 1).

24.11.2007

Official Journal of the European Union

C 283/40

Action brought on 10 October 2007 — Comune di Napoli v Commission

(Case T-388/07)

(2007/C 283/73)

Language of the case: Italian

Parties

Applicant: Comune di Napoli (represented by: F. Sciaudone, lawyer, and G. Tarallo, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Decision C(2007) 3893 of the European Commission of 8 August 2007;

—	order the Commission to make good the damage;

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

Pleas in law and main arguments

This action seeks the annulment of Commission Decision C(2007) 3893 of 8 August 2007, by which the defendant made a financial correction in the assistance granted by the European Regional Development Fund (ERDF) to the applicant for the development of a ‘Rete di piazze telematiche [infrastructure for universal access to information highways] per la Città di Napoli’, together with compensation for the damage caused by that decision.

In support of its application for annulment of the contested decision, the applicant makes the following submissions:

—

The decision is illogical, inadequate and completely wanting any legal and factual grounds, insofar as the Commission deliberately failed to take account of all the parameters (both as to form and substance) which should have been examined for the purposes of the correct application of Article 24 of Regulation No 4253/88 and, consequently, its own assessment as to whether the applicant is responsible for the irregularities of which it is accused is irremediably vitiated.

—

The concept of irregularity in Article 24 of Regulation No 4253/88 has been misinterpreted and misapplied, insofar as the objections levelled against the applicant do not come within the definition of ‘significant changes’ affecting the nature or conditions of the operation that is being financed or, even less, within the category of ‘sums received unduly’ for the purposes of the Community budget.

—

The Commission is responsible for the initial delay of the project, insofar as, even though the date for the initiation of the Project and for the eligibility of expenditure was 1 July 1997, the funding agreement was approved by the Commission on 14 July 2007 and notified to the Comune di Napoli only on 25 July 1997.

—	The failure to take into account, for the purposes of assessing the eligibility of the expenditure, the entire seven-month period which it took the Commission to approve the amended version of the project submitted by the applicant.

—	The Commission incorrectly concluded that the discovery of asbestos and the subsequent delay caused by its removal did not constitute force majeure.

—

The suspensory effect of the judgment of the Tribunale Amministrativo Regionale was incorrectly limited to the period between 2 August 2001 (date of the judgment) and 5 December 2001 (date when the judgment on appeal of the Consiglio di Stato was notified to the applicant) and that period was limited to invoices issued in connection with the contract for the supply of computer technology, the subject matter of the suspension itself.

—

Breach of the principle of proportionality, insofar as the Commission totally failed to take account, for the purposes of calculating the reduction in the assistance, of the fact that the applicant had acted in good faith, that the (alleged) irregularities were of a negligible nature and seriousness, that the operation being financed was actually completed and, lastly, the fact that the responsibility for the facts alleged must be attributed in part to the Commission itself and in part to force majeure.

—	Breach of the obligation to state reasons, insofar as the Decision does not explain why the alleged irregularities are to be regarded as ‘significant’.

—

As regards compensation for damage, the applicant submits that, even if the Commission's conduct were not found to be unlawful, it has nonetheless caused damage to the applicant. The decision ordering repayment, in particular, caused wholly unforeseeable and exceptional damage, especially in view of the fact that the operation was completed successfully and with the congratulations of the Commission itself.

24.11.2007

Official Journal of the European Union

C 283/42

Judgment of the Civil Service Tribunal (First Chamber) of 9 October 2007 —Bellantone v Court of Auditors

(Case F-85/06) (1)

(Staff cases - Officials - Member of the temporary staff appointed as an official - Notice of termination of employment - Severance grant - Daily subsistence allowance - Material damage)

(2007/C 283/75)

Language of the case: French

Parties

Applicant: Gerardo Bellantone (Luxembourg, Luxembourg) (represented by: T. Bontinck and J. Feld, lawyers)

Defendant: Court of Auditors of the European Communities (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, Agents)

Re:

First, annulment of the decision of the Secretary-General of the Court of Auditors of 30 March 2006 rejecting the complaint of the applicant, a former member of the temporary staff appointed as an official, seeking payment of the balance of the allowance in lieu of additional notice, of the severance grant and of the daily subsistence allowance, and, second, a claim for damages

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Bellantone to bear three quarters of his own costs;

3.	Orders the Court of Auditors of the European Communities to bear its own costs and to pay one quarter of Mr Bellantone's costs.

(1) OJ C 237, 30.9.2006, p. 18.

24.11.2007

Official Journal of the European Union

C 283/42

Order of the Civil Service Tribunal (First Chamber) of 11 September 2007 — O'Connor v Commission

(Case F-12/07) (1)

(Staff case - Other servants - Consecutive contracts as a member of the temporary staff, auxiliary staff and contract staff - Maximum period of payment of unemployment allowance - Admissibility)

(2007/C 283/76)

Language of the case: French

Parties

Applicant: Elizabeth O'Connor (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J. -N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: D. Martin and M. Velardo, Agents)

Re:

Annulment of the decision to set the maximum period for the award of an unemployment allowance to the applicant at 11 months and 25 days, instead of 17,83 months, where the former member of the Commission staff had been employed by the latter under different contracts as a member of the temporary staff, the auxiliary staff and the contract staff from 16 January 2001 to 31 December 2005.

Operative part of the order

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

2.	The Commission of the European Communities is ordered to bear all the costs, including those of the applicant including any incurred in the context of her application for legal aid.

(1) OJ C 95, 28.4.2007, p. 57.

24.11.2007

Official Journal of the European Union

C 283/43

Order of the Civil Service Tribunal (First Chamber) of 10 October 2007 — Pouzol v Court of Auditors

(Case F-17/07) (1)

(Staff cases - Official - Pensions - Transfer of pension rights acquired before entry into the service of the Communities - Inadmissibility)

(2007/C 283/77)

Language of the case: French

Parties

Applicant: Michel Pouzol (Combaillaux, France) (represented by: D. Grisay, I. Andoulsi, and D. Piccininno, lawyers)

Defendant: Court of Auditors of the European Communities (represented by: T. Kennedy, J.-M. Stenier and G. Cortens, Agents)

Re:

Annulment of the Court of Auditors' decision of 23 November 2006 declaring inadmissible the complaint brought by the applicant against the Commission's decision of 18 May 2006 — Acknowledgment of the applicant's right to a supplementary premium in his years of pensionable service — Application for damages.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Each party is ordered to bear its own costs.

(1) OJ C 117, 26.5.2007, p. 35.

24.11.2007

Official Journal of the European Union

C 283/43

Action brought on 26 June 2007 — Patsarika v Cedefop

(Case F-63/07)

(2007/C 283/78)

Language of the case: Greek

Parties

Applicant: Maria Patsarika (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: European Centre for the Development of Vocational Training (Cedefop)

Form of order sought

—	annul the decision of Cedefop of 20 September 2006 (ref: Directorate/AMB/2006/380) terminating the applicant's fixed-term contract with Cedefop at the end of her probationary period;

—

annul the decision of the Appeals Committee of Cedefop (16 March 2007), which rejected the applicant's complaint seeking annulment of the abovementioned decision, and which contains the reasons of the appointing authority regarding notice of termination of the applicant's contract (this decision is not the subject of independent challenge);

—	order Cedefop to pay damages of an amount equal to the entirety of the applicant's salary, allowances and pension rights corresponding to the period from 1 October 2006 to 30 September 2007, less the amount of the compensation on dismissal that was granted;

—	order Cedefop to pay the applicant damages of EUR 20 000 on account of the non-material harm which she has suffered.

Pleas in law and main arguments

By decision of 20 September 2006, Cedefop dismissed the applicant with effect from the end of her probationary period. The applicant submits first of all that case-law was infringed in relation to her probationary period since it was not completed under normal conditions. In addition, the adoption of the decision regarding her dismissal involved a misuse of powers and the exceeding of the limits of the available discretion, and the decision was based on a manifest error of assessment. The assessment report which was drawn up before the end of the applicant's probationary period proposed her dismissal, despite her satisfactory professional efficiency and conduct in the service, because of ‘doubts as to her moral qualities’. Those doubts were based on events unrelated to the relevant period of employment of the applicant, resulting from her testimony as a witness in another case pending before the Civil Service Tribunal. The content of her testimony in that case is demonstrably correct. Furthermore, no evidence was put forward to support the criticisms regarding her supposed professional inadequacy (which is confined to the evaluative assessments of the deputy director of Cedefop). The applicant further submits that her right to be heard and rights of defence were infringed, as were the principles of objectivity and proportionality. The documents upon which the criticisms of her are based were never communicated to her, nor was she invited to attend the hearing (before the Cedefop Appeals Committee) of her complaint.

24.11.2007

Official Journal of the European Union

C 283/44

Action brought on 17 September 2007 — Evraets v Commission

(Case F-92/07)

(2007/C 283/79)

Language of the case: French

Parties

Applicant: Pascal Evraets (Lambusart, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—

annul the decision of the appointing authority publishing the list of officials promoted to grade AST 4 under the 2006 promotion procedure, in so far as the Commission did not take into account the applicant's eligibility for promotion for the purpose of the 2006 promotion procedure and in so far as the applicant's name is not included in the list of promoted officials;

—	so far as necessary, annul the express decision of the Commission of 6 June 2007 rejecting the complaint brought by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) on 16 February 2007;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a former temporary servant appointed an official in grade AST 3 from 16 April 2004 after being successful in an internal competition, was held to be ineligible for promotion under the 2006 promotion procedure since he had not demonstrated the ability to work in a third language in accordance with Article 45(2) of the Staff Regulations.

In support of his appeal, the applicant is putting forward three pleas, the first of which alleges infringement of Article 45(1) of the Staff Regulations and the illegality of Article 10(5) of the General Provisions Implementing Article 45 of the Staff Regulations (‘the GIP’). The applicant maintains that, under Article 45(1) of the Staff Regulations, which requires two years' service in order to be eligible for promotion, he could have been promoted on 16 April 2006, that is, before the entry into force of the requirement to demonstrate the ability to work in a third language. Article 11 of Annex XIII to the Staff Regulations provides that Article 45(2) does not apply to promotions which take effect prior to 1 May 2006. The applicant submits that, by requiring that he have the ability to work in a third language on the ground that his promotion, under Article 10(5) of the GIP, would not become effective until 1 May 2006, the Commission infringed Article 45(1) of the Staff Regulations.

The second plea alleges unequal treatment and the illegality, first, of Article 11 of Annex XIII to the Staff Regulations and, secondly, of Article 1(1) of the Common Rules on laying down the procedure for implementing Article 45(2) of the Staff Regulations, adopted by the Commission on 19 July 2006. The applicant submits, inter alia, that officials recruited between 15 April 2004 and 30 April 2004 were employed under the same provisions of the Staff Regulations as officials recruited before 15 April 2004, that is, before Article 45(2) of the Staff Regulations came into force. Consequently, by making officials recruited between 15 and 30 April 2004 subject to promotion conditions which are more restrictive than those for officials recruited before 15 April 2004, Article 11 of Annex XIII to the Staff Regulations and Article 1(1) of the Common Rules are discriminatory. Furthermore, the applicant argues that, in accordance with Article 5(3) of Annex XIII to the Staff Regulations, knowledge of a third language is not required for the purposes of the first promotion of officials who, while having been recruited after 1 May 2004, were temporary servants prior to that date. The applicant submits it is unlawful to require knowledge of a third language in the case of officials who, like the applicant, were appointed before that date.

The third plea alleges infringement of the principles of sound administrative management, effectiveness and the protection of legitimate expectations. The applicant submits inter alia that, in the implementation of Article 45(2) of the Staff Regulations, the Commission did not show all the due care and attention necessary and did not meet the legitimate expectations of officials eligible for promotion under the 2006 promotion procedure. Specifically, the Commission failed to adopt adequate transitional provisions and to take the necessary measures in due time to enable the applicant to learn a third language and thus be eligible for promotion.

24.11.2007

Official Journal of the European Union

C 283/44

Action brought on 17 September 2007 — Acosta Iborra and Others v Commission

(Case F-93/07)

(2007/C 283/80)

Language of the case: French

Parties

Applicants: Acosta Iborra and Others (Alkmaar, Netherlands) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Tribunal should:

—

annul the decision of the appointing authority publishing the list of officials promoted under the 2006 promotion procedure, in so far as the Commission did not take into account the applicants' eligibility for promotion in respect of the 2006 promotion procedure and in so far as their names are not included on the list of promoted officials;

—	so far as necessary, annul the Commission's express decisions of 6 June 2007 rejecting the complaint brought by the applicants under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) on 16 February 2007;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicants are relying on very similar pleas to those advanced in Case F-92/07, the notice for which is published in the same issue of the Official Journal of the European Union.

24.11.2007

Official Journal of the European Union

C 283/45

Action brought on 21 September 2007 — Rebizant and Others v Commission

(Case F-94/07)

(2007/C 283/81)

Language of the case: French

Parties

Applicant: Jean Rebizant (Karlsruhe, Germany) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Lois and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—	declare unlawful the decision fixing the promotion thresholds towards grade AD 13 applicable to officials under the ‘Research’/‘Joint Research Centre’ (JRC) and ‘Operations’ budget;

—	annul the decision of the appointing authority not to promote the applicants to grade AD 13 under the 2006 promotion procedure;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants are relying on the following pleas:

—	infringement of Article 5(5) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’);

—	infringement of Article 6(2) of the Staff Regulations and Article 9 of Annex XIII thereof;

—	infringement of the principle of equal treatment.

The applicants state that, by setting the promotion threshold to Grade AD 13 at 98,5 for officials under the Research and JRC budgets, the Commission failed to take into account, first, the jobs which, under Article 9 of Annex XIII to the Staff Regulations, were effectively vacant at the Research DG and the JRC DG and, second, the specific nature of the situation of officials covered by those budgets.

The applicants maintain that, by failing to do this, the Commission has failed to comply with its decision of 20 July 2005 on the procedure for the promotion of officials remunerated from the research section of the general budget, a decision which aims to establish rules ensuring the principle of equal treatment is observed between officials under the different budgets.

24.11.2007

Official Journal of the European Union

C 283/45

Action brought on 24 September 2007 — De Fays v Commission

(Case F-97/07)

(2007/C 283/82)

Language of the case: French

Parties

Applicant: Chantal De Fays (Brussels, Belgium) (represented by: P.-P. Gehuchten and Ph. Reyniers, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—	annul the decision of the appointing authority of 21 June 2007 and, so far as necessary, its decision of 21 November 2006;

—	order the Commission to pay the salaries suspended, plus default interest;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official suffering from a sickness which she claims forced her absence from work, challenges the decisions of the appointing authority to treat her successive absences from 19 October 2006 as unauthorised and to therefore apply Article 60 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) with regard to her.

The applicant first submits that the arbitration procedure initiated on the basis of Article 59 of the Staff Regulations took place in breach of her right to a fair hearing and the rule of audi alteram partem. What is more, the report of the independent doctor did not give sufficient reasons and was vitiated by a manifest error of assessment.

The applicant also maintains that the decision forcing her to go to the workplace, in the light of current scientific opinion, infringes the principle of taking precautions.

24.11.2007

Official Journal of the European Union

C 283/46

Action brought on 8 October 2007 — Hoppenbrouwers v Commission

(Case F-104/07)

(2007/C 283/83)

Language of the case: French

Parties

Applicant: Micheline Hoppenbrouwers (Dilbeek, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

annul the decision of the Authority Responsible for Concluding Contracts of Employment of 25 June 2007 rejecting the applicant's complaint of 16 March 2007 against the administrative decision notified on 18 December 2006 refusing to employ the applicant as a member of the contract staff under Article 2(1) of the Annex to the Conditions of Employment of Other Servants (CEOS);

—	Insofar as is necessary, annul also the said decision of 18 December 2006;

—	Order the Defendant to pay the costs.

Pleas in law and main arguments

The first plea in law in the action is derived from the infringement of Article 82(3)(d) of the CEOS, Article 83 of the CEOS, Article 33 of the Staff Regulations of Officials of the European Communities and Article 2(1) of the Annex to the CEOS as well as from a manifest error of assessment.

The applicant states, first, that the administration refused to offer her a contract as a member of the contract staff for an indefinite period because she was in a state of temporarily unfitness to work on 1 May 2005, the date which, according to the Authority Responsible for Concluding Contracts of Employment, was the final date for contracts for members of the contract staff to take effect under the transitional measures provided for by Article 2(1) of the Annex to the CEOS. The applicant submits that only a permanent unfitness to work could justify the rejection of her candidature.

The second plea in law in the action is derived from an infringement of the principle of non-discrimination, inasmuch as the applicant was, without legitimate or reasonable justification, unfairly disadvantaged in comparison with other persons who, having worked, like the applicant, in nurseries and after-school childcare pursuant to a contract governed by Belgian law, benefited from a contract as a member of the contract staff for an indefinite period.

24.11.2007

Official Journal of the European Union

C 283/47

Corrigendum to the notice in the Official Journal in Case T-68/03

( Official Journal of the European Union C 247 of 20 October 2007, p. 22 )

(2007/C 283/84)

The notice in the OJ in Case T-68/03 Olympiaki Aeroporia Ypiresies v Commission should read as follows:

‘Judgment of the Court of First Instance of 12 September 2007 — Olympiaki Aeroporia Ypiresies v Commission

(Case T-68/03) (1)

(State aid - Restructuring aid granted by the Hellenic Republic to the airline Olympic Airways - Decision declaring the aid incompatible with the common market and ordering its recovery - Misuse of the aid - New aid - Burden of proof - Right to be heard - Private creditor test - Error of fact - Manifest error of assessment - Statement of reasons - Articles 87(1) EC and (3)(c) EC)

(2006/C 000/01)

Language of the case: Greek

Parties

Applicant: Olympiaki Aeroporia Ypiresies AE, formerly Olympiaki Aeroporia AE (Athens, Greece) (represented first by D. Waelbroeck and E. Bourtzalas, lawyers, J. Ellison and M. Hall, Solicitors, and A. Kalogeropoulos, C. Tagaras and A. Chiotelis, lawyers, and then by P. Anestis, lawyer, and T. Soames, Solicitor)

Defendant: Commission of the European Communities (represented by: D. Triantafyllou and J. L. Buendía Sierra, acting as Agents, and A. Oikonomou, lawyer)

Re:

Application for the annulment of Commission Decision 2003/372/EC of 11 December 2002 on aid granted by Greece to Olympic Airways (OJ 2003, L 132, p. 1)

Operative part of the judgment

The Court hereby:

Annuls Articles 2 and 3 of Commission Decision 2003/372/EC of 11 December 2002 on aid granted by Greece to Olympic Airways in so far as they concern tolerance of persistent non-payment of airport charges owed by Olympic Airways to Athens International Airport and of VAT owed by Olympic Aviation on fuel and spare parts.

2.	Dismisses the remainder of the application.

3.	Orders Olympiaki Aeroporia Ypiresies AE to pay 75 % of its own costs and of those of the Commission and orders the Commission to pay 25 % of its own costs and of those of Olympiaki Aeroporia Ypiresies.

(1) OJ C 112 of 10.5.2003.’

		ISSN 1725-2423
Official Journal of the European Union		C 283

English edition	Information and Notices	Volume 50 24 November 2007

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2007/C 283/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 269, 10.11.2007	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2007/C 283/02	Case C-351/04: Judgment of the Court (Second Chamber) of 27 September 2007 (Reference for a preliminary ruling from the High Court of Justice (Chancery Division), United Kingdom) — Ikea Wholesale Ltd v Commissioners of Customs & Excise (Dumping — Imports of cotton-type bed linen from Egypt, India and Pakistan — Regulation (EC) No 2398/97 — Regulation (EC) No 1644/2001 — Regulation (EC) No 160/2002 — Regulation (EC) No 696/2002 — Recommendations and decisions of the WTO Dispute Settlement Body — Legal consequences — Regulation (EC) No 1515/2001 — Retroactivity — Reimbursement of duties paid)	2

2007/C 283/03	Joined Cases C-208/06 and C-209/06: Judgment of the Court (Third Chamber) of 27 September 2007 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf Germany) — Medion AG (C-208/06) v Hauptzollamt Duisburg, Canon Deutschland GmbH (C-209/06) v Hauptzollamt Krefeld (Common Customs Tariff — Tariff classification — Combined Nomenclature — Camcorders)	3

2007/C 283/04	Case C-4/07: Judgment of the Court (Sixth Chamber) of 27 September 2007 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 2003/110/EC — Assistance in cases of transit for the purposes of removal by air — Failure to transpose within the prescribed period)	3

2007/C 283/05	Case C-5/07: Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 2003/109/EC — Third-country nationals who are long-term residents — Failure to transpose within the prescribed period)	4

2007/C 283/06	Case C-93/07: Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2003/35/EC — Environment — Public participation in certain projects and programmes — Failure to transpose within the prescribed period)	4

2007/C 283/07	Case C-115/07: Judgment of the Court (Sixth Chamber) of 27 September 2007 — Commission of the European Communities v Czech Republic (Failure of a Member State to fulfil its obligations — Directive 2004/27/EC — Proprietary medicinal products — Medicinal products for human use — Failure to transpose within the prescribed period)	5

2007/C 283/08	Case C-117/07: Judgment of the Court (Eighth Chamber) of 27 September 2007 — Commission of the European Communities v Czech Republic (Failure of a Member State to fulfil its obligations — Directive 2005/28/EC — Principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use — Requirements for authorisation of the manufacturing or importation of these medicinal products — Failure to transpose within the prescribed period)	5

2007/C 283/09	Case C-321/07: Reference for a preliminary ruling from the Landgericht Mannheim (Germany) lodged on 12 July 2007 — Criminal proceedings against Karl Schwarz	6

2007/C 283/10	Case C-372/07: Reference for a preliminary ruling from Supreme Court (Ireland) made on 6 August 2007 — Nicole Hassett and Cheryl Doherty/The Medical Defence Union Limited and MDU Services Limited v Raymond Howard and Brian Davidson	6

2007/C 283/11	Case C-377/07: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 8 August 2007 — STEKO Industriemontage GmbH v Finanzamt Speyer-Germersheim	7

2007/C 283/12	Case C-383/07: Reference for a preliminary ruling from the Bayerische Verwaltungsgerichtshof (Germany) lodged on 10 August 2007 — M-K Europa GmbH & Co. KG v Stadt Regensburg	7

2007/C 283/13	Case C-384/07: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 13 August 2007 — Wienstrom GmbH v Bundesminister für Wirtschaft und Arbeit	8

2007/C 283/14	Case C-386/07: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 August 2007 — Hospital Consulting Srl, ATI HC, Kodak SpA, Tecnologie Sanitarie SpA v Esaote SpA, ATI, Ital Tbs Telematic & Biomedical Service SpA, Draeger Medica Italia SpA, Officina Biomedica Divisione Servizi SpA	8

2007/C 283/15	Case C-387/07: Reference for a preliminary ruling from the Tribunale di Ancona (Italia) lodged on 13 August 2007 — MI.VER Srl, Daniele Antonelli v Provincia di Macerata	9

2007/C 283/16	Case C-388/07: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 9 August 2007 — The Queen on the application of the Incorporated Trustees of the National Council for Ageing (Age Concern England), v Secretary of State for Business, Enterprise and Regulatory Reform	9

2007/C 283/17	Case C-389/07: Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 10 August 2007 — Azlan Group plc v Her Majesty's Commissioners of Revenue and Customs	10

2007/C 283/18	Case C-390/07: Action brought on 17 August 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland	10

2007/C 283/19	Case C-394/07: Reference for a preliminary ruling from the Corte d'Appello di Milano (Italy) lodged on 22 August 2007 — Marco Gambazzi v Daimler Chrysler Canada Inc and CIBC Mellon Trust Company	11

2007/C 283/20	Case C-398/07 P: Appeal brought on 28 August 2007 by Waterford Wedgwood plc against the judgment of the Court of First Instance (Second Chamber) delivered on 12 June 2007 in Case T-105/05: Assembled Investments (Proprietary) Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	12

2007/C 283/21	Case C-402/07: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 30 August 2007 — Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor Flugdienst GmbH	12

2007/C 283/22	Case C-403/07: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 August 2007 — Metherma GmbH & Co. KG v Hauptzollamt Düsseldorf	13

2007/C 283/23	Case C-404/07: Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary) lodged on 7 August 2007 — Criminal proceedings against István Roland Sós	13

2007/C 283/24	Case C-407/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 5 September 2007 — Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing v Staatssecretaris van Financiën	13

2007/C 283/25	Case C-408/07: Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 5 September 2007 — Brigitte Ruf and Gertrud Elsässer v European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH, Intervener in support of the first defendant: City of Frankfurt am Main	14

2007/C 283/26	Case C-409/07: Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Avalon Service-Online-Dienste GmbH v Wetteraukreis	14

2007/C 283/27	Case C-410/07: Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Olaf Amadeus Wilhelm Happel v Wetteraukreis	14

2007/C 283/28	Case C-411/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 7 September 2007 — X B.V. v Staatssecretaris van Financiën	15

2007/C 283/29	Case C-413/07: Reference for a preliminary ruling from the Landesarbeitsgericht Mecklenburg-Vorpommern (Germany) lodged on 10 September 2007 — Kathrin Haase, Adolf Oberdorfer, Doreen Kielon, Peter Schulze, Peter Kliem, Dietmar Bössow, Helge Riedel, André Richter, Andreas Schneider v Superfast Ferries SA, Superfast OKTO Maritime Company, Baltic SF VIII LTD	15

2007/C 283/30	Case C-415/07: Reference for a preliminary ruling from the Tribunale ordinario di Nocera Inferiore (Italy), lodged on 10 September 2007 — Lodato Gennaro & C. SpA v Istituto nazionale della previdenza sociale (INPS), SCCI	16

2007/C 283/31	Case C-416/07: Action brought on 11 September 2007 — Commission of the European Communities v Hellenic Republic	16

2007/C 283/32	Case C-418/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 12 September 2007 — Société Papillon v Ministère du budget, des comptes publics et de la function publique	18

2007/C 283/33	Case C-419/07: Action brought on 12 September 2007 — Commission of the European Communities v Kingdom of Sweden	18

2007/C 283/34	Case C-422/07: Action brought on 13 September 2007 — Commission of the European Communities v Kingdom of Spain	19

2007/C 283/35	Case C-424/07: Action brought on 13 September 2007 — Commission of the European Communities v Federal Republic of Germany	19

2007/C 283/36	Case C-426/07: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Białymstoku (Republic of Poland) lodged on 14 September 2007 — Dariusz Krawczyński v Dyrektor Izby Celnej w Białymstoku	20

2007/C 283/37	Case C-432/07: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 18 September 2007 — Stefan Böck and Cornelia Lepuschitz v Air France SA	21

2007/C 283/38	Case C-438/07: Action brought on 19 September 2007 — Commission of the European Communities v Kingdom of Sweden	21

2007/C 283/39	Case C-441/07 P: Appeal brought on 26 September 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 11 July 2007 in Case T-170/06: Alrosa Company Ltd v Commission of the European Communities	22

2007/C 283/40	Case C-442/07: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 27 September 2007 — Verein Radetzky-Orden v Bundesvereinigung Kameradschaft Feldmarschall Radetzky	23

2007/C 283/41	Case C-444/07: Reference for a preliminary ruling from the Sąd Rejonowy Gdańsk — Północ w Gdańsku (Republic of Poland) lodged on 27 September 2007 — MG Probud Gdynia Sp. z o.o. v Hauptzollamt Saarbrücken	23

2007/C 283/42	Case C-448/07 P: Appeal brought on 27 September 2007 by Ayuntamiento de Madrid and Madrid Calle 30, SA against the order of the Court of First Instance (Fourth Chamber) delivered on 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities	23

2007/C 283/43	Case C-449/07: Action brought on 3 October 2007 — Commission of the European Communities v Italian Republic	24

	Court of First Instance
2007/C 283/44	Case T-474/04: Judgment of the Court of First Instance of 12 October 2007 — Pergan Hilfsstoffe für industrielle Prozesse v Commission (Competition — Agreements, decisions and concerted practices — Organic peroxides — Decision refusing a request for removal of certain passages from the definitive published version of a decision finding an infringement of Article 81 EC — Disclosure of information concerning the applicant by publishing a decision not addressed to it — Article 21 of Regulation No 17 — Professional secrecy — Article 287 EC — Presumption of innocence — Annulment)	25

2007/C 283/45	Case T-481/04: Judgment of the Court of First Instance of 4 October 2007 — Advance Magazine Publishers v OHIM — J. Capela & Irmãos Lda (VOGUE) (Community trade mark — Opposition proceedings — Application for a Community word mark VOGUE — Earlier national word mark VOGUE Portugal — Facts raised for the first time before the Board of Appeal — Extent of the examination carried out by the Board of Appeal)	25

2007/C 283/46	Case T-460/05: Judgment of the Court of First Instance of 10 October 2007 — Bang & Olufsen v OHIM (Shape of a loudspeaker) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a loudspeaker — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)	26

2007/C 283/47	Case T-185/04: Order of the Court of First Instance of 11 September 2007 — Lancôme v OHIM — Baudon (AROMACOSMETIQUE) (Community trade mark — Invalidity proceedings — Community word mark AROMACOSMETIQUE — Earlier national word mark AROMACOSMETIQUE — Invalidity of the earlier national word mark — No need to adjudicate)	26

2007/C 283/48	Case T-35/06: Order of the Court of First Instance of 11 September 2007 — Honig-Verband v Commission (Action for annulment — Regulation (EC) No 1854/2005 — Protected geographical indication — Miel de Provence — Measure of general application — Lack of individual concern — Inadmissibility)	27

2007/C 283/49	Case T-28/07: Order of the Court of First Instance of 11 September 2007 — Fels-Werke and Others v Commission (Application for annulment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National plan for Germany's allocation of greenhouse gas emission allowances for the period from 2008 to 2012 — Commission rejection decision — Not individually concerned — Inadmissibility)	27

2007/C 283/50	Case T-211/07 R: Order of 14 September 2007 of the Judge hearing the application for interim measures — AWWW v Eurofound (Public procurement — Community tender procedure — Procedure for interim relief — Lack of urgency)	28

2007/C 283/51	Case T-257/07 R: Order of 28 September 2007 of the Judge hearing the application for interim measures — France v Commission (Application for interim measures — Health measures — Regulation (EC) No 999/2001 — Eradication of certain transmissible spongiform encephalopathies — Regulation (EC) No 727/2007 — Application for suspension of operation — Prima facie case — Urgency — Balancing of interests)	28

2007/C 283/52	Case T-292/07 R: Order of the President of the Court of First Instance of 13 September 2007 — Berliner Institut für Vergleichende Sozialforschung v Commission (Interim measures — Failure to bring proceedings — Inadmissibility)	28

2007/C 283/53	Case T-312/07: Action brought on 24 July 2007 — Dimos Peramatos v Commission	29

2007/C 283/54	Case T-350/07: Action brought on 7 September 2007 — FMC Chemical and Others v Commission	29

2007/C 283/55	Case T-351/07: Action brought on 13 September 2007 — SOMM v OHIM	30

2007/C 283/56	Case T-358/07: Action brought on 17 September 2007 — Publicare Marketing v OHIM (Publicare)	30

2007/C 283/57	Case T-359/07 P: Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-26/06, Bertolete and Others v Commission	31

2007/C 283/58	Case T-360/07 P: Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-24/06 Abarca Montiel and Others v Commission	31

2007/C 283/59	Case T-361/07 P: Appeal brought on 19 July 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-25/06, Ider and Others v Commission	32

2007/C 283/60	Case T-364/07: Action brought on 17 September 2007 — Thomson Sales Europe v Commission	32

2007/C 283/61	Case T-365/07: Action brought on 17 September 2007 — Traxdata France v OHIM — Ritrax (TRAXDATA, TEAM TRAXDATA)	33

2007/C 283/62	Case T-366/07: Action brought on 24 September 2007 — Procter & Gamble v OHIM — Prestige Cosmetics (P&G PRESTIGE BEAUTE)	34

2007/C 283/63	Case T-367/07: Action brought on 17 September 2007 — Dow AgroSciences and Others v Commission	34

2007/C 283/64	Case T-368/07: Action brought on 26 September 2007 — Lithuania v Commission	35

2007/C 283/65	Case T-370/07: Action brought on 26 September 2007 — Patrick Holding v OHIM — Cassera (Patrick Exclusive)	36

2007/C 283/66	Case T-372/07: Action brought on 24 September 2007 — Dimos Kerateas (Municipality of Keratea) v Commission of the European Communities	36

2007/C 283/67	Case T-373/07: Action brought on 27 September 2007 — EOS v OHIM (PrimeCast)	37

2007/C 283/68	Case T-374/07: Action brought on 22 September 2007 — Pachtitis v Commission of the European Communities and EPSO	37

2007/C 283/69	Case T-379/07: Action brought on 3 October 2007 — Poland v Commission	38

2007/C 283/70	Case T-380/07: Action brought on 25 September 2007 — Kaloudis v OHIM — Fédération Française de Tennis (Roland Garros SPORTSWEAR)	39

2007/C 283/71	Case T-381/07: Action brought on 27 September 2007 — Italy v Commission	39

2007/C 283/72	Case T-382/07: Action brought on 5 October 2007 — France v Council	40

2007/C 283/73	Case T-388/07: Action brought on 10 October 2007 — Comune di Napoli v Commission	40

2007/C 283/74	Joined Cases T-2/05, T-3/05, T-49/05, T-118/05 and T-119/05: Order of the Court of First Instance of 5 September 2007 — ReckittBenckiser v OHIM	41

	European Union Civil Service Tribunal
2007/C 283/75	Case F-85/06: Judgment of the Civil Service Tribunal (First Chamber) of 9 October 2007 —Bellantone v Court of Auditors (Staff cases — Officials — Member of the temporary staff appointed as an official — Notice of termination of employment — Severance grant — Daily subsistence allowance — Material damage)	42

2007/C 283/76	Case F-12/07: Order of the Civil Service Tribunal (First Chamber) of 11 September 2007 — O'Connor v Commission (Staff case — Other servants — Consecutive contracts as a member of the temporary staff, auxiliary staff and contract staff — Maximum period of payment of unemployment allowance — Admissibility)	42

2007/C 283/77	Case F-17/07: Order of the Civil Service Tribunal (First Chamber) of 10 October 2007 — Pouzol v Court of Auditors (Staff cases — Official — Pensions — Transfer of pension rights acquired before entry into the service of the Communities — Inadmissibility)	43

2007/C 283/78	Case F-63/07: Action brought on 26 June 2007 — Patsarika v Cedefop	43

2007/C 283/79	Case F-92/07: Action brought on 17 September 2007 — Evraets v Commission	44

2007/C 283/80	Case F-93/07: Action brought on 17 September 2007 — Acosta Iborra and Others v Commission	44

2007/C 283/81	Case F-94/07: Action brought on 21 September 2007 — Rebizant and Others v Commission	45

2007/C 283/82	Case F-97/07: Action brought on 24 September 2007 — De Fays v Commission	45

2007/C 283/83	Case F-104/07: Action brought on 8 October 2007 — Hoppenbrouwers v Commission	46

	Corrigenda
2007/C 283/84	Corrigendum to the notice in the Official Journal in Case T-68/03 (OJ C 247, 20.10.2007, p. 22)	47