22.11.2008

EN

Official Journal of the European Union

C 301/1

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(2008/C 301/01)

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

OJ C 285, 8.11.2008

Past publications

OJ C 272, 25.10.2008

OJ C 260, 11.10.2008

OJ C 247, 27.9.2008

OJ C 236, 13.9.2008

OJ C 223, 30.8.2008

OJ C 209, 15.8.2008

These texts are available on:

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

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22.11.2008

EN

Official Journal of the European Union

C 301/2

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Election of Presidents of Chambers of three Judges

(2008/C 301/02)

At a meeting on 23 September 2008, the Judges of the Court of Justice, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Ilešič, Mr Bonichot, Mr Ó Caoimh and Mr von Danwitz as Presidents of the Fifth, Sixth, Seventh and Eighth Chambers of three Judges respectively, for a period of one year from 7 October 2008 to 6 October 2009.

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22.11.2008

EN

Official Journal of the European Union

C 301/2

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Assignment of Judges to the Chambers of three Judges

(2008/C 301/03)

At its meeting on 30 September 2008, the Court decided to assign the Judges to the Chambers as follows:

Fifth Chamber

Mr Ilešič, President of the Chamber

Mr Tizzano, Mr Borg Barthet, Mr Levits, Mr Kasel, Judges

Sixth Chamber

Mr Bonichot, President of the Chamber

Sir Konrad Schiemann, Mr Makarczyk, Mr Kūris, Mr Bay Larsen, Ms Toader, Judges

Seventh Chamber

Mr Ó Caoimh, President of the Chamber

Mr Cunha Rodrigues, Mr Klučka, Mr Lõhmus, Ms Lindh, Mr Arabadjiev, Judges

Eighth Chamber

Mr von Danwitz, President of the Chamber

Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský, Judges

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22.11.2008

EN

Official Journal of the European Union

C 301/3

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

(2008/C 301/04)

At its meeting on 30 September 2008, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for determining the composition of the Chambers of three Judges as follows:

For the Fifth Chamber:

Mr Tizzano

Mr Borg Barthet

Mr Levits

Mr Kasel

For the Sixth Chamber:

Sir Konrad Schiemann

Mr Makarczyk

Mr Kūris

Mr Bay Larsen

Ms Toader

For the Seventh Chamber:

Mr Cunha Rodrigues

Mr Klučka

Mr Lõhmus

Ms Lindh

Mr Arabadjiev

For the Eighth Chamber:

Ms Silva de Lapuerta

Mr Juhász

Mr Arestis

Mr Malenovský

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22.11.2008

EN

Official Journal of the European Union

C 301/4

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Appointment of the First Advocate General

(2008/C 301/05)

The Court of Justice appointed Ms Sharpston as First Advocate General for a period of one year from 7 October 2008 to 6 October 2009, pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure.

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22.11.2008

EN

Official Journal of the European Union

C 301/4

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Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

(2008/C 301/06)

At its meeting on 30 September 2008, the Court designated the Second Chamber of the Court as the Chamber which, in accordance with Article 9(1) of the Rules of Procedure of the Court of Justice, is responsible for cases of the kind referred to in Article 104b of the Rules of Procedure, for the period from 7 October 2008 to 6 October 2009.

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22.11.2008

EN

Official Journal of the European Union

C 301/4

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Taking of the oath by a new Member of the Court of First Instance

(2008/C 301/07)

Following his appointment as Judge at the Court of First Instance of the European Communities for the period from 1 September 2008 to 31 August 2013 by decision of the Representatives of the Governments of the Member States of the European Communities of 22 July 2008 (1), Mr O'Higgins took the oath before the Court of Justice on 15 September 2008.

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(1)  OJ L 219 of 14.8.2008, p. 63.

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22.11.2008

EN

Official Journal of the European Union

C 301/5

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Judgment of the Court (Second Chamber) of 2 October 2008 — Commission of the European Communities v Italian Republic

(Case C-157/06) (1)

(Failure of a Member State to fulfil obligations - Public supply contracts - Directive 93/36/EEC - Award of public contracts without prior publication of a notice - Light helicopters for the police and the national fire service)

(2008/C 301/08)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: X. Lewis and D. Recchia, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and by G. Fiengo, lawyer)

Re:

Failure of a Member State to fulfil obligations — Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) — Failure to establish the existence of grounds capable of allowing a contracting authority to have recourse to the negotiated procedure without prior publication of a tender notice — Light helicopters acquired for the use of the police and fire service

Operative part of the judgment

The Court:

1.

Declares that by adopting Decree No 558/A/04/03/RR of the Minister for the Interior of 11 July 2003, authorising the derogation from the Community rules on public supply contracts in respect of the purchase of light helicopters for the use of police forces and the national fire service, without any of the conditions capable of justifying that derogation having been satisfied, the Italian Republic has failed to fulfil its obligations under Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, and in particular under Articles 2(1)(b), 6 and 9 thereof;

2.	Orders the Italian Republic to pay the costs.

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(1)  OJ C 131, 3.6.2006.

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22.11.2008

EN

Official Journal of the European Union

C 301/5

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Judgment of the Court (Second Chamber) of 2 October 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Heinrich Bauer Verlag Beteiligungs GmbH v Finanzamt für Großunternehmen in Hamburg

(Case C-360/06) (1)

(Freedom of establishment - Tax legislation - Corporation tax - Valuation of unlisted shares in limited companies)

(2008/C 301/09)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Heinrich Bauer Verlag BeteiligungsGmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Intervener: Heinrich Bauer Verlag KG

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Article 58 of the EC Treaty (now Article 48 EC) — Valuation of unlisted shares in limited companies — Difference between the valuation of a share in a national partnership and a share in a partnership established in another Member State

Operative part of the judgment

In the absence of valid justification, Articles 52 of the EEC Treaty (subsequently Article 52 of the EC Treaty, and now, after amendment, Article 43 EC) and 58 of the EEC Treaty (subsequently Article 58 of the EC Treaty, and now Article 48 EC) preclude the application of tax legislation of a Member State which, for the purposes of valuing the unlisted shares of a company in circumstances such as those in the main proceedings, causes that company's holding in a partnership established in another Member State, subject to the condition that such a holding is capable of allowing it a definite influence on the decisions of the partnership established in the other Member State and enabling it to determine its activities, to be assigned a greater value than its holding in a partnership established in the Member State concerned.

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(1)  OJ C 310, 16.12.2006.

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22.11.2008

EN

Official Journal of the European Union

C 301/6

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Judgment of the Court (Grand Chamber) of 23 September 2008 (reference for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH

(Case C-427/06) (1)

(Equal treatment in employment and occupation - Article 13 EC - Directive 2000/78/EC - Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former employee - Age discrimination - Link with Community law)

(2008/C 301/10)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Birgit Bartsch

Defendant: Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH

Re:

Reference for a preliminary ruling — Bundesarbeitsgericht — Interpretation of the principle of no discrimination on the ground of age in Article 13 EC and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Occupational pension scheme (betriebliche Altersversorgung) excluding a right to retirement pension (Ruhegeld) for a surviving spouse 15 years younger than the deceased former employee — Application of the principle of no discrimination on the ground of age in the absence of a link to a situation envisaged by other provisions of Community law

Operative part of the judgment

The application, which the courts of Member States must ensure, of the prohibition under Community law of discrimination on the ground of age is not mandatory where the allegedly discriminatory treatment contains no link with Community law. No such link arises either from Article 13 EC, or, in circumstances such as those at issue in the main proceedings, from Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, before the time-limit allowed to the Member State concerned for its transposition has expired.

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(1)  OJ C 326, 30.12.2006.

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22.11.2008

EN

Official Journal of the European Union

C 301/6

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Judgment of the Court (Grand Chamber) of 16 September 2008 (reference for a preliminary ruling from the Efetio Athinon — Greece) — Sot. Lelos kai Sia EE (C-468/06), Farmakemporiki AE Emporias kai Dianomis Farmakeftikon Proionton (C-469/06), Konstantinos Xidias kai Sia OE (C-470/06), Farmakemporiki AE Emporias kai Dianomis Farmakeftikon Proionton (C-471/06), Ionas Stroumsas EPE (C-472/06), Ionas Stroumsas EPE (C-473/06), Farmakapothiki Farma-Group Messinias AE (C-474/06), K.P. Marinopoulos AE Emporias kai Dianomis Farmakeftikon Proionton (C-475/06), K.P. Marinopoulos AE Emporias kai Dianomis Farmakeftikon Proionton (C-476/06), Kokkoris D. Tsanas K. EPE and Others (C-477/06), Kokkoris D. Tsanas K. EPE and Others (C-478/06) v GlaxoSmithKline AEVE Farmakeftikon Proionton, formerly Glaxowellcome AEVE

(Joined Cases C-468/06 to C-478/06) (1)

(Article 82 EC - Abuse of dominant position - Pharmaceutical products - Refusal to supply wholesalers engaging in parallel exports - Ordinary orders)

(2008/C 301/11)

Language of the case: Greek

Referring court

Efetio Athinon

Parties to the main proceedings

Applicants: Sot. Lelos kai Sia EE (C-468/06), Farmakemporiki AE Emporias kai Dianomis Farmakeftikon Proionton (C-469/06), Konstantinos Xidias kai Sia OE (C-470/06), Farmakemporiki AE Emporias kai Dianomis Farmakeftikon Proionton (C-471/06), Ionas Stroumsas EPE (C-472/06), Ionas Stroumsas EPE (C-473/06), Farmakapothiki Farma-Group Messinias AE (C-474/06), K.P. Marinopoulos AE Emporias kai Dianomis Farmakeftikon Proionton (C-475/06), K.P. Marinopoulos AE Emporias kai Dianomis Farmakeftikon Proionton (C-476/06), Kokkoris D. Tsanas K. EPE and Others (C-477/06), Kokkoris D. Tsanas K. EPE and Others (C-478/06)

Defendant: GlaxoSmithKline AEVE Farmakeftikon Proionton

Re:

Reference for a preliminary ruling — Efetio Athinon — Interpretation of Article 82 EC — Abuse of a dominant position — Refusal of an undertaking holding a dominant position to meet fully orders placed by pharmaceutical wholesalers, with the intention of limiting their export activity and, consequently, the harm caused to it by parallel trade

Operative part of the judgment

Article 82 EC must be interpreted as meaning that an undertaking occupying a dominant position on the relevant market for medicinal products which, in order to put a stop to parallel exports carried out by certain wholesalers from one Member State to other Member States, refuses to meet ordinary orders from those wholesalers, is abusing its dominant position. It is for the national court to ascertain whether the orders are ordinary in the light of both the size of those orders in relation to the requirements of the market in the first Member State and the previous business relations between that undertaking and the wholesalers concerned.

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(1)  OJ C 20, 27.1.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/7

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Judgment of the Court (First Chamber) of 18 September 2008 — Armacell Enterprise GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), nmc SA

(Case C-514/06 P) (1)

(Appeal - Community trade mark - Application for the Community word mark ARMAFOAM - Earlier Community trade mark NOMAFOAM - Relative ground for refusal - Similarity of the signs - Existence of a relative ground for refusal in part of the European Community)

(2008/C 301/12)

Language of the case: English

Parties

Appellant: Armacell Enterprise GmbH (represented by: O. Spuhler, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), nmc SA (represented by: P. Péters and T. de Haan, avocats)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 10 October 2006 in Case T-172/05 Armacell v OHIM whereby the Court dismissed an action by the applicant for the word mark ‘ARMAFOAM’ for goods in Class 20 for annulment of Decision R 552/2004-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 23 February 2005 annulling the decision of the Opposition Division which rejected the opposition brought by the proprietor of the Community word mark ‘NOMAFOAM’ for goods in Classes 11, 19, 20, 27 and 28

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Armacell Enterprise GmbH to pay the costs.

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(1)  OJ C 56, 10.3.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/7

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Judgment of the Court (Fourth Chamber) of 9 October 2008 — Marguerite Chetcuti v Commission of the European Communities

(Case C-16/07 P) (1)

(Appeal - Civil service - Competition internal to the institution - Rejection of candidature - Conditions of admission)

(2008/C 301/13)

Language of the case: French

Parties

Appellant: Marguerite Chetcuti (represented by: M.-A. Lucas, avocat)

Other party to the proceedings: Commission of the European Communities (represented by: V. Joris and K. Herrmann, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 8 November 2006 in Case T-357/04 Chetcuti v Commission, in which the Court of First Instance dismissed the appellant's action for annulment of the decision of the competition selection board of 22 June 2004 rejecting her candidature and for annulment of the subsequent acts of the competition procedure — Infringement of Articles 4, 27 and 29(1) of the Staff Regulations in the version in force until 30 April 2004 — Concept of ‘internal competition’ and the objective assigned to recruitment of ensuring that the institution secures the services of persons of the ‘highest standard of ability, efficiency and integrity’ — Eligibility of auxiliary staff

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Ms Chetcuti to pay the costs.

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(1)  OJ C 82, 14.4.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/8

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Judgment of the Court (Second Chamber) of 2 October 2008 — K-Swiss Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-144/07 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 2868/95 - Time-limit for instituting proceedings before the Court of First Instance - OHIM decision - Notification by express courier - Calculation of the time limit for bringing an action)

(2008/C 301/14)

Language of the case: English

Parties

Appellant: K-Swiss Inc. (represented by: H.E. Hübner, Advocate)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Mondéjar Ortuño, Agent)

Re:

Appeal against the order of the Court of First Instance (Third Chamber) of 14 December 2006 in Case T-14/06 K-Swiss v OHIM dismissing as inadmissible an action for annulment of a decision of the First Board of Appeal of OHIM — Time-limit for instituting proceedings — Notification by express courier — Date from which the time-limit begins to run

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders K Swiss Inc. to pay the costs.

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(1)  OJ C 117, 26.5.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/8

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Judgment of the Court (Third Chamber) of 9 October 2008 (reference for a preliminary ruling from the Lietuvos Respublikos Konstitucinis Teismas (Republic of Lithuania)) — Proceedings for review of the constitutionality of legislation brought by Julius Sabatauskas and Others

(Case C-239/07) (1)

(Internal market in electricity - Directive 2003/54/EC - Article 20 - Transmission and distribution systems - Third party access - Obligations of Member States - Open access of third parties to electricity transmission and distribution systems)

(2008/C 301/15)

Language of the case: Lithuanian

Referring court

Lietuvos Respublikos Konstitucinis Teismas

Parties in the main proceedings

Julius Sabatauskas and Others

Re:

Reference for a preliminary ruling — Lietuvos respublikos konstitucinis teismas — Interpretation of Article 20 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regards to decommissioning and waste management activities (OJ 2003 L 176, p. 37) — Compatibility with the directive of national legislation permitting consumers to have access to the electricity transmission system only after refusal by the distribution system operator to grant access to a distribution system.

Operative part of the judgment

1.

Article 20 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC is to be interpreted as defining the Member States' obligations only in respect of the access and not the connection of third parties to the electricity transmission and distribution systems and as not laying down that the system of network access that the Member States are required to establish must allow an eligible customer to choose, at his discretion, the type of system to which he wishes to connect.

2.

Article 20 must also be interpreted as not precluding national legislation which lays down that an eligible customer's equipment may be connected to a transmission system only where the distribution system operator refuses, on account of established technical or operating requirements, to connect to its system the equipment of the eligible customer which is on the territory included in its licence. It is, however, for national courts to verify that the implementation and application of that access system takes place in accordance with objective and non discriminatory criteria between the users of the transmission and distribution systems.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/9

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Judgment of the Court (Grand Chamber) of 16 September 2008 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) — (United Kingdom)) — The Commissioners of Her Majesty's Revenue and Customs v Isle of Wight Council, Mid-Suffolk District Council, South Tyneside Metropolitan Borough Council, West Berkshire District Council

(Case C-288/07) (1)

(Sixth VAT Directive - Article 4(5) - Activities engaged in by bodies governed by public law - Provision of off-street car-parking facilities for which a charge is made - Distortions of competition - Meaning of ‘would lead to’ and ‘significant’)

(2008/C 301/16)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Appellants: The Commissioners of Her Majesty's Revenue and Customs

Respondents: Isle of Wight Council, Mid-Suffolk District Council, South Tyneside Metropolitan Borough Council, West Berkshire District Council

Re:

Reference for a preliminary ruling — High Court of Justice of England and Wales (Chancery Division) — Interpretation of Article 4(5) 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) — Activities or transactions engaged in by a body governed by public law in its capacity as a public authority — Off-street parking facilities for which a charge is made — Non-application of VAT leading to distortions of competition — Concept of ‘distortion of competition’ — Criteria for determination

Operative part of the judgment

1.

Article 4(5) 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 is to be interpreted as meaning that the significant distortions of competition, to which the treatment as non-taxable persons of bodies governed by private law acting as public authorities would lead, must be evaluated by reference to the activity in question, as such, without such evaluation relating to any local market in particular.

2.

The expression ‘would lead to’ is, for the purposes of the second subparagraph of Article 4(5) of Sixth Council Directive 77/388/EEC, to be interpreted as encompassing not only actual competition, but also potential competition, provided that the possibility of a private operator entering the relevant market is real, and not purely hypothetical.

3.	The word ‘significant’ is, for the purposes of the second subparagraph of Article 4(5) of Sixth Council Directive 77/388/EEC, to be understood as meaning that the actual or potential distortions of competition must be more than negligible.

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(1)  OJ C 199, 25.8.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/9

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Judgment of the Court (Fourth Chamber) of 9 October 2008 (reference for a preliminary ruling from the Bundesgerichtshof, Germany) — Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg

(Case C-304/07) (1)

(Directive 96/9/EC - Legal protection of databases - Sui generis right - Concept of ‘extraction’ of the contents of a database)

(2008/C 301/17)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Directmedia Publishing GmbH

Defendant: Albert-Ludwigs-Universität Freiburg

Re:

Preliminary ruling — Bundesgerichtshof — Interpretation of Article 7(2)(a) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20) — Adoption of data from a protected database and their incorporation in a different database on the basis of individual assessments following a close examination of those data, without any copying being carried out — Whether such a data adoption and incorporation operation constitutes ‘extraction’ within the meaning of Directive 96/9/EC

Operative part of the judgment

The transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an ‘extraction’, within the meaning of Article 7 of Directive 96/9 of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, to the extent that — which it is for the referring court to ascertain — that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents.

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(1)  OJ C 211, 8.9.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/10

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Judgment of the Court (Seventh Chamber) of 25 September 2008 — Commission of the European Communities v Italian Republic

(Case C-368/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2000/59/EC - Port reception facilities for ship-generated waste and cargo residues - Failure to develop and implement waste reception and handling plans for all ports)

(2008/C 301/18)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: K. Simonsson and E. Montaguti, Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, G. Fiengo and F. Arena, lawyers)

Re:

Failure of Member State to fulfil obligations — Failure to have adopted, within the prescribed time-limit, all the measures necessary to comply with Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ 2000 L 332, p. 81)

Operative part of the judgment

The Court hereby:

1.

Declares that, by failing to prepare and adopt waste reception and handling plans for every Italian port, the Italian Republic has failed to fulfil its obligations under Article 5(1) and 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues;

2.	Orders the Italian Republic to pay the costs.

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(1)  OJ C 223, 22.9.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/10

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Judgment of the Court (First Chamber) of 2 October 2008 (reference for a preliminary ruling from the Supreme Court — Ireland) — Nicole Hassett v South Eastern Health Board, Cheryl Doherty v North Western Health Board

(Case C-372/07) (1)

(Jurisdiction - Regulation (EC) No 44/2001 - Point 2 of Article 22 - Disputes as to the validity of decisions of organs of companies - Exclusive jurisdiction of the courts of the State where the company has its seat - Medical practitioners' mutual defence organisation)

(2008/C 301/19)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicants: Nicole Hassett, Cheryl Doherty

Defendants: South Eastern Health Board, North Western Health Board

In the presence of: Raymond Howard, Medical Defence Union Ltd, MDU Services Ltd, Brian Davidson

Re:

Reference for a preliminary ruling — Supreme Court — Interpretation of Article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Medical trade union constituted in the form of a company under the law of a Member State, which provides assistance and indemnity to its members practising in the Member State and in another Member State — Provision of the assistance/indemnity dependent on a decision taken by the board of directors of that company under an absolute discretionary power — Challenge to a decision refusing assistance or indemnity to a doctor practising in the other Member State — Exclusive jurisdiction of the courts of the State in which the company has its seat on the basis of Article 22(2) of the regulation

Operative part of the judgment

Point 2 of Article 22 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that proceedings, such as those at issue before the referring court, in the context of which one of the parties alleges that a decision adopted by an organ of a company has infringed rights that it claims under that company's Articles of Association, do not concern the validity of the decisions of the organs of a company within the meaning of that provision.

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(1)  OJ C 283, 24.11.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/11

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Judgment of the Court (Third Chamber) of 9 October 2008 (reference for a preliminary ruling from the Fővárosi Bíróság, Republic of Hungary) — Criminal proceedings brought by Győrgy Katz against István Roland Sós

(Case C-404/07) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2001/220/JHA - Standing of victims in criminal proceedings - Private prosecutor in substitution for the public prosecutor - Testimony of the victim as a witness)

(2008/C 301/20)

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties in the criminal proceedings

Győrgy Katz against István Roland Sós

Re:

Reference for a preliminary ruling — Fővárosi Bíróság — Interpretation of Articles 2 and 3 of Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1) — National legislation precluding the possibility of the victim giving evidence in criminal proceedings instituted by the victim as a substitute private prosecutor

Operative part of the judgment

Articles 2 and 3 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings are to be interpreted as not obliging a national court to permit the victim to be heard as a witness in criminal proceedings instituted by a substitute private prosecution such as that in issue in the main proceedings. However, in the absence of such a possibility, it must be possible for the victim to be permitted to give testimony which can be taken into account as evidence.

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(1)  OJ C 283, 24.11.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/11

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Judgment of the Court (Fifth Chamber) of 2 October 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X B.V. v Staatssecretaris van Financiën

(Case C-411/07) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Headings 8541, 8542 and 8543 - Optocouplers)

(2008/C 301/21)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: X B.V.

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Commission Regulation (EC) No 1832/2002 of 1 August 2002 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2002 L 290, p. 1) — Optical-electrical circuit that is an integral part of a machine enclosed in a plastic case containing a light emitting diode (‘LED’), a plastic film and a photodetector and amplifying circuit and is intended for incorporation in communication and computer equipment, consumer electronics and industrial machines — Headings 8541, 8542 and 8543 of the CN

Operative part of the judgment

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 1832/2002 of 1 August 2002, must be interpreted as meaning that an optocoupler, regardless of whether not it contains an amplifying circuit, falls within heading 8541.

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(1)  OJ C 283, 24.11.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/12

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Judgment of the Court (Third Chamber) of 25 September 2008 (reference for a preliminary ruling from the Verwaltungsgericht Gießen — Germany) — Hakan Er v Wetteraukreis

(Case C-453/07) (1)

(EEC-Turkey Association Agreement - Decision No 1/80 of the Association Council - Article 7, first paragraph, second indent - Right of residence of the adult child of a Turkish worker - Absence of paid employment - Conditions governing the loss of acquired rights)

(2008/C 301/22)

Language of the case: German

Referring court

Verwaltungsgericht Gießen

Parties to the main proceedings

Applicant: Hakan Er

Defendant: Wetteraukreis

Re:

Reference for a preliminary ruling — Verwaltungsgericht Gießen — Interpretation of the second indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the Development of the Association and of Article 59 of the Additional Protocol on the transitional phase laid down under the Agreement establishing an Association between the European Economic Community and Turkey, signed on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (JO 1972 L 293, p. 1) — Right of residence of a Turkish national who entered the territory of a Member State as a minor for the purpose of family reunification — Loss of the right of residence — No lawful pursuit of an economic activity after the party in question attained majority

Operative part of the judgment

A Turkish national, who was authorised to enter the territory of a Member State as a child in the context of a family reunion, and who has acquired the right to take up freely any paid employment of his choice under the second indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the Development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, does not lose the right of residence in that State, which is the corollary of that right of free access, even though, at the age of 23, he has not been in paid employment since leaving school at the age of 16 and has taken part in government job-support schemes without, however, completing them.

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(1)  OJ C 297, 8.12.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/12

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Judgment of the Court (Sixth Chamber) of 2 October 2008 — Commission of the European Communities v Hellenic Republic

(Case C-36/08) (1)

(Failure of a Member State to fulfil obligations - Directive 93/16/EEC - Specific training required to practise as a general practitioner - Incorrect transposition)

(2008/C 301/23)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and H. Støvlbæk, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 30, 31 and 36 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1) — Specific training required to practise as a general practitioner

Operative part of the judgment

The Court:

1.

Declares that, by adopting and maintaining in force rules such as Article 29(d.1) and (d.2) of Law 3209/2003 which are not in compliance with Articles 30, 31 and 36 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, the Hellenic Republic has failed to fulfil its obligations under Articles 30, 31 and 36 of that directive;

2.	Dismisses the action as to the remainder;

3.	Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 92, 12.4.2008.

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22.11.2008

EN

Official Journal of the European Union

C 301/13

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Judgment of the Court (Sixth Chamber) of 9 October 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-70/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/72/EC - Statute for a European Cooperative Society - Involvement of employees in the decision-making of the society - Failure to transpose within the prescribed period)

(2008/C 301/24)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and J. Enegren, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or notify, within the prescribed period, the provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (OJ 2003 L 207, p. 25)

Operative part of the judgment

The Court:

1.

Declares that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees, or by not ensuring that management and labour introduce the required provisions by way of agreement, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 16(1) of that directive;

2.	Orders the Grand-Duchy of Luxembourg to pay the costs.

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(1)  OJ C 116, 9.5.2008.

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22.11.2008

EN

Official Journal of the European Union

C 301/13

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Judgment of the Court (Seventh Chamber) of 25 September 2008 — Commission of the European Communities v Czech Republic

(Case C-87/08) (1)

(Failure to fulfil obligations - Directive 2006/73/EC - Measures implementing Directive 2004/39/EC - Organisational requirements and operating conditions for investment firms - Failure to adopt within the prescribed period)

(2008/C 301/25)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek, acting as Agent)

Defendant: Czech Republic (represented by: M. Smolek, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to transpose Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive (OJ 2006 L 241, p. 26).

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt all such laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive, the Czech Republic has failed to fulfil its obligations under Article 53(1) of that directive;

2.	Orders the Czech Republic to pay the costs.

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(1)  OJ C 92, 12.4.2008.

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22.11.2008

EN

Official Journal of the European Union

C 301/14

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 21 August 2008 — ERG Raffinerie Mediterranee SpA and Others v Ministero dello Sviluppo Economico and Others

(Case C-378/08)

(2008/C 301/26)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicants: ERG Raffinerie Mediterranee SpA and Others

Defendants: Ministero dello Sviluppo Economico and Others

Questions referred

1.

Do the ‘polluter pays’ principle (Article 174(2) (formerly Article 130r(2)) of the Treaty of the European Communities) and the provisions of Directive 2004/35/EC (1) of 21 April 2004, referred to above, preclude national legislation which allows the public authorities to require private undertakings — merely owing to the fact that they currently carry on their activities in an area which has been contaminated for a long time or borders on an area which is historically contaminated — to implement rehabilitation measures, irrespective of whether or not any preliminary investigation has been carried out to identify the party responsible for the pollution?

2.

Do the ‘polluterpays’ principle (Article 174(2) (formerly Article 130r(2) of the Treaty of the European Communities) and the provisions of Directive 2004/35/EC of 21 April 2004, referred to above, preclude national legislation which allows the public authorities to impute liability to make good the environmental damage in a particular form to the person who owns the property rights and/or carries on commercial activities on the contaminated site without having to assess in advance whether there is a causal link between the conduct of that person and the occurrence of the contamination, by virtue merely of that person's ‘situation’ (namely, that of being an operator whose activities are carried on inside the site)?

3.

Do the provisions of Community law in Article 174(2) (formerly Article 130r(2) of the Treaty of the European Communities) and Directive 2004/35/EC (2) of 21 April 2004 preclude national legislation which, overriding the ‘polluter pays’ principle, allows the public authorities to impute liability to make good the compensation for the environmental damage in a particular form to the person who owns the property rights and/or operates an undertaking on the contaminated site, without having to assess in advance either whether there is a causal link between the conduct of that person and the occurrence of the contamination or the subjective requirement of intent or negligence?

4.

Do the Community competition principles laid down in the Treaty establishing the European Community and Directive 2004/18/EC (3), Directive 93/97/EC and Directive 898/665/EC (4) [cited above] preclude national legislation which allows the public authorities to award to private persons (Società Sviluppo SpA and Sviluppo Italia Aree Produttive SpA) the activities of characterisation and of planning and performing cleaning up operations — or more correctly, the carrying out of public works — in areas owned by the State directly, without carrying out in advance the necessary public tendering procedures?

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(1)  OJ 2004 L 143, p. 56.

(2)  OJ 2004 L 134, p. 114.

(3)  OJ 2004 L 290, p. 1.

(4)  OJ 2004 L 395, p. 33.

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22.11.2008

EN

Official Journal of the European Union

C 301/14

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 21 August 2008 — ERG Raffinerie Mediterranee SpA and Others v Ministero dello Sviluppo Economico and Others

(Case C-379/08)

(2008/C 301/27)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicants: ERG Raffinerie Mediterranee SpA and Others

Defendants: Ministero dello Sviluppo Economico and Others

Questions referred

1.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC (1) of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to require, as ‘reasonable methods of remedying environmental damage’, works on the environmental matrices (here, consisting of the construction of a physical barrier for the groundwater along the entire seafront) different from and supplementary to those selected in advance following special preliminary discussions with the parties, already approved, implemented or in the course of being implemented?

2.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio, that is, without having assessed the site-specific conditions and the implementation costs in respect of the reasonably foreseeable benefits, the possible or probable collateral damage and adverse effects on public health and safety, and the necessary time scales for implementation?

3.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio as conditions for an authorisation for the lawful use of the areas not directly affected by the decontamination in so far as they have already been decontaminated or in any event were not polluted, included within the limits of the Priolo site of national interest?

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(1)  OJ 2004 L 143, p. 56.

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22.11.2008

EN

Official Journal of the European Union

C 301/15

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 21 August 2008 — ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others

(Case C-380/08)

(2008/C 301/28)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicant: ENI SpA

Defendants: Ministero Ambiente e Tutela del Territorio e del Mare and Others

Questions referred

1.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC (1) of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to require, as ‘reasonable methods of remedying environmental damage’, works on the environmental matrices (here, consisting of the construction of a physical barrier for the groundwater along the entire seafront) different from and supplementary to those selected in advance following special preliminary discussions with the parties, already approved, implemented or in the course of being implemented?

2.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio, that is, without having assessed the site-specific conditions and the implementation costs in respect of the reasonably foreseeable benefits, the possible or probable collateral damage and adverse effects on public health and safety, and the necessary time scales for implementation?

3.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio as conditions for an authorisation for the lawful use of the areas not directly affected by the decontamination in so far as they have already been decontaminated or in any event were not polluted, included within the limits of the Priolo site of national interest?

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(1)  OJ 2004 L 143, p. 56.

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22.11.2008

EN

Official Journal of the European Union

C 301/15

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 August 2008 — Car Trim GmbH v KeySafety Systems SRL

(Case C-381/08)

(2008/C 301/29)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Car Trim GmbH

Defendant: KeySafety Systems SRL

Questions referred

1.

Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that contracts for the delivery of goods to be produced or manufactured are, notwithstanding specific obligations on the part of the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the order, to be classified as a sale of goods (first indent), and not as provision of services (second indent)? What criteria are decisive for the distinction?

2.

If a sale of goods is to be presumed: in the case of contracts involving carriage of goods, is the place where under the contract the goods sold were delivered or should have been delivered to be determined according to the place of physical transfer to the purchaser, or according to the place at which the goods were handed over to the first carrier for transmission to the purchaser?

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(1)  OJ L 12, 16.1.2001, p. 1.

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22.11.2008

EN

Official Journal of the European Union

C 301/16

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Action brought on 25 August 2008 — Commission of the European Communities v Italian Republic

(Case C-383/08)

(2008/C 301/30)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro, Agent)

Defendant: Italian Republic

Form of order sought

—

Declare that, by adopting the provisions of the ministerial order of 26 August 2005, as last amended by the order of 17 December 2007, which makes it compulsory to indicate the country of origin of the poultrymeat listed in Article 3(1) of that order, the Italian Republic has failed to fulfil its obligations under Article 3(1)(8) and Article 18(2) of Directive 2000/13/EC (1) on the labelling, presentation and advertising of foodstuffs, in conjunction, until 30 June 2008, with Article 5(3)(e) and Article 5(4) of Regulation (EEC) No 1906/90 (2) on certain marketing standards for poultry and, from 1 July 2008, with Article 5(4)(e) and Article 5(5) of Commission Regulation (EC) No 543/2008 (3).

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the obligation to indicate the origin of poultrymeat from other Member States laid down by the order of 26 August 2005, as last amended by the order of 17 December 2007, constitutes a breach of Article 3(1)(8) and of Article 18(2) of Directive 2000/13, in conjunction, until 30 June 2008, with Article 5(3)(e) and Article 5(4) of Regulation No 1906/90 and, from 1 July 2008, with Article 5(4)(e) and Article 5(5) of Regulation No 543/2008. According to the Italian Government, that obligation was introduced as a measure intended to ensure the traceability of meat following the confirmation of outbreaks of bird flu in third countries.

The Commission considers that the obligation in question is contrary to Article 3(1)(8) of Directive 2000/13. It is clear from that article that, for foodstuffs in general, particulars of the place of origin or provenance must appear on the labelling only where, in the absence of such an indication the consumer might be misled as to the true origin or provenance of the foodstuff. The Community legislature does not, therefore, consider that the indication of origin is a necessary piece of information for consumers in general or in absolute terms, but only where failure to give such an indication might mislead them.

It is for the Italian Government to establish that the obligation to indicate the origin of poultry from other Member States which is laid down by the order in question really is important for poultrymeat and that failure to give such an indication entails a risk of error on the part of the consumer. In fact, the Commission submits, the Italian Government has not adduced any evidence capable of proving that the Italian consumer would be misled as regards the origin or the provenance of poultrymeat in the absence of any indication of origin.

The circumstances surrounding the bird flu crisis do not explain why the failure to indicate origin might mislead the consumer and lead him to believe that poultrymeat has a particular origin. The mere fact that the average consumer attaches importance to the origin of the product does not mean that, in the absence of indications of origin, he will be misled as to the real origin of the product. That would imply that a consumer automatically attributes a specific origin to poultrymeat, which remains to be proven by the Italian Government. It should also be observed that matters of animal health cannot be assessed by the consumer who does not have the necessary knowledge to assess the risk on the basis of an indication of origin.

Moreover, the above provisions of the order are not justified by the public health considerations within the meaning of Article 18(2) of that directive which are relied on by the Italian Government to justify the additional labelling requirement. In order to combat bird flu, the Community has adopted a wide range of veterinary measures intended to ensure that only healthy poultrymeat can enter the Community and be marketed there.

The argument raised by the Italian Government that the abovementioned Community measures do not ensure traceability is irrelevant, according to the Commission, because the Community measures in question are intended precisely to prevent the entry into the Community of meat from third countries in which outbreaks of bird flu have been discovered. Thus, those measures take effect at a stage before that of marketing, when the Italian measure takes effect, precisely because their objective is to prevent meat from third countries in which there has been an outbreak of bird flu from being imported into the Community. Moreover, the Community has also adopted measures which ensure the isolation of any outbreaks of bird flu which may be confirmed within Community territory so as to prevent any risk of contamination. Within the European Community a series of veterinary measures were then adopted in order to prevent the spread of the virus from wild birds to poultry in the regions in which infected wild birds have been identified and to stem any epidemics in poultry.

The Italian Government then cites Regulation (EC) No 1760/2000 (4) which set up a system of traceability for beef which introduces an obligation to indicate origin on labelling, to demonstrate the legitimacy of the obligation introduced by the order in question.

The Commission, however, submits that that measure, unlike the order in question, is a Community measure and not a national, and therefore unilateral, measure likely to constitute an obstacle to trade. Moreover, the effectiveness of the system introduced by Regulation No 1760/2000 is not solely based on a system of merely indicating the origin of the product, like the Italian order on poultrymeat, but on the combination of a series of elements including a system of identification and registration of animals.

As regards the argument of the Italian Government attempting to justify the measure on the basis of the precautionary principle, in that the Commission has not established that there is not scientific uncertainty regarding the ways in which the virus is transmitted to man, the Commission observes, in accordance with the case-law of the Community courts, that the scientific data relied on by the Italian Government in the reply to the reasoned opinion do not establish that there is genuine scientific uncertainty regarding the ways in which the virus is transmitted to man. According to the case-law of the Community courts, it is for the Italian authorities to prove the scientific uncertainty which justifies the adoption of national measure in pursuance of the precautionary principle and not for the Commission to prove the absence of scientific uncertainty as the Italian Government appears to suggest in its reply to the reasoned opinion.

Even if it is accepted that, as regards the specific case of the possible transmission of the virus from infected poultry to domestic animals in general and cats in particular, the Italian Government has demonstrated the existence of genuine scientific uncertainty regarding the guidance in the documents of the WHO and the Food Authority cited by it in the reply to the reasoned opinion, the Commission none the less considers that application of the precautionary principle adopted to justify the order in question appears excessive and therefore not proportionate to the objective of the protection of animal health, given that a series of Community measures have been adopted which are intended to achieve the same objective.

Finally, until 30 June 2008, Article 5(3)(e) and Article 5(4) of Regulation 1906/90 on certain marketing standards for poultry and, from 1 July 2008, Article 5(4)(e) and Article 5(5) of Commission Regulation (EC) No 543/2008 impose an obligation to indicate the origin of poultrymeat only on poultry from third countries. On that point the Italian Government does not put forward any counterarguments.

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(1)  OJ 2000 L 109, p. 29.

(2)  OJ 1990 L 173, p. 1.

(3)  OJ 2008 L 157, p. 46.

(4)  Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97.

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22.11.2008

EN

Official Journal of the European Union

C 301/17

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 27 August 2008 — Attanasio Group Srl v Comune di Carbognano

(Case C-384/08)

(2008/C 301/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Attanasio Group Srl

Defendant: Comune di Carbognano

Question referred

Are the Italian regional and national provisions laying down mandatory minimum distances between roadside petrol stations and, in particular, Article 13 of the Regional Law of Latium, which applies to the case before this Court and is material for the decision in those proceedings, as well as the national framework legislation (Legislative Decree No 32/1998, as subsequently amended and supplemented, Law No 57/2001 and Ministerial Decree of 31 October 2001), in so far as they allow, or in any event have not prevented provision being made, in the exercise of the regulatory powers of the Italian State, for minimum distances between petrol stations under Article 13, compatible with Community law, in particular Articles 43, 48, 49 and 56 of the EC Treaty and the principles of freedom of competition and non-discrimination enshrined in that treaty, as stated in the grounds?

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22.11.2008

EN

Official Journal of the European Union

C 301/18

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Appeal brought on 16 September 2008 (by fax on 12 September 2008) by Audi AG against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 July 2008 in Case T-70/06 Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F. Schiwek, Rechtsanwälte)

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

Form of order sought

—	Set aside the judgment under appeal;

—	Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 December 2005 in Case R 237/2005-2 in so far as it dismisses in part the appeal against the examiner's decision;

—	Order the Office for Harmonisation in the Internal Market to pay the costs of proceedings before the Court of Justice, before the Court of First Instance and before the Board of Appeal.

Pleas in law and main arguments

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark: The Court of First Instance — like the Board of Appeal — did not state sufficient reasons regarding the relevant public in each case. In view of the large number of goods and services to be covered by the trade mark applied for, it was not permissible to take a uniform view across the board.

Further, the Court of First Instance applied too strict a standard when considering distinctive character. The Court of First Instance disregarded the fact that even so-called advertising slogans are essentially word marks. It applied noticeably stricter requirements to establish distinctive character solely on the basis of the fact that in its view the trade mark applied for, ‘Vorsprung durch Technik’, was an advertising slogan.

Breach of Article 63 of Council Regulation No 40/94: The Court of First Instance confined itself to reviewing the decision of the Board of Appeal. New facts put forward by the parties, which were not already covered by the decision of the Board of Appeal were neither admitted nor taken into account in the decision. However, when considering distinctive character, the Court of First Instance referred to a document which was only submitted by the defendant with the defence. The finding that the trade mark applied for, ‘Vorsprung durch Technik’, was devoid of distinctive character was based essentially on the content of that document and the appraisal of that content by the Court of First Instance.

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22.11.2008

EN

Official Journal of the European Union

C 301/18

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Appeal brought on 15 September 2008 (by fax on 12 September 2008) by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Third Chamber, Extended Composition) on 1 July 2008 in Case T-266/02 Deutsche Post AG, supported by the Federal Republic of Germany v Commission of the European Communities, supported by Bundesverband Internationaler Express- und Kurierdienste eV (BIEK) and UPS Europe NV/SA

(Case C-399/08 P)

(2008/C 301/33)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by V. Kreuschitz, J. Flett and B. Martenczuk, acting as Agents)

Other parties to the proceedings: Bundesverband Internationaler Express- und Kurierdienste eV, UPS Europe NV/SA, Deutsche Post AG, Federal Republic of Germany

Form of order sought

—	set aside the judgment under appeal in its entirety;

—

declare, pursuant to Article 61 of the Statute of the Court of Justice, that the applicant has failed to prove that the decision infringes Article 87(1) EC, and accordingly dismiss the application. In the alternative, the Commission asks for the case to be referred back to the Court of First Instance;

—	order the applicant to pay the costs.

Pleas in law and main arguments

The respondent to the appeal is Deutsche Post AG (DPAG), a large undertaking internationally active in the field of postal services, which received substantial compensation payments from State resources. In a separate decision under Article 82 EC from 2002, which has not been contested, the Commission found that DPAG had abused its dominant position in the market by means of prices on the parcels market that did not cover costs. Since DPAG had made losses everywhere in the period in question, that aggressive price policy could only have been financed by the resources the undertaking had received as financial compensation.

The central issue in the present appeal is which method of analysis the Commission was entitled to apply in the particular circumstances of the present case in order to find that there was unlawful aid to DPAG.

According to the method preferred by the Court of First Instance in the judgment under appeal, all the undertaking's costs and receipts in the relevant period in connection with the public interest obligations would have to be examined as to whether the undertaking had received excessive financial compensation from the State. If there were such overcompensation, it could be concluded that those resources had also been used to finance the unfair price policy in the adjacent market of door-to-door parcel services.

According to the method used in the decision, the deficits in the adjacent market caused by the unfair price policy are calculated and it is ascertained whether or not those shortfalls have been compensated with State resources. If such a compensation is found and there is no other source of finance (in the form of the undertaking's own resources), the conclusion is that State resources have been made use of to finance the unfair price policy in the adjacent market of door-to-door parcel services.

The Commission regards the method used in its decision as correct. By means of that method, on the basis of a logical chain of reasoning which includes the assumption that money must after all come from somewhere, the existence of unlawful State aid may be deduced. Neither the chain of reasoning nor the underlying facts are challenged in the judgment under appeal. The Court of First Instance nevertheless takes the view in the judgment under appeal, without further explanation, that only the former method is possible.

The Commission puts forward the following grounds of appeal. There is an infringement of Articles 87(1) EC and 86(2) EC, in so far as those provisions were incorrectly interpreted in the judgment under appeal as excluding a method, not otherwise challenged in the judgment under appeal, which makes it possible to conclude, on the basis of logical and watertight reasoning, that State aid incompatible with the common market is present. The Commission further relies on lack of jurisdiction of the Court of First Instance and breach of Article 230 EC, in so far as the Court of First Instance exceeded its powers and went beyond the power of review provided for in Article 230 EC, and on Article 36 of the Statute of the Court of Justice, in so far as the Court of First Instance failed to state reasons for the unlawfulness of the method used in the decision.

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22.11.2008

EN

Official Journal of the European Union

C 301/19

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 17 September 2008 — Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA v QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Phillip George Charles Houghton, Derek Owen

(Case C-403/08)

(2008/C 301/34)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA

Defendants: QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Phillip George Charles Houghton, Derek Owen

Questions referred

A.   On the interpretation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (1)

Q1   Illicit device

(a)

Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, does that device become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84/EC if it is used to give access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider?

(b)	What is the meaning of ‘designed or adapted’ within Article 2(e) of the Directive?

Q2   Cause of action

When a first service provider transmits programme content in encoded form to a second service provider who broadcasts that content on the basis of conditional access, what factors are to be taken into account in determining whether the interests of the first provider of a protected service are affected, within the meaning of Article 5 of Directive 98/84/EC?

In particular:

Where a first undertaking transmits programme content (comprising visual images, ambient sound and English commentary) in encoded form to a second undertaking which in turn broadcasts to the public the programme content (to which it has added its logo and, on occasion, an additional audio commentary track):

(a)	Does the transmission by the first undertaking constitute a protected service of ‘television broadcasting’ within the meaning of Article 2(a) of Directive 98/84/EC and Article 1(a) of Directive 89/552/EEC (2)?

(b)	Is it necessary for the first undertaking to be a broadcaster within the meaning of Article 1(b) of Directive 89/552/EEC in order to be considered as providing a protected service of ‘television broadcasting’ within the first indent of Article 2(a) of Directive 98/84/EC?

(c)

Is Article 5 of Directive 98/84/EC to be interpreted as conferring a civil right of action on the first undertaking in respect of illicit devices which give access to the programme as broadcast by the second undertaking, either: (i) because such devices are to be regarded as giving access via the broadcast signal to the first undertaking's own service; or (ii) because the first undertaking is the provider of a protected service whose interests are affected by an infringing activity (because such devices give unauthorised access to the protected service provided by the second undertaking)?

(d)	Is the answer to (c) affected by whether the first and second service providers use different decryption systems and conditional access devices?

Q3   Commercial purposes

Does ‘possession for commercial purposes’ in Article 4(a) of the Directive relate only to possession for the purposes of commercial dealings in (for example, sales of) illicit devices,

or does it extend to the possession of a device by an end user in the course of a business of any kind?

B.   On the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (3)

Q4   Reproduction Right

Where sequential fragments of a film, musical work or sound recording (in this case frames of digital video and audio) are created (i) within the memory of a decoder or (ii) in the case of a film on a television screen, and the whole work is reproduced if the sequential fragments are considered together but only a limited number of fragments exist at any point in time:

(a)	Is the question of whether those works have been reproduced in whole or in part to be determined by the rules of national copyright law relating to what constitutes an infringing reproduction of a copyright work, or is it a matter of interpretation of Article 2 of Directive 2001/29/EC?

(b)

If it is a matter of interpretation of Article 2 of Directive 2001/29/EC, should the national court consider all of the fragments of each work as a whole, or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the works have been reproduced in part within the meaning of that Article?

(c)	Does the reproduction right in Article 2 extend to the creation of transient images on a television screen?

Q5   Independent economic significance

(a)

Are transient copies of a work created within a satellite television decoder box or on a television screen linked to the decoder box, and whose sole purpose is to enable a use of the work not otherwise restricted by law, to be regarded as having ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29/EC by reason of the fact that such copies provide the only basis upon which the rights holder can extract remuneration for the use of his rights?

(b)

Is the answer to Question 5(a) affected by (i) whether the transient copies have any inherent value; or (ii) whether the transient copies comprise a small part of a collection of works and/or other subject matter which otherwise may be used without infringement of copyright; or (iii) whether the exclusive licensee of the rights holder in another Member State has already received remuneration for use of the work in that Member State?

Q6   Communication to public by wire or wireless means

(a)

Is a copyright work communicated to the public by wire or wireless means within the meaning of Article 3 of Directive 2001/29/EC where a satellite broadcast is received at a commercial premises (for example a bar) and communicated or shown at those premises via a single television screen and speakers to members of the public present in those premises?

(b)

Is the answer to Question 6(a) affected if: (i) the members of the public present constitute a new public not contemplated by the broadcaster (in this case because a domestic decoder card for use in one Member State is used for a commercial audience in another Member State)? (ii) the members of the public are not a paying audience according to national law? (iii) the television broadcast signal is received by an aerial or satellite dish on the roof of or adjacent to the premises where the television is situated?

(c)	If the answer to any part of (b) is yes, what factors should be taken into account in determining whether there is a communication of the work which has originated from a place where members of the audience are not present?

C.   On the interpretation of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable transmission (4) and of Articles 28 and 30 and 49 of the EC Treaty

Q7   Defence under Directive 93/83

Is it compatible with Directive 93/83/EEC or with Articles 28 and 30 or 49 of the EC Treaty if national copyright law provides that when transient copies of works included in a satellite broadcast are created inside a satellite decoder box or on a television screen, there is an infringement of copyright under the law of the country of reception of the broadcast? Does it affect the position if the broadcast is decoded using a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

D.   On the interpretation of the Treaty rules on free movement of goods and services under Articles 28 and 30 and 49 EC in the context of the CAD

Q8   Defence under Articles 28 and/or 49 EC

(a)

If the answer to Q1 is that a conditional access device made by or with the consent of the service provider becomes an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84/EC when it is used outside the scope of the authorization of the service provider to give access to a protected service, what is the specific subject matter of the right by reference to its essential function conferred by the Conditional Access Directive?

(b)

Do Articles 28 or 49 of the EC Treaty preclude enforcement of a provision of national law in a first Member State which makes it unlawful to import or sell a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

(c)	Is the answer affected if the satellite decoder card is authorised only for private and domestic use in that other Member State but used for commercial purposes in the first Member State.

Q9   Whether the protection afforded to the Anthem can be any broader than that afforded to the rest of the broadcast

Do Articles 28 and 30 or 49 of the EC Treaty preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public a musical work where that work is included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the musical work is an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not prevented by national copyright law?

E.   On the interpretation of the Treaty rules on competition under Article 81 EC

Q10   Defence under Art 81EC

Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, what legal test should the national court apply and what circumstances should it take into consideration in deciding whether the contractual restriction contravenes the prohibition imposed by Article 81(1)?

In particular:

(a)	must Article 81(1) be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting or distorting competition?

(b)	if so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 81(1)?

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(1)  OJ L 320, p. 54.

(2)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television Broadcasting activities (OJ L 298, p. 23).

(3)  OJ L 167, p. 10.

(4)  OJ L 248, p. 15.

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22.11.2008

EN

Official Journal of the European Union

C 301/22

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Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 18 September 2008 — Ingeniørforeningen i Danmark, acting for Bertram Holst v Dansk Industri, acting for Babcock & Wilcox Vølund ApS

(Case C-405/08)

(2008/C 301/35)

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Ingeniørforeningen i Danmark, acting for Bertram Holst

Defendant: Dansk Industri, acting for Babcock & Wilcox Vølund ApS

Question referred

1.

There is disagreement amongst the parties as to whether Directive 2002/14/EC establishing a general framework for informing and consulting (1) employees has been correctly implemented in the Cooperation Agreement between DA and LO. In that connection, do Community rules preclude implementation of a directive in such a manner that groups of employees are covered by a collective agreement between parties which do not represent the professional group of the persons concerned and where the collective agreement does not cover the professional group of the persons concerned?

2.

If Directive 2002/14/EC has been correctly implemented for BH in the Cooperation Agreement between DA and LO, has Article 7 of the Directive been correctly implemented when it is established that the Cooperation Agreement does not contain a high standard of protection against dismissal for certain professional groups?

3.

If BH is covered by the legislative implementation of the Directive, do the requirements of Article 7 of the Directive concerning ‘adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them’ preclude an implementation of Article 7 of the Directive in section 8 of the [Law on informing and consulting employees], which reads as follows: ‘The representatives who are to be informed and consulted on behalf of the employees shall be protected against dismissal or other adverse consequences for their conditions of employment in the same manner as union representatives in the same or a similar professional field’, if the implementation does not contain a high standard of protection against dismissal for professional groups which are not covered by a collective agreement?

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(1)  OJ 2002 L 80, p. 29.

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22.11.2008

EN

Official Journal of the European Union

C 301/23

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Reference for a preliminary ruling from High Court of Justice (England and Wales) (Queen's Bench Division), Leeds District Registry, made on 18 September 2008 — Uniplex (UK) Ltd v NHS Business Services Authority

(Case C-406/08)

(2008/C 301/36)

Language of the case: English

Referring court

High Court of Justice (Queen's Bench Division)

Parties to the main proceedings

Applicant: Uniplex (UK) Ltd

Defendant: NHS Business Services Authority

Questions referred

Where an economic operator is challenging in national proceedings the award of a framework agreement by a contracting authority following a public procurement exercise in which he was a tenderer and which was required to be conducted in accordance with Directive 2004/18/EC (1) (and applicable implementing national provisions), and is in those proceedings seeking declarations and damages for breach of applicable public procurement provisions as regards that exercise and award:

(a)

is a national provision such as Regulation 47(7)(b) of the Public Contracts Regulations 2006 which states that those proceedings are to be brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose, unless the Court considers that there is good reason for extending the period, to be interpreted, in light of Directive 89/665/EEC (2), Articles 1 and 2, and the Community law principle of equivalence and the Community law requirement for effective legal protection, and/or the principle of effectiveness, and having regard to any other relevant principles of EC law, as conferring an individual and unconditional right upon the tenderer against the contracting authority such that the time for the bringing of proceedings challenging such a tender exercise and award starts running as from the date when the tenderer knew or ought to have known that the procurement procedure and award infringed EC public procurement law or as from the date of breach of the applicable public procurement provisions; and

(b)	in either event how is a national court then to apply (i) any requirement for proceedings to be brought promptly and (ii) any discretion as to extending the national limitation period for the bringing of such proceedings?

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(1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

(2)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, p. 33).

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22.11.2008

EN

Official Journal of the European Union

C 301/23

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Appeal brought on 23 September 2008 by Sviluppo Italia Basilicata SpA against the judgment delivered on 8 July 2008 in Case T-176/06 Sviluppo Italia Basilicata SpA v Commission of the European Communities

(Case C-414/08 P)

(2008/C 301/37)

Language of the case: Italian

Parties

Appellants: Sviluppo Italia Basilicata SpA (represented by: F. Sciaudone, R. Sciaudone and A. Neri, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court of Justice should:

—	set aside the judgment of the Court of First Instance of 8 July 2008 in Case T-176/06 (‘the judgment under appeal’) and refer the case back to the Court of First Instance for judgment in the light of such guidance as the Court of Justice may provide;

—	order the Commission to pay the costs of the present proceedings, as well as those incurred in the proceedings in Case T-176/06.

Pleas in law and main arguments

By the judgment under appeal, the Court of First Instance dismissed the action brought by Sviluppo Italia Basilicata SpA for (i) annulment of Commission Decision C(2006) 1706 of 20 April 2006 (‘the contested decision’) reducing the financial assistance from the European Regional Development Fund (ERDF) in favour of a global grant for the purposes of implementing measures for the encouragement of small and medium-sized enterprises (SMEs) operating in the Basilicata Region of Italy, and (ii) damages for the harm suffered by Sviluppo Italia Basilicata SpA following, and in consequence of, the adoption of that decision.

In support of the forms of order sought, the appellant alleges various errors of law on the part of the Court of First Instance.

First, the appellant maintains that, by addressing in reverse order the various pleas in law relied upon by Sviluppo Italia Basilicata SpA in support of its action at first instance, the Court of First Instance manifestly distorted the meaning and overall scope of the application.

Secondly, the appellant submits that the judgment under appeal contains various errors of law in relation to the interpretation and application of the Global Grant, the Agreement, and Datasheet No 19 in the Annex to Decision 97/322/EC (1) According to the appellant, the Court of First Instance did not understand the true content and purpose, in the light of the above measures, of Measure 2 of the Global Grant. In consequence, the interpretative analyses that the Court of First Instance then went on to make in relation to certain significant concepts (e.g. ‘impegno’ (commitment), ‘spesa’ (expenditure), ‘durata’ (duration)) were flawed on account of that serious initial error.

Thirdly, the appellant maintains that the Court of First Instance should have concluded that the contested decision was unlawful, in that it had been adopted on the basis of the alleged breach of a condition (‘the condition as to use’) which is not laid down in the decision granting the financial assistance, or in the global grant programme, and which raises problems relating to legal certainty and the excessive freedom with which it is applied.

Fourthly, the appellant alleges that the Court of First Instance misinterpreted — and, in consequence, failed to apply — the principles laid down by the Court of Justice in its judgment of 21 September 2000 in Case C-462/98 P Mediocurso v Commission  (2).

Fifthly, the appellant alleges infringement of Articles 25 and 26 of Regulation No 4253/88 (3) as regards the obligations of supervision and control incumbent upon the Commission. In particular, the statements made by the Court of First Instance would ultimately lead to the non-application and the non-observance of the supervision and monitoring arrangements provided for in the legislation in question.

Sixthly, the appellant alleges breach of the principles of legal certainty and the protection of legitimate expectations, in that the Court of First Instance rejected the complaints put forward by Sviluppo Italia Basilicata SpA on the erroneous premiss that the expectations generated by the Commission (inter alia, through the behaviour of the Monitoring Committee) were in any event incompatible with the applicable provisions and could not therefore be protected.

Seventhly, the appellant maintains that the Court of First Instance distorted the clear sense of the evidence and infringed the general principles relating to the burden of proof, in that it refused to recognise as established facts either the evidence provided by Sviluppo Italia Basilicata SpA or certain facts which constituted common ground.

Eighthly, the appellant alleges breach of the Community case-law relating to the application of the principle of proportionality in cases where Community funding is reduced, in that the Court of First Instance did not take into account the circumstances which would have led the financial adjustment to be less severe.

As regards the grounds of appeal relating to the claim for damages, the appellant alleges above all that erroneous and inadequate reasons were given in the judgment under appeal for dismissing the application for compensation, as regards the harm attributable to the Community's liability in respect of unlawful acts.

Lastly, the appellant alleges that erroneous and inadequate reasons were given in the judgment under appeal for dismissing the application for compensation, as regards the harm attributable to the Community's liability in respect of lawful acts (‘objective liability’).

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(1)  Commission Decision of 23 April 1997 modifying the decisions approving the Community support frameworks, the single programming documents and the Community initiative programmes in respect of Italy (OJ 1997 L 146, p. 11).

(2)  [2000] ECR I-7183.

(3)  Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

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22.11.2008

EN

Official Journal of the European Union

C 301/25

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Appeal brought on 22 September 2008 by Apple Computer, Inc. against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-328/05 Apple Computer, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-416/08 P)

(2008/C 301/38)

Language of the case: English

Parties

Appellants: Apple Computer, Inc. (represented by: M. Hart, N. Kearley, Solicitors)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), TKS-Teknosoft SA

Form of order sought

The appellant claims that the Court should order that:

—	The appeal by the applicant to the European Court of Justice be allowed;

—	The judgment of the Court of First Instance of the European Communities (CFI) in case T-328/05 of 1 July 2008 be set aside;

—	The case be referred back to the CFI; and

—	The costs in the case be reserved.

Pleas in law and main arguments

1.

Apple, Inc., (the applicant) has applied to register a Community Trademark for the word mark ‘QUARTZ’. Its application covers: ‘A computer operating system functionality specially intended for use by IT developers with the aim of improving and accelerating the reproduction of digital images in application programs, except products intended for the banking sector’ in Class 9.

2.

TKS-Teknosoft S.A. (the ‘Opponent’) is the registered proprietor of a Community Trade Mark Registration for the figurative mark ‘QUARTZ’, which was in respect of, amongst other things: (a) ‘packets of programs for banking’ in Class 9; and (b) ‘computer programming, computer data processing, computer software development, assistance and consulting services in the computer field electronic data processing, computer software design and development, licensing of computer software and computer applications; all these services being linked to banking’ in Class 42.

The Opponent opposes the registration of the Applicant's QUARTZ mark on the basis that there would be a likelihood of confusion between the two marks. The Court of First Instance agreed.

The Applicant submits that the CFI erred in law because:

(a)	the goods in respect of which the two marks would be registered and used are clearly different and the CFI failed to take into account those relevant differences;

(b)	it did not correctly identify the relevant ‘public’ for the purposes of assessing whether confusion was likely. In particular, it did not give sufficient weight to the fact that the relevant public must logically be software specialists employed in or providing services to the banking sector; and

(c)	it therefore misapplied the global appreciation test as previously set out by the European Court of Justice.

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22.11.2008

EN

Official Journal of the European Union

C 301/25

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Action brought on 22 September 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-417/08)

(2008/C 301/39)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A.A. Gilly and U. Wölker, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 concerning environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to communicate them to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive;

—	order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 30 April 2007.

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(1)  OJ L 143, p. 56.

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22.11.2008

EN

Official Journal of the European Union

C 301/26

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Action brought on 22 September 2008 — Commission of the European Communities v Ireland

(Case C-418/08)

(2008/C 301/40)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and A.A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 concerning environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;

—	order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 30 April 2007.

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(1)  OJ L 143, p. 56.

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22.11.2008

EN

Official Journal of the European Union

C 301/26

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Action brought on 24 September 2008 — Commission of the European Communities v Republic of Austria

(Case C-422/08)

(2008/C 301/41)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and B. Schöfer, acting as Agents)

Defendant: Republic of Austria

Form of order sought

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive.

—	Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the Directive expired on 30 April 2007.

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(1)  OJ 2004 L 143, p. 56.

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22.11.2008

EN

Official Journal of the European Union

C 301/26

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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 29 September 2008 — Karen Murphy v Media Protection Services Limited

(Case C-429/08)

(2008/C 301/42)

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: Karen Murphy

Defendant: Media Protection Services Limited

Questions referred

1.	In what circumstances is a conditional access device an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84/EC (1)?

2.

In particular, is a conditional access device an ‘illicit device’ if it is acquired in circumstances where: (i) the conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and was used to gain access to that protected service received in another Member State? and/or (ii) the conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or (iii) the conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house?

3.	If the answer to any part of Question 2 is ‘no’, does Article 3(2) of that Directive preclude a Member State from invoking a national law that prevents use of such conditional access devices in the circumstances set out in Question 2 above?

4.	If the answer to any part of Question 2 is ‘no’, is Article 3(2) of that Directive invalid: (a) for the reason that it is discriminatory and/or disproportionate; and/or (b) for the reason that it conflicts with free movement rights under the Treaty; and/or (c) for any other reason?

5.

If the answer to Question 2 is ‘yes’, are Articles 3(1) and 4 of that Directive invalid for the reason that they purport to require the Member States to impose restrictions on the importation from other Member States of and other dealings with ‘illicit devices’ in circumstances where those devices may lawfully be imported and/or used to receive cross border satellite broadcasting services by virtue of the rules on the free movement of goods under Articles 28 and 30 of the EC Treaty and/or the freedom to provide and receive services under Article 49 of the EC Treaty?

On the interpretation of Articles 12, 28, 30 and 49 of the EC Treaty

6.

Do Articles 28, 30 and/or 49 EC preclude enforcement of a national law (such as section 297 of the Copyright Designs and Patents Act 1988) which makes it a criminal offence dishonestly to receive a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme, in any of the following circumstances: (i) where the conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and was used to gain access to that protected service received in another Member State (in this case the UK)? and/or (ii) where the conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or (iii) where the conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house?

7.

Is enforcement of the national law in question in any event precluded on the ground of discrimination contrary to Article 12 EC or otherwise, because the national law applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State?

On the interpretation of Article 81 of the EC Treaty

8.

Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, what legal test should the national court apply and what circumstances should it take into consideration in deciding whether the contractual restriction contravenes the prohibition imposed by Article 81(1)? In particular: (a) must Article 81(1) be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting or distorting competition? (b) if so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 81(1)?

---

(1)  Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ L 320, p. 54).

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22.11.2008

EN

Official Journal of the European Union

C 301/28

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Action brought on 30 September 2008 — Commission of the European Communities v Republic of Poland

(Case C-435/08)

(2008/C 301/43)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by K. Simonsson and M. Owsiany-Hornung, acting as Agents)

Defendant: Republic of Poland

Form of order sought

—

declare that, by excluding all recreation craft from the scope of the regulation of the Minister for Infrastructure of 13 December 2002 on detailed conditions for the safety of navigation by marine vessels, which transposed into national law certain provisions of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC (1), and by adopting the provisions in paragraph 3.3 of the regulation of the Minister for Infrastructure of 12 May 2003 on the transmission of information by the owner of a vessel carrying dangerous or polluting cargo, which transposed into national law Article 13 of Directive 2002/59/EC and enables owners of vessels sailing from Polish ports, if at the time of leaving port the name of the port of destination or the anchorage is not known, not to transmit the general information concerning the vessel and information on its cargo (specified in Annex I(3) to Directive 2002/59/EC) until the time of fixing the vessel's route, the Republic of Poland has failed to fulfil its obligations under Articles 2 and 13 of that directive;

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Republic of Poland has failed to fulfil its obligations under Articles 2 and 13 of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC.

The Republic of Poland has incorrectly implemented Article 2 of Directive 2002/59/EC, which excludes from its scope ‘fishing vessels, traditional ships and recreational craft with a length of less than 45 metres’.

Point 2 of paragraph 2.1 of the regulation of the Minister for Infrastructure of 13 December 2002 on detailed conditions for the safety of navigation by marine vessels, which transposed into national law certain provisions of the directive, goes further in this respect, excluding all recreational craft from its scope. The Commission considers that such a limitation of the scope of the directive is contrary to the provisions of Article 2.

The Republic of Poland has further failed to fulfil its obligations under Article 13 of Directive 2002/59/EC. Article 13(1) of the directive lays down that the ‘operator, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods and leaving a port of a Member State shall, at the latest at the moment of departure, notify the information indicated in Annex I(3) to the competent authority designated by that Member State’.

A similar obligation is laid down by paragraph 3.1 of the regulation of the Minister for Infrastructure of 12 May 2003 on the transmission of information by the owner of a vessel carrying dangerous or polluting cargo. However, paragraph 3.3 of that regulation states that ‘if at the time of leaving port the name of the port of destination or the anchorage is not known, the information … is to be transmitted at the latest at the time of fixing the vessel's route’.

That possibility is not limited to the specific case mentioned in Article 13(2) of the directive (‘a ship … coming from a port located outside the Community and bound for a port of a Member State or an anchorage located in a Member State's territorial waters’). The divergence relating to the time of transmission of the information is in the Commission's view contrary to Article 13 of the directive.

---

(1)  OJ L 208, 5.8.2002, p. 10.

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22.11.2008

EN

Official Journal of the European Union

C 301/29

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Order of the President of the Court of 4 August 2008 — Commission of the European Communities v Republic of Cyprus

(Case C-490/07) (1)

(2008/C 301/44)

Language of the case: Greek

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

---

(1)  OJ C 315, 22.12.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/29

---

Order of the President of the Court of 10 July 2008 — Commission of the European Communities v Hellenic Republic

(Case C-117/08) (1)

(2008/C 301/45)

Language of the case: Greek

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

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(1)  OJ C 116, 9.5.2008.

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22.11.2008

EN

Official Journal of the European Union

C 301/30

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Judgment of the Court of First Instance of 8 October 2008 — SGL Carbon v Commission

(Case T-68/04) (1)

(Competition - Agreements, decisions and concerted practices - Market for electrical and mechanical carbon and graphite products - Guidelines on the method of setting fines - Gravity and duration of the infringement - Principle of proportionality - Principle of equal treatment - Maximum limit of 10 % of turnover - Default interest)

(2008/C 301/46)

Language of the case: German

Parties

Applicant: SGL Carbon AG (Wiesbaden, Germany) (represented by: M. Klusmann and A. von Bonin, lawyers)

Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and W. Mölls, acting as Agents, and H.-J. Freund, lawyer)

Re:

Application for the annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No C.38.359 — Electrical and mechanical carbon and graphite products) and, in the alternative, an application for the reduction of the fine imposed on the applicant in that decision

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders SGL Carbon AG to pay the costs.

---

(1)  OJ C 106, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/30

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Judgment of the Court of First Instance of 8 October 2008 — Schunk and Schunk Kohlenstoff-Technik v Commission

(Case T-69/04) (1)

(Competition - Agreements, decisions and concerted practices - Market for electrical and mechanical carbon and graphite products - Plea of illegality - Article 15(2) of Regulation No 17 - Attributability of the unlawful conduct - Guidelines on the method of setting fines - Gravity and effect of the infringement - Deterrent effect - Cooperation during the administrative procedure - Principle of proportionality - Principe of equal treatment - Counterclaim to increase the fine)

(2008/C 301/47)

Language of the case: German

Parties

Applicants: Schunk GmbH (Thale, Germany); and Schunk Kohlenstoff-Technik GmbH (Heuchelheim, Germany) (represented by: initially by R. Bechtold and S. Hirsbrunner, and subsequently by R. Bechtold, S. Hirsbrunner and A. Schädle, lawyers)

Defendant: Commission of the European Communities (represented by: initially by F. Castillo de la Torre and H. Gading, and subsequently by F. Castillo de la Torre and M. Kellerbauer, Agents)

Re:

APPLICATION for the annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No C.38.359 — Electrical and mechanical carbon and graphite products) and, in the alternative, for the reduction of the fine imposed on the applicants in that decision, and a counterclaim of the Commission seeking to have that fine increased.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Schunk GmbH and Schunk Kohlenstoff-Technik GmbH to pay the costs.

---

(1)  OJ C 106, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/31

---

Judgment of the Court of First Instance of 8 October 2008 — Carbone-Lorraine v Commission

(Case T-73/04) (1)

(Competition - Agreements, decisions and concerted practices - Market for electrical and mechanical carbon and graphite products - Guidelines on the method of setting fines - Gravity and duration of the infringement - Mitigating circumstances - Cooperation during the administrative procedure - Principle of proportionality - Principle of equal treatment)

(2008/C 301/48)

Language of the case: French

Parties

Applicant: Carbone-Lorraine (Courbevoie, France) (represented by: A. Winckler and I. Simic, then A. Winckler and H. Kanellopoulos, lawyers)

Defendant: Commission of the European Communities (represented by: F Castillo de la Torre and É. Gippini Fournier, Agents)

Re:

APPLICATION for annulment of Commission Decision 2004/420/EC of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No C.38.359 — Electrical and mechanical carbon and graphite products), and, in the alternative, annulment or reduction of the fine imposed on the applicant by that decision

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Le Carbone-Lorraine to pay the costs.

---

(1)  OJ C 106, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/31

---

Judgment of the Court of First Instance of 8 October 2008 — Helkon Media v Commission

(Case T-122/06) (1)

(Arbitration clause - Programme to encourage the development, distribution and promotion of European audio-visual works (MEDIA Plus) - Demand for payment of financial aid - Existence of an arbitration clause - Compensation - Admissibility)

(2008/C 301/49)

Language of the case: German

Parties

Applicant: Helkon Media AG (Munich, Germany) (represented by: U. Karpenstein, lawyer)

Defendant: Commission of the European Communities (represented by: G. Wilms and I. Kaufmann-Bühler, acting as Agents)

Re:

Action under Article 238 EC for an order that the Commission pay to the applicant a sum allegedly owed under a contract relating to Community support for the project ‘DARK BLUE WORLD’ (Project no. 2002-4212-0103DI010006DE).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Helkon Media AG to pay the costs.

---

(1)  OJ C 154, 1.7.2006.

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22.11.2008

EN

Official Journal of the European Union

C 301/31

---

Judgment of the Court of First Instance of 10 October 2008 — Inter-Ikea Systems v OHIM (Representation of a pallet)

(Joined Cases T-387/06 to T-390/06) (1)

(Community trade mark - Application for registration of figurative Community trade mark representing a pallet - Absolute ground for refusal - Article 7(1)(b) of Regulation (EC) No 40/94)

(2008/C 301/50)

Language of the case: English

Parties

Applicant: Inter-Ikea Systems BV (Delft, Netherlands) (represented by: J. Gulliksson, lawyer)

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

Re:

ACTIONS brought against four decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2006 (R 353/2006-1, R 354/2006-1, R 355/2006-1 and R 356/2006-1) concerning applications for the registration of four figurative trade marks consisting of graphic representations of a pallet.

Operative part of the judgment

The Court:

1.

Annuls the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 September 2006 (R 353/2006-1, R 354/2006-1, R 355/2006-1 and R 356/2006-1) in so far as registration of the marks applied was refused in respect of goods and services in Classes 6, 7, 16, 20, 35, 39 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended but not in so far as that refusal was in respect of ‘loading pallets of metal’, ‘loading carriers and loading pallets of metal for packaging and transportation purposes’ and ‘metal transport pallets’, in Class 6; ‘goods pallets not of metal’, ‘loading pallets and loading carriers not of metal for packaging and transportation purposes’ and ‘transport pallets not of metal’, in Class 20; and the ‘rental of loading pallets’ services, in Class 39;

2.	Dismisses the actions as to the remainder;

3.	Orders each party to bear its own costs.

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(1)  OJ C 20, 27.1.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/32

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Judgment of the Court of First Instance of 8 October 2008 — Sogelma v EAR

(Case T-411/06) (1)

(Public works contracts - Tender procedure of the European Agency for Reconstruction - Decision to cancel tender procedure and to publish a new procedure - Action for annulment - Jurisdiction of the Court of First Instance - Necessity of a prior administrative complaint - Time-limit for bringing proceedings - Instructions to act as agent - Obligation to state the reasons on which the decision is based - Application for damages)

(2008/C 301/51)

Language of the case: Italian

Parties

Applicant: Sogelma — Societá generale lavori manutenzioni appalti Srl (Scandicci, Italy) (represented by: E. Cappelli, P. De Caterini, A. Bandini and A. Gironi, lawyers)

Defendant: European Agency for Reconstruction (EAR) (represented by: initially by O. Kalha, subsequently by M. Dischendorfer and then by R. Lundgren, Agent and by S. Bariatti and F. Scanzano, lawyers)

Intervener in support of the defendant: Commission of the European Communities (represented by: P. van Nuffel and L. Prete, Agents)

Re:

APPLICATION for annulment of decisions of the EAR relating to cancellation of the tender procedure for the public works contract reference EuropeAid/120694/D/W/YU and organisation of a new tender procedure, and an application for compensation for loss allegedly suffered.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Sogelma — Societá generale lavori manutenzioni appalti Srl to bear its own costs and to pay those incurred by the European Agency for Reconstruction;

3.	Orders the Commission to bear its own costs.

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(1)  OJ C 42, 24.2.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/32

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Judgment of the Court of First Instance of 13 October 2008 — Neophytou v Commission

(Case T-43/07 P) (1)

(Appeals - Staff cases - Open competition - Rejection of the appellant's candidature - Composition of the selection board for the oral tests - Principle of equal treatment - New pleas in law - Error of law - Appeal in part unfounded and in part founded - Referral back to the Civil Service Tribunal)

(2008/C 301/52)

Language of the case: English

Parties

Applicant: Neophytos Neophytou (Itzig, Luxembourg) (represented by: S. Pappas, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall and H. Krämer, acting as Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006 in Case F-22/05 Neophytou v Commission [2006] ECR-SC II-A-1-617 seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.

Sets aside the judgment of the European Union Civil Service Tribunal of 13 December 2006 in Case F-22/05 Neophytou v Commission to the extent that the Civil Service Tribunal held that the submissions, with the exception of the last, put forward by Mr Neophytos Neophytou at the hearing at first instance and summarised in paragraph 27 of that judgment, were inadmissible;

2.	Dismisses the remainder of the appeal;

3.	Refers the case back to the Civil Service Tribunal;

4.	Orders that the costs be reserved.

---

(1)  OJ C 82, 14.4.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/33

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Judgment of the Court of First Instance of 8 October 2008 — Agrar-Invest-Tatschl v Commission

(Case T-51/07) (1)

(Post-clearance recovery of import duties - Sugar originating from Croatia - Article 220(2)(b) of Regulation (EEC) No 2913/92 - Notice to importers published in the Official Journal - Good faith)

(2008/C 301/53)

Language of the case: German

Parties

Applicant: Agrar-Invest-Tatschl GmbH (St. Andrä im Lavanttal, Austria) (represented by: U. Schrömbges and O. Wenzlaff, lawyers)

Defendant: Commission of the European Communities (represented by: A. Alcover San Pedro and S. Schønberg, acting as Agents, assisted by B. Wägenbaur, lawyer)

Re:

ACTION for annulment in part of Commission Decision C(2006) 5789 final of 4 December 2006.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Agrar-Invest-Tatschl GmbH to bear the costs.

---

(1)  OJ C 95, 28.4.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/33

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Judgment of the Court of First Instance of 10 October 2008 — Imperial Chemical Industries v OHIM (LIGHT & SPACE)

(Case T-224/07) (1)

(Community trade mark - Application for registration of Community word mark LIGHT & SPACE - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2008/C 301/54)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries plc (London, United Kingdom) (represented by: initially by S. Malynicz, Barrister and V. Chandler, Solicitor and subsequently by S. Malynicz, J. Bainbridge and K. Briggs, Solicitors)

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

Re:

Action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 March 2007 (Case R 1631/2006-1) concerning registration of the sign LIGHT & SPACE as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Imperial Chemical Industries plc to pay the costs.

---

(1)  OJ C 199, 25.8.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/34

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Order of the Court of First Instance of 12 September 2008 — Keinhorst v Commission

(Case T-428/03) (1)

(Staff case - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 301/55)

Language of the case: French

Parties

Applicant: Gerhard Keinhorst (Overijse, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented initially by C. Berardis-Kayser and L. Lozano Palacios, and subsequently by C. Berardis-Kayser and H. Krämer, Agents)

Re:

First, application for annulment of the Commission's decisions of 23 December 2002 and 14 April 2003 altering the applicant's classification in grade, in so far as they fix his classification in step on recruitment in step 1 of Grade A6, fix 5 October 1995 as the date on which the decisions were to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the Commission's decisions of 4 September and 24 November 2003 rejecting the applicant's complaints and, second, an application for compensation for the damage allegedly caused.

Operative part of the order

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

2.	The Commission shall pay all the costs.

---

(1)  OJ C 47, 21.2.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/34

---

Order of the Court of First Instance of 12 September 2008 — Rousseaux v Commission

(Case T-125/04) (1)

(Staff case - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 301/56)

Language of the case: French

Parties

Applicant: Patrick Rousseaux (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents, assisted by B. Wägenbaur, lawyer)

Re:

First, application for annulment of the Commission's decision of 14 April 2003 altering the applicant's classification in grade, in so far as it fixes his classification in step on recruitment in step 2 of Grade A6, fixes 5 October 1995 as the date on which the decision was to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the decision rejecting the applicant's complaint and, second, an application for compensation for the damage allegedly caused by that decision.

Operative part of the order

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

2.	The Commission shall pay all the costs.

---

(1)  OJ C 118, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/34

---

Order of the Court of First Instance of 12 September 2008 — Goris v Commission

(Case T-126/04) (1)

(Staff case - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 301/57)

Language of the case: French

Parties

Applicant: Willem Goris (Strassen, Luxembourg) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents, assisted by B. Wägenbaur, lawyer)

Re:

First, application for annulment of the Commission's decision of 5 May 2003 altering the applicant's classification in grade, in so far as it fixes his classification in step on recruitment in step 2 of Grade B4, fixes 5 October 1995 as the date on which the decision was to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the decision rejecting the applicant's complaint and, second, an application for compensation for the damage allegedly caused by that decision.

Operative part of the order

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

2.	The Commission shall pay all the costs.

---

(1)  OJ C 118, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/35

---

Order of the Court of First Instance of 12 September 2008 — Jacobs v Commission

(Case T-131/04) (1)

(Staff case - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 301/58)

Language of the case: French

Parties

Applicant: Luc Jacobs (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents, assisted by B. Wägenbaur, lawyer)

Re:

First, application for annulment of the Commission's decision of 14 April 2003 altering the applicant's classification in grade, in so far as it fixes his classification in step on recruitment in step 2 of Grade B4, fixes 5 October 1995 as the date on which the decision was to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the decision rejecting the applicant's complaint and, second, an application for compensation for the damage allegedly caused by that decision.

Operative part of the order

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

2.	The Commission shall pay all the costs.

---

(1)  OJ C 118, 30.4.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/35

---

Order of the Court of First Instance of 12 September 2008 — Tachelet v Commission

(Case T-293/04) (1)

(Staff case - Officials - Interlocutory judgment - No need to adjudicate)

(2008/C 301/59)

Language of the case: French

Parties

Applicant: Guy Tachelet (Rijmenam, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Re:

First, application for annulment of the Commission's decision of 2 September 2003 altering the applicant's classification in grade, in so far as it fixes his classification in step on recruitment in step 2 of Grade B4 and did not re-establish the applicant's career grade, and an application for annulment of the decision rejecting the applicant's complaint and, second, an application for compensation for the damage allegedly caused by that decision.

Operative part of the order

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

2.	The Commission shall pay all the costs.

---

(1)  OJ C 262, 23.10.2004.

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22.11.2008

EN

Official Journal of the European Union

C 301/36

---

Order of the Court of First Instance of 23 September 2008 — Gόrażdże Cement v Commission

(Case T-193/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/60)

Language of the case: English

Parties

Applicant: Gόrażdże Cement S.A. (Chorula, Poland) (represented by: P. Muñiz, lawyer and R. Forbes, Solicitor)

Defendant: Commission of the European Communities (represented by: U. Wölker and D. Lawunmi, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Gόrażdże Cement S.A. shall bear its own costs and pay those incurred by the Commission.

---

(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/36

---

Order of the Court of First Instance of 23 September 2008 — Lafarge Cement v Commission

(Case T-195/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/61)

Language of the case: Polish

Parties

Applicant: Lafarge Cement S.A. (Malogoszcz, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

Defendant: Commission of The European Communities (represented by: U. Wölker and K. Herrmann, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Lafarge Cement S.A. shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/37

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Order of the Court of First Instance of 23 September 2008 — Dyckerhoff Polska v Commission

(Case T-196/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/62)

Language of the case: Polish

Parties

Applicant: Dyckerhoff Polska sp. z o.o. (Sitkówka-Nowiny, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Dyckerhoff Polska sp. z o.o. shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/37

---

Order of the Court of First Instance of 23 September 2008 — Grupa Ożarów v Commision

(Case T-197/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/63)

Language of the case: Polish

Parties

Applicant: Grupa Ożarów S.A. (Karsy, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

Defendant: Commision of the European Communities (represented by: U. Wölker and K. Herrmann)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Grupa Ożarów S.A. shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/38

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Order of the Court of First Instance of 23 September 2008 — Cementownia ‘Warta’ S.A. v Commission of the European Communities

(Case T-198/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/64)

Language of the case: Polish

Parties

Applicant: Cementownia ‘Warta’ S.A. (Trębaczewo, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Cementownia ‘Warta’ S.A. shall bear its own costs and pay those of the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/38

---

Order of the Court of First Instance of 23 September 2008 — Cementownia ‘Odra’ v Commission

(Case T-199/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/65)

Language of the case: Polish

Parties

Applicant: Cementownia ‘Odra’ S.A. (Opole, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Cementownia ‘Odra’ S.A. shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/39

---

Order of the Court of First Instance of 23 September 2008 — Cemex Polska v Commission

(Case T-203/07) (1)

(Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)

(2008/C 301/66)

Language of the case: Polish

Parties

Applicant: Cemex Polska sp. z o.o. (Warsaw, Poland) (represented by: F. Puel and M. Szpunar, lawyers)

Defendant: Commission of the European Communities (represented by: U.Wölker and K. Herrmann, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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.	The action is dismissed as inadmissible.

2.	Cemex Polska sp. z o.o. shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 170, 21.7.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/39

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Order of the Court of First Instance of 25 September 2008 — Stepek v OHIM

(Case T-294/07) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark ‘GOLF-FASHION MASTERS THE CHOICE TO WIN’ - Earlier national figurative mark ‘The Masters GOLF COMPANY’ - Withdrawal of appeal brought before the Board of Appeal - Costs incurred before the Board of Appeal)

(2008/C 301/67)

Language of the case: German

Parties

Applicant: Wilhelm Stepek (Stadl-Paura, Austria) (represented by: H. Heigl, W. Berger and G. Lehner, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: The Masters Golf Company Ltd (Weston-super-Mare, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 23 May 2007 (Case R 95/2007-1) concerning opposition proceedings between The Masters Golf Company Ltd and Mr Wilhelm Stepek.

Operative part of the order

1.	The action is dismissed.

2.	Mr Wilhelm Stepek is ordered to pay the costs.

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(1)  OJ C 235, 6.10.2007.

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22.11.2008

EN

Official Journal of the European Union

C 301/40

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Order of the President of the Court of First Instance (Interim measures) of 26 September 2008 — Ellinikos Niognomon v Commission

(Case T-312/08 R)

(Application for interim measures - Directive 94/57/EC - Common rules and standards applicable to ship inspection and survey organisations - Withdrawal of recognition granted to such an organisation - Application for suspension of operation of a measure - Inadmissibility)

(2008/C 301/68)

Language of the case: English

Parties

Applicant: Ellinikos Niognomon AE (Piraeus, Greece) (represented by: S. Pappas, lawyer)

Defendant: Commission of the European Communities (represented by: H. Krämer and N. Yerrell, acting as Agents)

Re:

Application for suspension of operation of the letter of the Commission withdrawing the recognition granted to the applicant by Commission Decision 2005/623/EC of 3 August 2005 on the extension of the limited recognition of the Hellenic Register of Shipping (Ellinikos Niognomon AE) (OJ 2005 L 219, p. 43)

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

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22.11.2008

EN

Official Journal of the European Union

C 301/40

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Action brought on 11 August 2008 — Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission

(Case T-338/08)

(2008/C 301/69)

Language of the case: Dutch

Parties

Applicants: Stichting Natuur en Milieu (Utrecht, Netherlands) and Pesticide Action Network Europe (London, United Kingdom) (represented by: B. Kloostra and A. van den Biesen, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the Commission decisions of 1 July 2008 addressed to the applicants;

—	order the Commission to conduct a substantive examination of the requests for internal review;

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

Pleas in law and main arguments

The applicants have requested the Commission to review Regulation No 149/2008 (1), in accordance with Title IV of Regulation No 1367/2006 (2). By letters of 1 July 2008 the Commission declared those requests to be inadmissible on the ground that the contested regulation could not be regarded as being an act of individual scope or as being a bundle of decisions.

In support of their application, the applicants first submit that Regulation No 149/2008 consists of a bundle of decisions. The applicants contend that Regulation No 149/2008 applies to a definitively defined and previously determined group of products and active substances.

In this connection, the applicants also invoke the content of Regulation No 396/2005 (3). Under Article 6 of that regulation, a separate application for modification may be submitted for each maximum residue level established. This possibility is also granted to civil-society organisations with an interest in health, such as the applicants. A decision on such an application, they contend, must therefore be a decision which specifically relates to a particular product or a particular active substance. The same reasoning ought, in the applicants' view, to be followed in respect of maximum residue levels established by Regulation No 149/2008.

By way of alternative submission, the applicants contend that Regulation No 149/2008 concerns a decision which comes within the scope of Article 6(1) of the Aarhus Convention (4). Indeed, according to the applicants, it relates to a decision which is of direct and individual concern to the applicants in a manner which satisfies the requirements of the fourth paragraph of Article 230 EC.

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(1)  Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (Text with EEA relevance) (OJ 2008 L 58, p. 1).

(2)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

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

(4)  Convention on access to information, public participation in decision-making and access to justice in environmental matters — Declarations (OJ 2005 L 124, p. 4).

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22.11.2008

EN

Official Journal of the European Union

C 301/41

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Action brought on 26 August 2008 — vwd Vereinigte Wirtschaftsdienste v Commission

(Case T-353/08)

(2008/C 301/70)

Language of the case: German

Parties

Applicant: vwd Vereinigte Wirtschaftsdienste AG (Frankfurt am Main, Germany) (represented by R. Bechtold, U. Soltész and C. von Köckritz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul in its entirety, in accordance with the first paragraph of Article 231 EC, the Commission's decision of 19 February 2008, COMP/M.4726 — Thomson Corporation/Reuters Group;

—	order the Commission to pay the applicant's costs, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicant contests the Commission's decision of 19 February 2008 in Case No COMP/M.4726 — Thomson Corporation/Reuters Group, declaring the concentration of financial information providers Thomson Corporation and Reuters Group compatible with the common market in accordance with Article 8(2) of the EC Merger Regulation (1).

In support of its application, the applicant submits that the contested decision is vitiated by manifest errors of assessment, errors of law and breaches of essential procedural requirements. In this respect the applicant puts forward ten pleas in law.

First, the market for ‘real time datafeeds’ was wrongly delimited, so that the decision is contradictory and conflicts with the decision-making practice of the Commission.

Second, the market position of the parties and the effects of the concentration on the ‘real time datafeeds’ markets were incorrectly assessed, the competitive pressure emanating from Thomson being wrongly assessed in evaluating the horizontal effects of the concentration and the vertical effects of the concentration being misunderstood.

Third, in the market for ‘market data platforms’, the competitive pressure emanating from Thomson in combination with Wombat as the only serious potential competitor was disregarded when assessing the horizontal effects of the concentration.

Fourth, the strengthening as a result of the concentration of Reuters' incentives to foreclose access by third parties to ‘contribution data’ was not assessed.

Fifth, in the market for ‘news’, the market position of the parties and the effects of the concentration were assessed wrongly, and the creation of a monopoly on the ‘upstream’ market was made possible without comprehensible reasons being given.

Sixth, in the markets for ‘desktop products in research and asset management’, and in particular in the national markets for ‘wealth management desktop products’, no adequate investigation was made of the effects on competition of the concentration.

Seventh, the negative overall effects of the concentration across market boundaries were not examined, even though the Commission recognised in the decision that the relevant markets overlapped.

Eighth, commitments which did not relate to all the markets on which the concentration hindered effective competition were regarded as sufficient.

Ninth, the commitments in the areas covered were furthermore incapable of ensuring effective competition.

Tenth, the applicant's right to a fair hearing was infringed by procedural errors.

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(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

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22.11.2008

EN

Official Journal of the European Union

C 301/42

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Action brought on 27 August 2008 — Peek & Cloppenburg and van Graaf v OHIM — Thailand (Thai Silk)

(Case T-361/08)

(2008/C 301/71)

Language in which the application was lodged: German

Parties

Applicants: Peek & Cloppenburg (Hamburg, Germany) and van Graaf GmbH & Co. KG (Vienna, Austria) (represented by: V. von Bombard, A. Renck, T. Dolde and J. Pause, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Thailand

Form of order sought

—	annulment of the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) No R 1677/2007-4 of 10 June 2008

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Thailand

Community trade mark concerned: The figurative trade mark ‘Thai Silk’ with the colours ‘dark blue and white’ for goods in Classes 24 and 25 (Registration No 4 099 297)

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

Mark or sign cited in opposition: Representation of a black and white peacock for goods and services in Classes 18, 25 and 35.

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as there is a likelihood of confusion between the trade marks at issue due to their similar overall impression.

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22.11.2008

EN

Official Journal of the European Union

C 301/42

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Action brought on 28 August 2008 — IFAW Internationaler Tiershutz-Fonds v Commission

(Case T-362/08)

(2008/C 301/72)

Language of the case: English

Parties

Applicant: IFAW Internationaler Tiershutz-Fonds gGmbH (Hamburg, Germany) (represented by: S. Crosby and S. Santoro, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	To order the Commission to produce to the Court the letter from Mr Schröder, German Chancellor, of 15 March 2000 to Mr Prodi, President of the Commission;

—	To find that the contested decision is vitiated by an error of law and by manifest errors of assessment and to annul it accordingly; and

—	To order the Commission to pay the applicant's costs pursuant to Article 87 of the Rules of procedure of the Court of First Instance.

Pleas in law and main arguments

By judgment of 18 December 2007 in Case C-64/05 P (1), the Court of Justice set aside the judgment of the Court of First Instance of 30 November 2004 in Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR 1435, annulling the Commission's decision of 26 March 2002 which had refused access to the documents requested by the applicant by application of 20 December 2001, concerning the declassification of the Elbe site in Hamburg, a nature reserve, protected by the Natura 2000 scheme, as established by Council Directive 92/43/EEC (2), for the expansion of the existing Daimler Chrysler Aerospace GmbH plant for the final assembly of the Airbus A3XX. As a consequence, in the light of the Court's judgment on appeal, the applicant, by letter of 13 February 2008, renewed its application for access to the requested documents and made a confirmatory application, in accordance with Article 7(4) of Regulation (EC) No 1049/2001 (3) on 29 April 2008.

By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment of the Commission's decision of 19 June 2008, granting partial access to its request and refusing to allow access to one of the documents for which the applicant applied under Regulation (EC) No 1049/2001 of the European Parliament and of the Council.

The applicant claims that the Commission committed an error of law by applying Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 to a purely intra-EU relationship. Moreover, the applicant submits that the Commission committed a manifest error of law in considering that the content of Mr Schröder's letter was confidential to such an extent that its disclosure would jeopardise the economic policy of Germany and other EU Member States. Further, the applicant contends that the Commission committed manifest errors of assessment in considering that the disclosure of the letter would compromise the decision-making process and, finally, by not considering public interest as overriding the confidential nature of is decision-making process.

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(1)  Case C-64/05 P Kingdom of Sweden v Commission [2007] ECR 11389.

(2)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

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

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22.11.2008

EN

Official Journal of the European Union

C 301/43

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Action brought on 2 September 2008 — Federcoopesca and Others v Commission

(Case T-366/08)

(2008/C 301/73)

Language of the case: Italian

Parties

Applicants: Federazione Nazionale delle Cooperative della Pesca (Federcoopesca) (Rome, Italy); Pappalardo (Cetara, Italy); Pescatori La Tonnara (Cetara, Italy); Fedemar (Cetara, Italy); I Ciclopi di Tudisco Matteo (Catania, Italy); Testa (Catania, Italy); Pescatori San Pietro Apostolo, Camplone (Pescara, Italy), and Pesca (Pescara, Italy) (represented by: P. Cavatola, V. Cannizzaro and G. Micucci, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and principal arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore snc v Commission.

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22.11.2008

EN

Official Journal of the European Union

C 301/43

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Action brought on 26 August 2008 — Atlantean v Commission

(Case T-368/08)

(2008/C 301/74)

Language of the case: English

Parties

Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M. Fraser, D. Hennessy, Solicitors, G. Hogan SC, E. Regan, and C. Toland, Barristers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Commission Decision C(2008) 3236 of 26 June 2008 addressed to Ireland responding to the request by Ireland concerning the Atlantean;

—	Order the Commission to pay the applicant's costs of these proceedings.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for partial annulment of Commission Decision C(2008) 3236 final of 26 June 2008 which provided for the rejection of the request by Ireland in respect of the applicant's vessel Atlantean to increase capacity under the fourth multi-annual guidance programme (MAGP IV) applicable for the reasons of improvements in safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall. The first Commission Decision 2003/245/EC of 4 April 2003 (1) rejecting the request by Ireland was annulled by the Court's judgment of 13 June 2006 in so far as it applied to the applicant's vessel Atlantean (2).

The applicant states in support of its contentions that the contested decision was not made on the basis of criteria set out in Council Decision 97/413/EC (3), which it considers to be the appropriate legal base, but on application of Article 11(5) of Council Regulation 2371/2002/EC (4). The applicant therefore submits that the Commission not only lacked the competence to make the decision but it also infringed the principles of non-retroactivity, legal certainty, protection of legitimate expectations, the principles of non-discrimination and of equal treatment and the principle of proportionality. It states that the Commission breached its obligation to state reasons laid down in Article 253 EC as well as the applicant's right to be heard and its rights to property. The applicant further claims that the Commission misused its powers, acted mala fides and made inexcusable and manifest error in its decision. It also submits that the Commission acted in excess in the bounds of its discretion.

Furthermore, the applicant claims that the Commission, in adopting the contested decision, sought to defeat a related claim for damages made by the applicant in Case T-125/08 (5), pending before the Court, and was therefore not bona fide.

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(1)  OJ 2003 L 90, p. 48.

(2)  Case T-192/03, Atlantean Ltd. v Commission [2006] ECR II-42.

(3)  Council Decision of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation, OJ L 175, p. 27.

(4)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358, p. 59.

(5)  Case T-125/08, Atlantean Ltd. v Commission, OJ C 116, p. 28.

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22.11.2008

EN

Official Journal of the European Union

C 301/44

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Action brought on 4 September 2008 — EWRIA and Others v Commission

(Case T-369/08)

(2008/C 301/75)

Language of the case: English

Parties

Applicants: European Wire Rope Importers Association (EWRIA) (Hemer, Germany); Câbleries Namuroises SA (Namur, Belgium); Ropenhagen A/S (Vallensbæk Strand, Danemark); Eisen- und Stahlhandelsgesellschaft mbH (Kaarst, Germany); Heko Industrieerzeugnisse (Hemer, Germany); Interkabel Internationale Seil- und Kabel-Handels GmbH (Solms, Germany); Jose Casañ Colomar SA (Valencia, Spain); Denwire Ltd. (Dudley, United Kingdom) (represented by: T. Lieber, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Declare the action admissible;

—

Annul the decision of the Commission of 4 July 2008, in which the Commission rejects applicants' request for a partial interim review of the antidumping measures on steel wire ropes (SWR) to adjust the scope of the measures and exclude general purpose ropes (GPR) from the product scope of the measures;

—	Require the Commission to initiate a partial interim review of the antidumping measures imposed on imports of SWR to adjust the scope of the measures and exclude GPR from the scope of the measures;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicants seek annulment of the Commission decision of 4 July 2008 rejecting the applicants' request for partial interim review of the antidumping duty imposed on certain iron or steel ropes and cables originating in the People's Republic of China, India, South Africa, Ukraine and the Russian Federation (1) in view of exclusion of general purpose ropes (GPR) from the product scope of the measure. The Commission refused to initiate the interim measure review on the grounds of lack of evidence that the two product types under the measures, steel wire ropes and general purpose ropes, do not share the same basic physical, technical and chemical characteristics.

The applicants put forward three pleas in law in support of their claims.

First, the applicants claim that the failure of the Community institutions to initiate a partial interim review constitutes a breach of Article 11(3) and Article 21 of the basic regulation (2). They state that the change of circumstances justifying an interim review may also refer to the definition of the product concerned.

Second, the applicants submit that the failure of the Community institutions to initiate a partial interim review constitutes a breach of the applicants' legitimate expectations. They claim that the Commission itself had encouraged the applicants upon termination of expiry review concerning steel wire ropes originating in the People's Republic of China, India, South Africa and Ukraine to file a request for partial interim review to adjust the scope of the measures in question.

Finally, the applicants claim that by failing to initiate an interim review the Community institutions committed a manifest error of assessment and breached Article 1(4) of the basic regulation when they based their findings on too broad scope of products which led them to compare unlike products and thus arrive at invalid findings.

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(1)  Council Regulation (EC) No 1796/1999 of 12 August 1999 as amended by Council Regulation (EC) No 1858/2005 of 8 November 2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in the People's Republic of China, India, South Africa and Ukraine following an expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96 (OJ 2005 L 299, p. 1) and Council Regulation (EC) No 1601/2001 of 2 August 2001 as amended by Council Regulation (EC) No 1279/2007 of 30 October 2007 imposing a definitive anti-dumping duty on certain iron or steel ropes and cables originating in the Russian Federation, and repealing the anti-dumping measures on imports of certain iron or steel ropes and cables originating in Thailand and Turkey (OJ 2007 L 285, p. 1).

(2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

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22.11.2008

EN

Official Journal of the European Union

C 301/45

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Action brought on 5 September 2008 — Csepeli Áramtermelő v Commission

(Case T-370/08)

(2008/C 301/76)

Language of the case: English

Parties

Applicant: Csepeli Áramtermelő kft (Budapest, Hungary) (represented by: Á. Máttyus, K. Ferenczi, B. van de Walle de Ghelcke, T. Franchoo, and D. Fessenko, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the decision in so far as it identifies Csepel as a beneficiary of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Hungary to recover this alleged State aid, including interest, from Csepel; and

—	To order the Commission to pay the costs.

Pleas in law and main arguments

The applicant requests the annulment of Commission Decision C(2008) 2223 final, of 4 June 2008 (Case C-41/2005 — Hungarian stranded costs), in so far as it identifies the applicant as a beneficiary of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Hungary to recover the alleged State aid, including interest, from the applicant.

The applicant claims that the Commission failed to evidence and appropriately justify its conclusion that the power purchase agreement (‘PPA’) concluded between the applicant — owner of a power generation facility in Hungary ultimately acquired by Atel AG — and the Hungarian state-owned electricity wholesaler, Magyar Villamos Muvek Rt. (‘MVM’), constitutes incompatible State aid. In support of its claims, the applicant raises the following pleas in law:

In its first plea, the applicant submits that the Commission infringed Article 253 EC and Article 87(1) EC by failing to state reasons and by making a manifest error of assessment in finding that the applicant's PPA conferred an economic advantage to the applicant.

In its second plea, the applicant submits that the Commission committed a manifest error of assessment in concluding that the applicant's PPA distorts competition.

In its third plea, the applicant contends that the Commission infringed the principles of proportionality and equal treatment, in that the recovery obligation is unjustified in the specific circumstances of the case on the basis of general principles of Community law. In addition, the applicant claims that the Commission made a manifest error of assessment regarding the methodology that it applied in order to calculate the amounts to be recovered.

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22.11.2008

EN

Official Journal of the European Union

C 301/45

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Appeal brought on 8 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-5/07 Nijs v Court of Auditors

(Case T-371/08 P)

(2008/C 301/77)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

—	Declare the appeal admissible;

—	Declare the appeal well-founded;

—	Consequently, annul the order of 26 June 2008 in Case F-5/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

The applicant claims that the Civil Service Tribunal's order is vitiated by a manifest error in the assessment of procedural provisions inasmuch as it regards the action as inadmissible by reason of a failure to comply with the requirements of clarity, an infringement of the principle of the protection of legitimate expectations and an erroneous application of the presumption of legality to the defendant's contentions inasmuch as the order was made after a single exchange of written pleadings.

In addition, the applicant considers that the contested order is lacking in clarity, is unsupported by evidence, is vitiated by a manifest error in the consideration of the pleas in law raised in the application and does not consider certain matters which the Tribunal should have considered of its own motion.

The applicant also claims that the contested order should have taken account of the lack of a statement of reasons at the pre-litigation stage and that it was wrongly based on a failure to comply with time-limits, inasmuch as the Tribunal had not carried out a suficient investigation to reach that conclusion.

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22.11.2008

EN

Official Journal of the European Union

C 301/46

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Appeal brought on 10 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-108/07 Nijs v Court of Auditors

(Case T-375/08 P)

(2008/C 301/78)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

—	Declare the appeal admissible;

—	Declare the appeal well-founded;

—	Consequently, annul the order of 26 June 2008 in Case F-108/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those raised in Case T-371/08 P.

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22.11.2008

EN

Official Journal of the European Union

C 301/46

---

Appeal brought on 10 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-1/08 Nijs v Court of Auditors

(Case T-376/08 P)

(2008/C 301/79)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

—	Declare the appeal admissible;

—	Declare the appeal well-founded;

—	Consequently, annul the order of 26 June 2008 in Case F-1/08 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those raised in Case T-371/08 P.

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22.11.2008

EN

Official Journal of the European Union

C 301/47

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Action brought on 10 September 2008 — Advance Magazine Publishers v OHIM — Capela & Irmãos (VOGUE)

(Case T-382/08)

(2008/C 301/80)

Language in which the application was lodged: English

Parties

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

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

Other party to the proceedings before the Board of Appeal: J. Capela & Irmãos, Lda. (Porto, Portugal)

Form of order sought

—

Alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 328/2003-2 so as to hold that the appeal brought by the applicant before the Board of Appeal is well founded and, consequently, that the opposition is rejected and the Community trade mark concerned is admitted;

—	In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 328/2003-2; and

—	Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs, including the costs of appeal incurred before OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VOGUE’ for goods and services in classes 9, 14, 16, 25 and 41

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

Mark or sign cited: Portuguese trade mark registration No 143 183 of the word mark ‘VOGUE Portugal’ for goods in class 25; Portuguese business name No 32 046 ‘VOGUE-SAPATARIA’

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: (i) Infringement of Article 43(2) and (3) of Council Regulation No 40/94 and Rule 22 of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly considered that the evidence submitted by the other party to the proceedings before the Board of Appeal did constitute proof of genuine use of the earlier trade mark; (ii) Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal wrongly found that the goods in question are similar; (iii) Infringement of Articles 61(1) and 62(2) of Council Regulation No 40/94 insofar as the Board of Appeal wrongly based its ruling on the fact that the applicant failed to challenge the findings of the Opposition Division as to the proof of use or as to the similarity of the goods and services in question, as well as on the fact that before the Opposition Division the applicant implicitly considered that the proof of use was sufficient.

---

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

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22.11.2008

EN

Official Journal of the European Union

C 301/47

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Action brought on 11 September 2008 — New Europe v Commission

(Case T-383/08)

(2008/C 301/81)

Language of the case: English

Parties

Applicant: New Europe (Brussels, Belgium) (represented by: A.-M. Alamanou, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Annulment of the Commission decision in the form of a letter dated 2 July 2008 and received by the applicant on the same day, refusing to the latter access to the names of the companies and the individuals cited in the documents disclosed by the Commission; and

—	Order that the costs of, and occasioned by these proceedings be borne by the respondent.

Pleas in law and main arguments

By way of the present application, the applicant challenges the Commission decision notified to the latter by letter dated 2 July 2008 by which the Commission refused to disclose the names of the companies and of the individuals involved in the so-called ‘Eximo’ case which are cited in the documents disclosed to the applicant by the Commission in reply to its initial application.

The applicant seeks to annul the contested decision on the basis of the following grounds:

First, according to the applicant, the contested decision is vitiated by a manifest error of law in so far as the Commission wrongly interpreted and relied on the exceptions provided in Article 4(1)(b), 4(2) first indent of Regulation (EC) No 1049/2001 (1) without carrying out an assessment of fact or setting out the reasons for its refusal. In addition, the applicant submits that the Commission made an error of appreciation of the facts in finding that the commercial interests of the companies concerned and the privacy and the integrity of the individuals involved would have been seriously undermined should their names be disclosed. Furthermore, the applicant contends that, by opting for an extensive interpretation of the term ‘protection of commercial interests’ and ‘protection of privacy and integrity of the individual’, the Commission violated the principle of the widest possible access to documents as set out in Article 1(a) of Regulation (EC) No 1049/2001.

Second, the applicant submits that the contested decision infringed Article 4(4) of Regulation (EC) No 1049/2001 in so far as the Commission failed to grant the applicant full access to a document which was already publicly available.

Third, the applicant submits that the Commission violated the obligation to state reasons in accordance with Article 253 EC, by failing to inform the applicant on the grounds on which it based its decision and by simply referring to the exceptions set out in Article 4(4) of Regulation (EC) No 1049/2001.

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(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 2001 L 145, p. 43).

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22.11.2008

EN

Official Journal of the European Union

C 301/48

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Action brought on 11 September 2008 — Elliniki Nafpigokataskevastiki and Others v Commission

(Case T-384/08)

(2008/C 301/82)

Language of the case: English

Parties

Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou (Skaramangas,Greece) Howaldtswerke-Deutsche Werft GmbH (Kiel, Germany) and ThyssenKrupp Marine Systems AG (Hamburg, Germany) (represented by: U. Soltész, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	Order the annulment of Article 16 of the decision of the Commission of 2 July 2008 on the Measures No C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of Hellenic Shipyards; and

—	Order the Commission to pay the applicant's costs of the present proceedings.

Pleas in law and main arguments

By means of their application the applicants seek partial annulment of Commission Decision C(2008) 3118 final, of 2 July 2008, concerning sixteen measures implemented by the Greek State in favour of Hellenic Shipyards SA (‘HSY’) and, in particular, annulment of Article 16 of the said decision according to which the Commission decided that the Indemnification Guarantee granted by HSY's previous owner, Hellenic Bank of Industrial Development (‘ETVA’), to the consortium (1) that acquired HSY through a share purchase agreement (Howaldtswerke-Deutsche Werft (2) and Ferrostaal), in the event of state aid recovery from HSY, constitutes illegal state aid and should be stopped immediately.

The applicants claim that the Commission incorrectly considered that the Indemnification Guarantee in the privatisation agreement was given at a time when ETVA was under state control. According to the applicants, the Indemnification Guarantee was only validly agreed after ETVA's privatisation and therefore constituted a measure negotiated between private parties, not imputable to the Greek State and therefore cannot be regarded as state aid.

Moreover, the applicants submit that the Commission's allegation that the two separate clauses in the addendum to the purchase sharing agreement constituted one overall mechanism through which HSY would benefit is erroneous. In fact, the applicants submit that the two guarantees were granted independently of each other. In addition, the applicants contend that the Commission wrongly considered that HSY benefited from the Indemnification Guarantee since, having regard to the facts of the case, only Piraeus Bank could be considered to have benefited form it.

The applicants argue that the Commission was wrong in considering that an economic advantage was conferred on HSY by virtue of the Indemnification Guarantee which (i) is a standard term under private law, (ii) was given after a dully carried out assessment and (iii) conforms to the conduct of a private vendor.

Further, it is submitted that the Commission misapplied Article 88(2) EC and Article 14(1) of Regulation (EC) No 659/1999 in targeting Elliniki Nafpigokataskevastiki, which was not the beneficiary of the aid, by ordering it to stop the Indemnification Guarantee.

Also, the applicants claim that the Commission's argument alleging circumvention of the effet utile of recovery wrongly relies on the assumption that circumvention occurs by the simple granting of the Indemnification Guarantee.

Finally, the applicants submit that the Commission misapplied Article 296 EC in that it does not allow HSY to carry on a certain degree of civil activities which are of an ancillary nature in order to sustain the operation of the whole shipyard.

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(1)  This consortium founded Elliniki Nafpigokataskevastiki in order to harbour the holding in HSY.

(2)  HDW is wholy owned by ThyssenKrupp Marine Systems which also acquired Ferrostaaal's shares in Elliniki Nafpigokataskevastiki in 2005.

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22.11.2008

EN

Official Journal of the European Union

C 301/49

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Action brought on 1 September 2008 — Evropaïki Dynamiki v Office for Official Publications of the European Communities

(Case T-387/08)

(2008/C 301/83)

Language of the case: English

Parties

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

Defendant: Office for Official Publications of the European Communities

Form of order sought

—

Annul the decision of the Office for Official Publications of the European Communities (OPOCE) to reject the bid of the applicant, filed in response to open Call for Tender AO 10185 for ‘Computing Services — maintenance of the SEI-BUD/AMD/CR systems and related services’ (OJ 2008/S 43-058884) communicated to the applicant by letter dated 20 June 2008 and to award the contract to the successful contractor;

—	Order OPOCE to pay the applicant's damages suffered on account of the tendering procedure in question in the amount of EUR 1 444 930;

—	Order OPOCE to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant's decision to reject its bid submitted in response to a call for an open tender AO 10185 regarding the ‘Computing Services — maintenance of the SEI-BUD/AMD/CR systems and related services’ and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages on account of the tendering procedure.

In support of its claims the applicant argues that by awarding the aforementioned tender to another bidder the defendant failed to comply with its obligations foreseen in the financial regulation (1), its implementing rules and Directive 2004/18/EC (2) as well as with the principles of transparency, equal treatment and proportionality.

The applicant moreover submits that the contracting authority infringed its obligation, foreseen in the above mentioned applicable rules, to sufficiently state reasons for its decision. Furthermore, the applicant alleges that the contracting authority used the criteria that were not expressively included in the call for tender, mixed evaluation with award criteria, therefore infringing the tender specifications, and committed several manifest errors of assessment which resulted in the rejection of the applicant's bid.

The applicant requests, hence, that the decision to reject its bid and to award the contract to the successful tenderer be annulled and that the defendant is ordered to pay, in addition to the applicant's legal expenses related to the proceedings, the damages suffered by the applicant on account of the tendering procedure.

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

(2)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

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22.11.2008

EN

Official Journal of the European Union

C 301/50

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Action brought on 16 September 2008 — Lemans v OHIM — Turner (ICON)

(Case T-389/08)

(2008/C 301/84)

Language in which the application was lodged: English

Parties

Applicant: Lemans Corporation (Janesville, United States) (represented by: M. Cover, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Stephen Turner (Luddington, United Kingdom)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 July 2008 in case R 778/2007-2;

—	A declaration that the opposition be dismissed and that Community trade mark concerned may proceed to registration; and

—	Order the other party to the proceedings before the Board of Appeal to pay the costs, including the appeals before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ICON’ for goods and services in classes 9, 18 and 25 — application No 2 197 440

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

Mark or sign cited: The national word mark ‘IKON’ for goods in class 9 — UK trade mark registration No 2 243 676

Decision of the Opposition Division: Rejection of the application in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its finding that the other party to the proceedings before it had locus standi to file the opposition.

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22.11.2008

EN

Official Journal of the European Union

C 301/50

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Action brought on 19 September 2008 — AEPI v Commission

(Case T-392/08)

(2008/C 301/85)

Language of the case: Greek

Parties

Applicant: Elleniki Etairia pros Prostasia tis Pnevmatikis Idioktisias AE (Greek Society for the Protection of Intellectual Property) (Athens, Greece) (represented by: P. Xsanthopoulos, T. Asproyerakis-Grivas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

—	allow the present application admissible in its entirety;

—	annul in its entirety the contested decision of the Commission of the European Communities of 16 July 2008 in Case COMP/C2/38.698-CISAC, No E (3435) final, relating to a procedure under Article 81 EC and Article 53 EEA; and

—	order the Commission to pay all the costs and the fees of the applicant's lawyers.

Pleas in law and main arguments

By this application the applicant seeks the annulment of the decision of the Commission of the European Communities of 16 July 2008 in Case COMP/C2/38.698-CISAC, No E (3435) final, in so far as the Commission decided that the applicant was infringing Article 81 EC and Article 53 EEA by using, in representation agreements with other societies, membership restrictions contained in Article 11(2) of the model contract of the International Confederation of Societies of Authors and Composers (‘CISAC model contract’) or by the de facto application of restrictions on admitting members and coordination of territorial delineation in a way which limits a licence to the domestic territory of each collecting society.

The applicant puts forward the following grounds for annulment:

First, the applicant claims that the contested decision is based on a mistaken assessment of the facts and of the general de facto situation, the evidence and the subjective elements of the infringement.

Secondly, the applicant claims that its right to a prior hearing was infringed and thirdly, that Article 81 EC and Article 53 EEA were wrongly applied by reason of the fact that the applicant was condemned for a non-existent infringement. In particular, it submits that with the signature of territorial clauses there was no infringement of competition but that those clauses are necessary to ensure to those entitled proper management of their rights in the country in which each contracting society operates. In addition, the applicant maintains that the Court of Justice of the European Communities has accepted that clauses of territorial exclusivity in reciprocal representation agreements do not infringe competition.

Fourthly, the applicant claims that the contested decision does not take account of the fact that in Community law intellectual property and intellectual and artistic works are not the same as other goods and services and wrongly subjects the facts to the legal rule applicable to the latter.

Fifthly, the applicant maintains that the Commission has infringed Article 151 EC, introducing the principle of the cultural exception, according to which the Commission must, in any action, take cultural aspects into account in order to respect and to promote the diversity of the cultures of the Community.

Sixthly, the applicant submits that the fact that the question of fault did not enter into the examination of the alleged infringement of Article 81 EC constitutes a misapplication of the legal rule and a clear failure to give reasons for the contested decision.

Seventhly, the applicant considers that the contested decision infringes the principle of proportionality, since European intellectual property societies are not of the same size, as well as the principle of impartiality, because it was adopted following a preliminary procedure that was not fair. Furthermore, the applicant maintains that the existence of serious contradictions renders the decision defective and irrational. Moreover, the contested decision, in the misleading guise, according to the applicant, of facilitating the obtaining of licences to use music via cable, satellite or on the internet, in reality is aimed at the mutual annihilation of intellectual property societies, by distorting healthy competition, laying down unequal market terms and creating inevitable clashes between those societies. Lastly, the contested decision, directly misconstrues, in the applicant's view, Directive 93/83/EEC (1) and infringes the international Berne Convention for the protection of literary and artistic works, to which the European Union has acceded.

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(1)  Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).

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22.11.2008

EN

Official Journal of the European Union

C 301/51

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Action brought on 18 September 2008 — Clearwire Corporation v OHIM (CLEARWIFI)

(Case T-399/08)

(2008/C 301/86)

Language of the case: English

Parties

Applicant: Clearwire Corporation (Kirkland, United States) (represented by G. Konrad, 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 (Trade Marks and Designs) of 30 June 2008 in case R 706/2008-1; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark CLEARWIFI for services in class 38 — international registration No W00 934 594

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the grounds for refusal put forward by the Board of Appeal do not preclude registration.

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22.11.2008

EN

Official Journal of the European Union

C 301/51

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Action brought on 22 September 2008 — Enercon v OHIM — BP (ENERCON)

(Case T-400/08)

(2008/C 301/87)

Language in which the application was lodged: English

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by: R. Böhm, lawyer)

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

Other party to the proceedings before the Board of Appeal: BP plc (London, United Kingdom)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2008 in case R 957/2006-4, insofar as it dismisses the appeal lodged by the applicant against the decision of the Opposition Division of 26 May 2006 ruling on opposition number B 760 605; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ENERCON’ for goods in classes 1, 2 and 4

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

Mark or sign cited: Community trade mark registration No 137 828 of the word mark ‘ENERGOL’ for goods in classes 1 and 4

Decision of the Opposition Division: Upheld the opposition except for the goods that were found dissimilar

Decision of the Board of Appeal: Rejected the appeal for the goods that were found dissimilar and dismissed the appeal for the remainder

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the conflicting trade marks.

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22.11.2008

EN

Official Journal of the European Union

C 301/52

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Action brought on 20 September 2008 — Fluorsid and Minmet v Commission

(Case T-404/08)

(2008/C 301/88)

Language of the case: Italian

Parties

Applicants: Fluorsid SpA (Assemini, Italy) and Minmet Co. (Lausanne, Switzerland) (represented by: L. Vasques and F. Perego, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—

annulment of the decision of the Commission of the European Communities adopted on 25 June 2008 C(2008) 3043 concerning proceedings pursuant to Article 81 of the EC Treaty and Article 53 of the EAA Agreement, Case COMP/39.180 — Aluminium fluoride, notified to Fluorsid and Minmet on 11 July 2008 and 9 July 2008 respectively, or, in the alternative, for reduction of the fine imposed on Minmet and Fluorsid under the decision as provided for in Article 4482) of the Rules of Procedure of the Court.

Pleas in law and main arguments

By its present action, the companies Fluorsid and Minmet wish to challenge the decision by which the European Commission found an infringement of Article 81(1) of the Treaty and Article 53(1) of the EAA Agreement and therefore jointly and severally fined Fluorsid and Minmet for an alleged serious infringement of Article 81 of the Treaty for the sum of EUR 1 600 000 (one million six hundred thousand).

In support of their claims, the applicants plead:

—

Absence of proof of the potential harm in the EAA and infringement of the provisions of Article 81 of the Treaty. In that respect it is stated that it is impossible to argue that four small undertakings, of which one has not even had sales in 2000 in the EAA, can, even in the abstract, impose prices on large aluminium producers (also called ‘smelters’) in a market in which it is supply and not demand which determines prices.

—

Infringement of the duty to state reasons regarding the proof of the unlawful conduct in breach of Article 253 of the Treaty and Article 2 of Regulation (EC) No 1/2003, for changing in a surreptitious manner the contested infringement in order to lessen the Commission's burden of proof. It claims on that point that the Commission was able to acquire evidence of an exchange of information between competitors, but not of an agreement with an object to restrict competition. That change of the description of the unlawful conduct favoured the Commission, which was then able to refer, in the applicants' view incorrectly, the per se rule laid down for hard core restrictions, therefore lightening its burden of proof and enabling it to disregard the fact that the alleged unlawful conduct had no effect on the market.

—

Infringement of Article 27 of Regulation No 1/2003 and of the rights of the defence, as well as of Articles 253 and 173 of the Treaty in so far as the Commission does not cite leniency in respect of Floursid under the Statement of Objections (SO), carried out investigations and acquired documentation for the case-file after the SO, and in the final decision challenged unlawful conduct which was different from that challenged in the SO (uninterrupted infringement and infringement lasting 6 months).

The applicants also plead that:

—	To substantiate Minmet's involvement, documents against the applicants which were not cited in the SO were referred to in the final decision.

—

Although the Commission disregarded leniency in respect of Fluorsid in the SO in breach of the rights of the defence, in the second instance it inserted in the case-file both leniency in respect of the applicants and an addendum to the leniency issue lodged after the SO. In that manner the Commission (i) created uncertainty regarding leniency, detrimental to the time frame and substance of the applicants' rights of defence in breach of the rules set out in point 29 of the Commission Notice on immunity from fines and (ii) continued to carry out investigations after the SO, adding documentation to the file, thereby infringing fundamental procedural rules detrimental to all the parties to the proceedings.

—	The Commission defined the geographic market of aluminium fluoride in an inconsistent manner without stating satisfactory reasons and quantified the value of the market completely inconsistently.

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22.11.2008

EN

Official Journal of the European Union

C 301/53

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Action brought on 25 September 2008 — S.F. Turistico Immobiliare v Council and Commission

(Case T-408/08)

(2008/C 301/89)

Language of the case: Italian

Parties

Applicant: S.F. Turistico Immobiliare Srl (Orosei, Italy) (represented by: L. Marcialis, lawyer)

Defendant: Council of the European Union and Commission of the European Communities

Forms of order sought

Principal forms of order sought:

—	Declare null and void the decision of the Commission of the European Communities C(2008) 2997 of 2 July 2008 on a State aid scheme: ‘Misuse of aid measure No N 272/98, Regional Act No 9 of 1998’;

—	Order the Commission to pay the costs of the proceedings, including those incurred by the applicant.

Alternative form of order sought:

—

Annul in part the contested decision, in so far as it declares the entire aid scheme incompatible with the common market, ‘unless the recipient of the aid submitted an application for aid under the scheme before starting work on an initial investment project’, and orders the Republic of Italy to recover the relevant amounts, without excepting the aid in so far as it provides an incentive to keep the resulting costs — borne by the recipient before the aid application was submitted — within the limits provided for under the de minimis aid provisions.

Further alternative form of order sought:

—

Declare unlawful point 4.2 of the Council Guidelines on national regional aid (98 C 74/06), according to which ‘[i]n addition, aid schemes must lay down that an application for aid must be submitted before work is started on the projects’, in so far as it excludes from eligibility all aid intended in favour of recipients, without excepting that part of the aid relating to investments, made after submission of the application, which are functionally or structurally autonomous.

—

Annul in part the contested decision, in so far as it orders full recovery by the Republic of Italy of the amounts previously disbursed, without excepting the aid in so far as it provides an incentive for costs to be borne by the recipient after submission of the application for aid and relating to portions which are functionally or structurally autonomous in relation to the project undertaken.

Pleas in law and main arguments

The contested decision in the present case is the same as that at issue in Case T-394/08 Regione Sardegna v Commission.

The pleas in law and principal arguments are similar to those put forward in Case T-394/08.

The applicant pleads in particular the unlawfulness, within the meaning of Article 241 EC, of point 4.2 of the Council Guidelines on national regional aid (98 C 74/06), in so far as it is wholly counter to the rationale underlying the Community aid policies, especially in a case characterised by such special features, to infer from the completion of a small part (roughly 20 %) of the planned work that the rest of the work is wholly ineligible for aid, even though that work had duly been commenced during a time-period subsequent to that established by the guidelines in question.

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22.11.2008

EN

Official Journal of the European Union

C 301/54

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Action brought on 24 September 2008 — El Fatmi v Council

(Case T-409/08)

(2008/C 301/90)

Language of the case: Dutch

Parties

Applicant: El Fatmi (Vught, Netherlands) (represented by: G. Pulles)

Defendant: Council of the European Union

Form of order sought

—	Declare Regulation (EC) No 2580/2001 to be inapplicable and/or declare Council Decision 2008/583/EC of 15 July 2008 to be void, in so far as they apply to the applicant;

—	order the Council to pay the costs.

Pleas in law and main arguments

The applicant asks the Court to declare Regulation (EC) No 2580/2001 (1) to be inapplicable to him and Council Decision 2008/583/EC (2) to be void, in so far as it applies to the applicant.

First, the applicant submits that the Council acted contrary to the requirements of Article 5 EC. The Council had no power, since there is no connection to third countries or to the common market.

Second, Articles 60, 301 and 308 EC do not confer any power to adopt the contested regulation.

Third, the Council acted contrary to Article 1(3) of Common Position 2001/931 of 27 December 2001 (3) and infringed essential procedural requirements and principles of Community law, including the duty to state reasons. According to the applicant, the national decisions on which the Council also relies are not decisions adopted by a competent authority within the meaning of Article 1(4) of the Common Position or are decisions that have been annulled on appeal to the national courts.

Fourth, the Council has infringed the applicant's fundamental rights and in particular the right to respect for private and family life, the right to effective judicial protection and the right to property.

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(1)  Council Regulation (EC) No 2580/2001of 27 December 2001on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

(2)  Council Decision of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21).

(3)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

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22.11.2008

EN

Official Journal of the European Union

C 301/54

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Action brought on 30 September 2008 — Artisjus Magyar Szerzői Jogvédő Iroda Egyesület v Commission

(Case T-411/08)

(2008/C 301/91)

Language of the case: English

Parties

Applicant: Artisjus Magyar Szerzői Jogvédő Iroda Egyesület (Budapest, Hungary) (represented by: Z. Hegymegi-Barakonyi and P. Vörös, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Annul Articles 3 and 4(2) of the decision in so far as they relate to the applicant as well as Article 4(3) of the decision in so far as it refers to Article 3;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks partial annulment of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) determining that the EEA CISAC (1) members engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA, by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society.

The applicant seeks the annulment of Articles 3 and 4(2) and (3) of the contested decision which relate to three specific forms of exploitation (internet, satellite transmission and cable retransmission) in so far as they hold the applicant liable for an Article 81 EC infringement by coordinating with other CISAC members the territorial delineation clauses of reciprocal representation agreements in a way which limited a licence to the domestic territory of each collective rights management societies (‘CMRS’).

The applicant challenges the contested decision on the basis of four grounds, namely, lack of competence, infringement of an essential procedural requirement, the infringement of the EC Treaty and the misuse of powers by the Commission.

In support of its application, the applicant submits the following pleas in law:

First, according to the applicant, the Commission violated the applicant's rights of defence by adopting the contested decision and fundamentally departing from its position in the Statement of Objections.

Second, the applicant claims that the decision infringes Article 253 EC, as it lacks proper reasoning and fails to identify the starting point of the alleged concerted practice.

Third, the applicant contends that the decision violates Article 81 EC and Article 2 of Regulation (EC) No 1/2003 (2) as the Commission did not produce sufficient evidence to establish the existence of a concerted practice to the requisite legal standard and consequently failed to meet the burden of proof.

Fourth, it is submitted that the decision violates Article 86(2) EC, as the applicant is an undertaking entrusted with the operation of services of general economic interest and the application of EC competition law as set out in the contested decision obstructs the performance of the particular tasks assigned to it.

Moreover, according to the applicant, the Commission misused its powers under Article 81 EC by evading a procedure specifically prescribed by the EC Treaty for dealing with the circumstances of the case. Further, the applicant puts forward that the decision violates Article 151(4) EC as it does not respect cultural diversity. Finally, it is submitted that the decision violates the principle of legal certainty in so far as it requires a course of conduct which the Commission failed to define.

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(1)  International Confederation of Societies of Authors and Composers (‘CISAC’).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1).

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22.11.2008

EN

Official Journal of the European Union

C 301/55

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Action brought on 25 September 2008 — Trubion Pharmaceuticals v OHIM — Merck (TRUBION)

(Case T-412/08)

(2008/C 301/92)

Language in which the application was lodged: English

Parties

Applicant: Trubion Pharmaceuticals Inc. (Seattle, United States) (represented by: C. Hertz-Eichenrode, lawyer)

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

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

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 July 2008 in case R 1605/2007-2; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TRUBION’ for goods and services in classes 5 and 42

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

Mark or sign cited: Community trade mark registration No 72 884 of the word mark ‘BION’ registered for various goods; Community trade mark registration No 3 282 936 of the figurative mark ‘TriBion Harmonis’ registered for various goods

Decision of the Opposition Division: Upheld the opposition for the goods in class 5 and rejected it for the remaining services in class 42

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 as the Board of Appeal (i) failed to asses the similarity of the trade marks by taking into account the overall impression of the earlier trade mark, and (ii) failed to take into account the interdependence of the relevant factors, in particular the low similarity of the goods when assessing the likelihood of confusion.

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