17.4.2010

Official Journal of the European Union

C 100/2

Judgment of the Court (Second Chamber) of 25 February 2010 (reference for a preliminary ruling from the Commissione Tributaria Provinciale di Roma, Italy) — Pontina Ambiente Srl v Regione Lazio

(Case C-172/08) (1)

(Environment - Directive 1999/31/EC - Article 10 - Special levy on the disposal of solid waste in landfills - Operator of a landfill subject to that levy - Operating costs of a landfill - Directive 2000/35/EC - Default interest)

2010/C 100/02

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Roma

Parties to the main proceedings

Applicant: Pontina Ambiente Srl

Defendant: Regione Lazio

Re:

Interpretation of Article 10 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1), Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35) and Articles 12 EC, 14 EC, 43 EC and 46 EC — National legislation imposing a special tax on the disposal of solid waste in landfills and obliging the operator of the waste disposal site to make advance payment of that tax, which is determined according to the amount of waste disposed of and for which the person responsible for the disposal is liable

Operative part of the judgment

Article 10 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, as amended by Regulation No 1882/2003 of the European Parliament and of the Council of 29 September 2003 must be interpreted as meaning that it does not preclude a national provision, such as that at issue in the main proceedings, which makes the operator of a landfill site subject to a levy to be reimbursed by the local authority depositing the waste and which provides for financial penalties to be imposed on that operator for late payment of the levy, on condition that those rules are accompanied by measures to ensure that the levy is actually reimbursed within a short time and that all the costs of recovery, and in particular, the costs resulting from late payment of amounts which that authority owes to the site operator on that account, including costs incurred in order to avoid any financial penalty which might be imposed on the site operator, are passed on in the price to be paid by the authority to that operator. It is for the national court to ascertain whether those conditions have been satisfied;

Articles 1, 2(1) and 3 of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions must be interpreted as meaning the sums owed to the operator of a landfill site by a local authority depositing waste in the landfill, such as the sums due by way of reimbursement of a levy, come within the scope of that Directive and that the Member States must ensure, in accordance with Article 3 thereof, that, in the case of late payment, the landfill operator may charge the local authority interest on those sums for which the local authority is liable.

(1) OJ C 183, 19.7.2008.

17.4.2010

Official Journal of the European Union

C 100/3

Judgment of the Court (Grand Chamber) of 23 February 2010 (reference for a preliminary ruling from the Court of Appeal of England and Wales, United Kingdom) — London Borough of Harrow v Nimco Hassan Ibrahim, Secretary of State for the Home Department

(Case C-310/08) (1)

(Freedom of movement for persons - Right of residence of a national of a non-member country who is the spouse of a national of a Member State, and of their children who are themselves nationals of a Member State - National of a Member State ceasing to work and leaving the host Member State - Enrolment of the children at a school - No means of subsistence - Regulation (EEC) No 1612/68 - Article 12 - Directive 2004/38)

2010/C 100/03

Language of the case: English

Referring court

Court of Appeal of England and Wales

Parties to the main proceedings

Applicant: London Borough of Harrow

Defendants: Nimco Hassan Ibrahim, Secretary of State for the Home Department

Re:

Reference for a preliminary ruling — Court of Appeal of England and Wales — Interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) and of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p 475) — Wife who is a national of a non-member country and her children, themselves nationals of a Member State, who have joined her husband, a national of that Member State, in the United Kingdom where he was employed — Right of residence of the wife and children following the husband’s loss of status as an employed person and his departure from the United Kingdom

Operative part of the judgment

In circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

(1) OJ C 247, 27.9.2008.

17.4.2010

Official Journal of the European Union

C 100/4

Judgment of the Court (Fourth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Car Trim GmbH v KeySafety Systems Srl

(Case C-381/08) (1)

(Jurisdiction in civil and commercial matters - Regulation (EC) No 44/2001 - Article 5(1)(b) - Jurisdiction in matters relating to a contract - Determination of the place of performance of the obligation - Criteria for distinguishing between ‘sale of goods’ and ‘provision of services’)

2010/C 100/05

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Car Trim GmbH

Defendant: KeySafety Systems Srl

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(1)(b) 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) — Contract for the supply of goods to be manufactured also including instructions from 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 contract — Criteria for a distinction between sale of goods and supply of services — Determination of the place of performance of the obligation in the case of a sale involving the carriage of goods.

Operative part of the judgment

Article 5(1)(b) 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 must be interpreted as meaning that where the purpose of contracts is the supply of goods to be manufactured or produced and, even though the purchaser has specified certain requirements with regard to the provision, fabrication and delivery of the components to be produced, the purchaser has not supplied the materials and the supplier is responsible for the quality of the goods and their compliance with the contract, those contracts must be classified as a ‘sale of goods’ within the meaning of the first indent of Article 5(1)(b) of that regulation.

The first indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction.

(1) OJ C 301, 22.11.2008.

17.4.2010

Official Journal of the European Union

C 100/4

Judgment of the Court (Fourth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Brita GmbH v Hauptzollamt Hamburg-Hafen

(Case C-386/08) (1)

(EC-Israel Association Agreement - Territorial scope - EC-PLO Association Agreement - Refusal to apply to products originating in the West Bank the preferential tariff arrangements granted for products originating in Israel - Doubts as to the origin of the products - Approved exporter - Subsequent verification of invoice declarations by the customs authorities of the importing State - Vienna Convention on the Law of Treaties - Principle of the relative effect of treaties)

2010/C 100/06

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Brita GmbH

Defendant: Hauptzollamt Hamburg-Hafen

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed at Brussels on 20 November 1995 (OJ 2000 L 147, p. 3) and in particular Articles 32 and 33 of Protocol 4 of that agreement, and of the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed at Brussels on 24 February 1997 (OJ 1997 L 187, p. 3) — Refusal to apply the preferential tariff regime granted to goods originating in Israel to goods originating in an Israeli settlement in the West Bank — Power of the authorities of the importing State to verify subsequently the proof-of-origin certificates in the absence of doubts concerning the origin of the goods in question other than those resulting from a divergence of opinion between the parties to the EEC-Israel Association Agreement as to the interpretation of the expression ‘territory of the State of Israel’ and in the absence of previous resort, for the purposes of the interpretation of that expression, to the dispute-settlement procedure provided for under Article 33 of Protocol 4 of that agreement

Operative part of the judgment

The customs authorities of the importing Member State may refuse to grant the preferential treatment provided for under the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995, where the goods concerned originate in the West Bank. Furthermore, the customs authorities of the importing Member State may not make an elective determination, leaving open the questions of which of the agreements to be taken into account — namely, the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, and the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 — applies in the circumstances of the case and of whether proof of origin falls to be issued by the Israeli authorities or by the Palestinian authorities.

For the purposes of the procedure laid down in Article 32 of Protocol No 4 appended to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, the customs authorities of the importing State are not bound by the proof of origin submitted or by the reply given by the customs authorities of the exporting State where that reply does not contain sufficient information, for the purposes of Article 32(6) of that protocol, to enable the real origin of the products to be determined. Furthermore, the customs authorities of the importing State are not obliged to refer to the Customs Cooperation Committee set up under Article 39 of that protocol a dispute concerning the territorial scope of that agreement.

(1) OJ C 285, 08.11.2008.

17.4.2010

Official Journal of the European Union

C 100/5

Judgment of the Court (Second Chamber) of 25 February 2010 — Lancôme parfums et beauté & Cie SNC v Office for Harmonisation in the Internal Market (Trade Marks and Designs), CMS Hasche Sigle

(Case C-408/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 55(1)(a) and 7(1)(c) - Interest in bringing an application for a declaration of invalidity of a trade mark based on an absolute ground for invalidity - Law firm - Word sign ‘COLOR EDITION’ - Descriptive character of a word mark composed of descriptive elements)

2010/C 100/07

Language of the case: French

Parties

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

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral), CMS Hasche Sigle

Re:

Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS Hasche Sigle in which the Court of First Instance dismissed the action brought by the appellant against the decision of the Second Board of Appeal of OHIM of 26 February 2007 declaring invalid the registration of the trade mark COLOR EDITION in respect of cosmetic and make-up goods — Infringement of Articles 7(1)(c) and 55(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Legal standing to bring an application for a declaration of a trade mark’s invalidity — Law firm — No private economic interest to apply for a declaration of the invalidity of a cosmetics trade mark — Noticeable difference between the association created by the terms suggested for the purpose of a trade mark’s registration and the everyday language used by the target public to describe the goods and services at issue or their essential characteristics

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Lancôme parfums et beauté & Cie SNC to pay the costs.

(1) OJ C 6, 10.1.2009.

17.4.2010

Official Journal of the European Union

C 100/6

Judgment of the Court (Grand Chamber) of 23 February 2010 (reference for a preliminary ruling from the Court of Appeal of England and Wales, United Kingdom) — Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department

(Case C-480/08) (1)

(Freedom of movement for persons - Right of residence - National of a Member State who worked in another Member State and remained there after ceasing to work - Child in vocational training in the host Member State - No means of subsistence - Regulation (EEC) No 1612/68 - Article 12 - Directive 2004/38/EC)

2010/C 100/08

Language of the case: English

Referring court

Court of Appeal of England and Wales

Parties to the main proceedings

Applicant: Maria Teixeira

Defendants: London Borough of Lambeth, Secretary of State for the Home Department

Re:

Reference for a preliminary ruling — Court of Appeal of England and Wales — Interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) and of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475) — Right of residence in the United Kingdom of a Union citizen no longer having the status of a worker and no longer able to establish a right of residence in accordance with the provisions on the freedom of movement of workers — Right for the child of such a citizen to remain in the United Kingdom in order to complete a vocational training course — Right of the mother to remain there as carer with the child

Operative part of the judgment

A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.

The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.

The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

(1) OJ C 32, 7.2.2009.

17.4.2010

Official Journal of the European Union

C 100/7

Judgment of the Court (Second Chamber) of 25 February 2010 (reference for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — Müller Fleisch GmbH v Land Baden-Württemberg

(Case C-562/08) (1)

(System for monitoring bovine spongiform encephalopathy - Regulation (EC) No 999/2001 - Bovine animals over 30 months of age - Slaughter under normal conditions - Meat intended for human consumption - Mandatory screening test - National rules - Obligation to screen - Extension - Bovine animals over 24 months of age)

2010/C 100/09

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Müller Fleisch GmbH

Defendant: Land Baden-Württemberg

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 6(1) of, in conjunction with Annex III, Chapter A, Part I to, Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2001 L 147, p. 1), as amended by Commission Regulation (EC) No 1248/2001 of 22 June 2001 (OJ 2001 L 173, p. 12) — Requirement to screen for BSE all bovine animals over 30 months of age subject to normal slaughter for human consumption — National legislation extending the obligation to screen to all bovine animals over 24 months of age

Operative part of the judgment

Article 6(1) of Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies and Annex III, Chapter A, Part I to that regulation, as amended by Commission Regulation (EC) No 1248/2001 of 22 June 2001, do not preclude national rules under which all bovine animals over 24 months of age must be screened for bovine spongiform encephalopathy.

(1) OJ C 69, 21.3.2009.

17.4.2010

Official Journal of the European Union

C 100/7

Judgment of the Court (Fifth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Fővárosi Bíróság (Republic of Hungary)) — Sió-Eckes kft. v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-25/09) (1)

(Common agricultural policy - Regulation (EC) No 2201/96 - Common organisation of the markets in processed fruit and vegetable products - Regulation (EC) No 1535/2003 - Aid scheme for products processed from fruit and vegetables - Processed products - Peaches in syrup and/or in natural fruit juice - Finished products)

2010/C 100/10

Language of the case: Hungarian

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Applicant: Sió-Eckes kft.

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Re:

Reference for a preliminary ruling — Fővárosi Bíróság (Hungary) — Interpretation of Article 2(1) of Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (OJ 1996 L 297, p.29), of Article 2(1) of Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14) and Article 3 of Commission Regulation (EEC) No 2320/89 of 28 July 1989 on minimum quality requirements for peaches in syrup and peaches in natural fruit juice for the application of the production aid scheme (OJ 1989 L 220, p. 54) — Peach pulp produced in the context of the aid scheme for products processed from fruit and vegetables — Applicability of that aid scheme to peach pulp presented in a way not provided for under Regulation (EEC) No 2320/89, and to semi-finished products resulting from the separate phases of peach processing and intended for subsequent processing

Operative part of the judgment

Article 2(1) of Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products, as amended by Commission Regulation (EC) No 386/2004 of 1 March 2004, must be interpreted as meaning that a product which is covered by one of the CN codes listed in Annex I to that regulation, as amended, including CN code 2008 70 92, and which corresponds to the definition ‘peaches in syrup and/or in natural fruit juice’, within the meaning of that regulation, read in conjunction with Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables, as amended by Regulation No 386/2004, and with Commission Regulation (EEC) No 2320/89 of 28 July 1989 laying down minimum quality requirements for peaches in syrup and/or in natural fruit juice under the production aid scheme, as amended by Commission Regulation (EC) No 996/2001 of 22 May 2001, qualifies for the aid scheme referred to in that provision.

The product obtained at the end of each different stage of processing of peaches may be regarded as being a finished product for the purposes of Regulations Nos 2201/96 and 1535/2003, as amended, provided that it has the characteristics set out in Article 2(1) of Regulation No 1535/2003, as amended.

(1) OJ C 82, 4.4.2009.

17.4.2010

Official Journal of the European Union

C 100/9

Judgment of the Court (Eighth Chamber) of 25 February 2010 (Reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Lahti Energia Oy

(Case C-209/09) (1)

(Directive 2000/76/EC - Incineration of waste - Incineration plant - Co-incineration plant - Complex comprising a gas plant and a power plant - Incineration in the power plant of non-purified gas produced from the thermal treatment of waste in the gas plant)

2010/C 100/12

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Party to the main proceedings

Lahti Energia Oy

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 3 of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (OJ 2000 L 332, p. 91) — Complex consisting of a plant producing gas from waste and a power plant whose steam boiler burns the gas produced from the thermal treatment of waste in the gas plant — Combustion in the steam boiler of the power plant of non-purified instead of purified gas

Operative part of the judgment

A power plant which uses as an additional fuel, in substitution for fossil fuels used for the most part in its production activities, gas obtained in a gas plant following thermal treatment of waste is to be regarded, jointly with that gas plant, as a ‘co-incineration plant’ within the meaning of Article 3(5) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste when the gas in question has not been purified within the gas plant.

(1) OJ C 193, 15.8.2009.

17.4.2010

Official Journal of the European Union

C 100/9

Judgment of the Court (Seventh Chamber) of 25 February 2010 — European Commission v Kingdom of Spain

(Case C-295/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/43/EC - Company law - Statutory audits of annual accounts and consolidated accounts - Failure to transpose within the prescribed period)

2010/C 100/13

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: G. Braun and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, 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 Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (OJ L 157, p. 87)

Operative part of the judgment

The Court:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

(1) OJ C 256, 24.10.2009.

17.4.2010

Official Journal of the European Union

C 100/10

Judgment of the Court (Seventh Chamber) of 25 February 2010 — European Commission v Republic of Austria

(Case C-330/09) (1)

2010/C 100/14

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Braun and M. Adam, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer, acting as Agent)

Re:

Operative part of the judgment

The Court:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC, the Republic of Austria has failed to fulfil its obligations under that directive;

2.	Orders the Republic of Austria to pay the costs.

(1) OJ C 233, 26.9.2009.

17.4.2010

Official Journal of the European Union

C 100/10

Order of the President of the Court of 16 December 2009 (references for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom)) — 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, Philip George Charles Houghton, Derek Owen (C-403/08), Karen Murphy v Media Protection Services Ltd (C-429/08)

(Joined Cases C-403/08 and C-429/08) (1)

(References for a preliminary ruling - Application to participate in the proceedings - Rejection)

2010/C 100/15

Language of the case: English

Referring court

High Court of Justice of England and Wales, Chancery Division, and High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Applicants: Football Association Premier League Ltd, NetMed Hellas SA, Multichoice Hellas SA (C-403/08), Karen Murphy (C-429/08)

Defendants: QC Leisure, David Richardson, AV Station plc, Malcolm Chamberlain, Michael Madden, SR Leisure Ltd, Philip George Charles Houghton, Derek Owen (C-403/08), Media Protection Services Ltd (C-429/08)

Re:

Reference for a preliminary ruling — High Court of Justice of England and Wales, Chancery Division; High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — Interpretation of Articles 28, 30, 49 and 81 EC and of Articles 2(a) and (e), 4(a) and 5 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 (OJ 1998 L 320, p. 54), of Articles 2, 3 and 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), of Article 1(a) and (b) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), and 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 (OJ 1993 L 248, p. 15) — Grant, for consideration, of exclusive rights in respect of satellite broadcasting of football matches — Marketing, in the United Kingdom, of decoders, lawfully placed on the market in another Member State, making it possible to screen such matches in breach of the exclusive rights granted

Operative part

1.	The applications to participate in the proceedings, submitted respectively by the Union of European Football Associations (UEFA), British Sky Broadcasting Ltd, Setanta Sports Sàrl and The Motion Picture Association, are rejected.

2.	There is no need to rule on costs.

(1) OJ C 301, 22.11.2008.

17.4.2010

Official Journal of the European Union

C 100/12

Order of the Court (Seventh Chamber) of 15 January 2010 — Messer Group GmbH v Air Products and Chemicals Inc., Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-579/08 P) (1)

(Appeal - Article 119 of the Rules of Procedure - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word marks Ferromix, Inomix and Alumix - Earlier word marks FERROMAXX, INOMAXX and ALUMAXX - Opposition by the proprietor of the trade mark - Relevant public - Degree of similarity - Limited distinctive character of the earlier mark - Likelihood of confusion)

2010/C 100/18

Language of the case: English

Parties

Appellant: Messer Group GmbH (represented by: W. Graf v. Schwerin and J. Schmidt, Rechtsanwälte)

Other parties to the proceedings: Air Products and Chemicals Inc. (represented by: S. Heurung, Rechtsanwältin), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) of 15 October 2008 in Joined Cases T-305/06 to 307/06 Air Products and Chemicals v OHIM, by which the Court annulled the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 12 September 2006 dismissing the appeals brought by the proprietor of the Community word marks ‘FERROMAXX’, ‘INOMAXX’ and ‘ALUMAXX’ in respect of goods in Class 1 against the Cancellation Division’s decisions which had refused, in part, the opposition filed against the applications for registration of the word marks ‘FERROMIX’, ‘INOMIX’ and ‘ALUMIX’ in respect of goods in Classes 1 and 4

Operative part of the order

1.	The principal appeal and the cross-appeal are dismissed.

2.	Messer Group GmbH shall bear its own costs and pay the costs incurred by Air Products and Chemicals, Inc.

3.	The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) shall bear its own costs.

(1) OJ C 55, 07.03.2009.

17.4.2010

Official Journal of the European Union

C 100/14

Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 28 December 2009 — Pensionsversicherungsanstalt v Andrea Schwab

(Case C-547/09)

2010/C 100/22

Language of the case: German

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Appellant: Pensionsversicherungsanstalt

Respondent: Andrea Schwab

Questions referred

Should Article 2(2), first indent, and Article 3(1)(c) of Directive 76/207/EEC, as amended by Directive 2002/73/EC, (1) and Article 2(1)(a) and (b) and Article 14(1)(c) of Directive 2006/54/EC (2) be interpreted as meaning that direct sex discrimination (termination/dismissal of an employed doctor) by a public pension insurance fund may be justified?

Should Article 4(1) of Directive 97/80/EEC (3) and Article 19(1) of Directive 2006/54/EC — and possibly Article 2(2), second indent, of Directive 76/207/EEC, as amended by Directive 2002/73/EC, and Article 2(1)(b) of Directive 2006/54/EC or Article 2(2)(a) in conjunction with Article 6(1) of Directive 2000/78/EC (4) — be interpreted as precluding national legislation which, in the event of actions for the annulment of terminations/dismissals inter alia on the grounds of sex, does not permit the consideration of social factors or interests, but only the assessment of evidence as to whether the sex discrimination was the predominant motive for the termination/dismissal or whether another reason to be substantiated by the employer predominated?

(1) Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; OJ 1976 L, p. 40.

(2) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); OJ 2006 L 204, p. 23.

(3) Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex; OJ 1998 L 14, p. 6.

(4) 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.

17.4.2010

Official Journal of the European Union

C 100/14

Reference for a preliminary ruling from the Krajský soud v Brně (Czech Republic) lodged on 11 January 2010 — Toshiba Corporation, Areva T&D Holding SA, Areva T&D SA, Areva T&D AG, Mitsubishi Electric Corp., Alstom, Fuji Electric Holdings Co. Ltd, Fuji Electric Systems Co. Ltd, Siemens Transmission & Distribution SA, Siemens AG Österreich, VA TECH Transmission & Distribution GmbH & Co. KEG, Siemens AG, Hitachi Ltd, Hitachi Europe Ltd, Japan AE Power Systems Corp., Nuova Magrini Galileo SpA v Úřad pro ochranu hospodářské soutěže

(Case C-17/10)

2010/C 100/23

Language of the case: Czech

Referring court

Krajský soud v Brně (Regional Court, Brno)

Parties to the main proceedings

Applicants: Toshiba Corporation, Areva T&D Holding SA, Areva T&D SA, Areva T&D AG, Mitsubishi Electric Corp., Alstom, Fuji Electric Holdings Co. Ltd, Fuji Electric Systems Co. Ltd, Siemens Transmission & Distribution SA, Siemens AG Österreich, VA TECH Transmission & Distribution GmbH & Co. KEG, Siemens AG, Hitachi Ltd, Hitachi Europe Ltd, Japan AE Power Systems Corp., Nuova Magrini Galileo SpA

Defendant: Úřad pro ochranu hospodářské soutěže (The Czech Authority for the Protection of Competition)

Questions referred

Must Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Council Regulation (EC) No 1/2003 (1) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty be interpreted to mean that that legislation must be applied (in proceedings brought after 1.5.2004) to the whole period of operation of the cartel, which commenced in the Czech Republic before that state’s entry to the European Union (that is, before 1.5.2004) and continued and ended after the Czech Republic’s entry to the European Union ?

Must Article 11(6) of Council Regulation (EC) No 1/2003 in conjunction with Article 3(1) thereof and recital 17 in the preamble thereto, with point 51 of the Commission Notice on cooperation within the Network of Competition Authorities, (2) with the principle ne bis in idem under Article 50 of the Charter of Fundamental Rights of the European Union, (3) and with the general principles of European law be interpreted as meaning that if the Commission brings proceedings after 1.5.2004 for infringement of Article 81 EC and makes a decision in that case:

a)	the Competition Authorities of the Member States are automatically relieved of their competence to deal with that conduct from that time onwards?

b)	the Competition Authorities of the Member States are relieved of their competence to apply to that conduct the provisions of domestic law containing parallel legislation to Article 81 EC (now Article 101 of the Treaty on the Functioning of the European Union)?

(1) OJ 2003 L 1, p. 1.

(2) OJ 2004 C 101, p. 43.

(3) OJ 2007 C 303, p. 1.

17.4.2010

Official Journal of the European Union

C 100/15

Action brought on 14 January 2010 — European Commission v Portuguese Republic

(Case C-23/10)

2010/C 100/24

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Caeiros, Agent)

Defendant: Portuguese Republic

Form of order sought

—

A declaration that, owing to the systematic acceptance by its customs authorities of customs declarations on the release of fresh bananas into free circulation, when they knew or ought reasonably to have known that the weight declared did not correspond to the bananas true weight, and owing also to the refusal of the Portuguese authorities to make available the own resources corresponding to the loss of revenue and to default interest owed, the Portuguese Republic has failed to fulfil its obligations under Article 68 et seq. of Regulation (EEC) No 2913/92, (1) Article 290a of Regulation (EEC) No 2454/93 (2) and Annex 38b thereto, and under Articles 2, 6, 9, 10 and 11 of Regulations (EEC, Euratom) No 1552/89 (3) and (EC, Euratom) 1150/2000; (4)

—	an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Article 290a of Regulation (EEC) No 2454/93 provides that: Examination of bananas falling within CN code 0803 00 19 for the purposes of checking the net mass on importation shall involve a minimum of 10 % of declarations per year and per customs office. Examination of bananas shall be carried out at the time of release for free circulation, in accordance with the rules laid down in Annex 38b.

Annex 38b provides: ‘1. For the purposes of the application of Article 290a, the customs authorities of the customs office at which the declaration for free circulation of fresh bananas is lodged shall determine the net mass, based on a sample of units of packaging for each type of packaging and for each place of origin …’

Having regard to the Community legislation, in particular, to Article 290a of, and Annex 38b to, Regulation No 2454/93, cited above, which were, as such, the provisions applicable during the period in question, the Commission takes the view that the arguments put forward by the Portuguese authorities to explain why they had not made available the own resources and default interest owing pursuant to Article 11 of Regulation No 1150/2000 cannot be accepted, and that it is unarguable that Article 290a of, and Annex 38b to, Regulation No 2454/93 were quite clear in respect of the weight that must serve as the basis for the application of customs duties.

Article 290a of, and Annex 38b to, Regulation No 2454/93 unequivocally provide that it is the ‘net mass’, that is to say, the ‘true weight’ of the bananas, which must be indicated in the declaration for the release of bananas into free circulation and that it is that ‘true weight’ which must, in consequence, serve as the basis for the application of customs duties.

The Commission was under no legal obligation to publish, in the C series of the Official Journal of the European Union, a notice to importers to the effect that they should not use the weight of 18.14 kg or an overall average weight when preparing customs declarations.

Article 290a of, and Annex 38b to, Regulation No 2454/93 being clear with regard to the question of the weight to be taken into account for the computation of the customs duties, it would be very easy for traders whose usual activity is the importing of bananas and who are, for that reason, aware of the legislation applicable to that activity, to know that the customs declaration that they had to present must state the ‘net mass’, in other words, the true weight of the bananas and not a ‘commercial’ weight which is, as proved in the vast majority of cases, a fictitious weight.

The Portuguese authorities may not plead that the Commission was at fault in not performing a possible obligation to alert the Member States following information sent to it by the Italian authorities. Without a doubt, it would have been possible for the Portuguese customs authorities, present at the place where the imported bananas were cleared through customs, to discover — without receiving any information at all from the Commission — that, in the vast majority of cases, the true weight was greater than the ‘standard’ weight declared. It fell, therefore, to the Portuguese authorities alone, in the ambit of their sphere of action and inspection, to ascertain whether those declarations were correct.

Article 13 of the Community Customs Code gives customs authorities the power to carry out ‘all the controls they deem necessary to ensure that customs legislation is correctly applied’.

The Portuguese authorities knew that it had become common practice for traders to present customs declarations for the release of bananas into free circulation taking as the basis the commercial weight of 18.14 kg per box.

In those circumstances, the authorities cannot maintain that Article 290a required them to examine only 10 % of declarations for the release of bananas into free circulation.

The power given to the customs authorities to carry out additional controls of the weight of bananas, over and above the minimum of 10 % required by Article 290a, becomes an obligation to do so when it is shown, during the controls carried out, that there is a danger that incorrect declarations will be accepted, having regard to the object of effective protection of Community own resources.

When they establish that the weight declared does not correspond to the true weight and that there is a danger that incorrect declarations will be accepted, those authorities must not authorise the release of the bananas into free circulation without checking the weight, even though the minimum control percentage of 10 has already been reached in the customs office during the reference year.

The declaration of the commercial ‘standard’ weight is of itself enough to call in question the genuineness of the weight declared, so warranting a check by the customs authorities for the purpose of establishing the true weight.

By virtue of Article 8 of Decision 94/728/EC, Euratom (5) and of their responsibility for collecting Community own resources, it was for the Member States to ensure the creation of an adequate infrastructure with a view to carrying out the checks necessary for bananas released into free circulation to be cleared through customs correctly, that is to say, on the basis of their true weight.

The Portuguese authorities practice of systematically accepting customs declarations, when they were, or reasonably ought to have been, aware that the weight stated in the customs declaration was not the true weight of the bananas imported, without carrying out any checks at all, and also their refusal to assume any responsibility relating to the financial consequences for the Community budget, are contrary to the principle of effective protection of own resources and the case-law of the Court of Justice.

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

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

(3) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities own resources (OJ 1989 L 155, p. 1).

(4) Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1).

(5) Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities’ own resources (OJ 1994 L 293, p. 9).

17.4.2010

Official Journal of the European Union

C 100/18

Reference for a preliminary ruling from the Varhoven Kasatsionen sad (Bulgaria) lodged on 20 January 2010 — Toni Georgiev Semerdzhiev v Del-Pi-Krasimira Mancheva

(Case C-32/10)

2010/C 100/28

Language of the case: Bulgarian

Referring court

Varhoven Kasatsionen sad

Parties to the main proceedings

Applicant: Toni Georgiev Semerdzhiev

Defendant: Del-Pi-Krasimira Mancheva

Questions referred

1.	Are the provisions of Directive 90/314/EEC (1) applicable to the present case [the subject-matter of the dispute in the main proceedings]?

How is the term ‘other tourist services’ in Article 2(1)(c) of Directive 90/314/EEC to be interpreted, and does that term cover the organiser’s obligation to insure the consumer?

—	What risks must be covered by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company?

—

What type of insurance must be provided by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company: a group insurance policy covering all the participants in the package tour or an individual insurance policy covering each individual participant in the package tour?

Is the organiser’s obligation under Article 4(1)(b)(iv) of Directive 90/314/EEC to provide the consumer before the start of the tour with information on the optional conclusion of an insurance policy to cover the costs of assistance, including repatriation, in the event of an accident to be interpreted as meaning that it includes the organiser’s obligation to conclude an individual insurance policy with the consumer covering the costs of assistance, including repatriation, in the event of an accident?

4.	Is the organiser of the tour obliged under Directive 90/314/EEC to provide the consumer with the original insurance policy before the tour commences?

5.	How is the term ‘damage’ resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC to be interpreted?

6.	Does the term ‘damage’ resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC also cover liability in respect of non-material damage suffered by the consumer?

How are the third and fourth subparagraphs of Article 5(2) of Directive 90/314/EEC to be interpreted in the event of claims for compensation in respect of non-material damage on the ground of personal injury which are based on the failure to perform, or the improper performance of, the services under the contract, including the failure to provide the consumer with the original insurance policy, in the case where the latter does not provide for any limitation of liability to pay compensation?

(1) Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

17.4.2010

Official Journal of the European Union

C 100/19

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 21 January 2010 — Prof. Dr. Oliver Brüstle v Greenpeace e.V.

(Case C-34/10)

2010/C 100/29

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Prof. Dr. Oliver Brüstle

Defendant: Greenpeace e.V.

Questions referred

What is meant by the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44/EC? (1)

a)	Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

Are the following organisms also included:

1.	unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

2.	unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

c)	Are stem cells obtained from human embryos at the blastocyst stage also included?

2.	What is meant by the expression ‘uses of human embryos for industrial or commercial purposes’? Does it include any commercial exploitation within the meaning of Article 6(1) of the Directive, especially use for the purposes of scientific research?

Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching,

a)	because the patent concerns a product whose production necessitates the prior destruction of human embryos,

b)	or because the patent concerns a process for which such a product is needed as base material?

(1) Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13).

17.4.2010

Official Journal of the European Union

C 100/20

Reference for a preliminary ruling from the Raad van State (Belgium), lodged on 25 January 2010 — 1. Vlaamse Dierenartsenvereniging VZW, 2. Marc Janssens v Belgische Staat; intervener: Luk Vangheluwe

(Case C-42/10)

2010/C 100/31

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants

Vlaamse Dierenartsenvereniging VZW

Marc Janssens

Defendant

Belgische Staat

Intervener

Luk Vangheluwe

Questions referred

Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 (1) of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC, and the articles of and annexes to Commission Decision 2003/803/EC (2) of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets preclude national legislation regulating passports for cats and ferrets from, on the one hand, referring to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet, on the other hand, also prescribing that every passport must bear a unique number consisting of 13 characters, namely, ‘BE’, being the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits?

Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 … and the articles of and annexes to … Decision 2003/803/EC … preclude national legislation from also using the model of the European pet passport as proof of both the identification and the registration of dogs and, in that connection, making provision for third parties to insert changes with regard to the identification of the owner and the animal in Parts I to III of a European pet passport attested by an authorised veterinarian by means of identification stickers which are superimposed on the previous identification details?

(1) OJ 2003 L 146, p. 1.

(2) OJ 2003 L 312, p. 1.

17.4.2010

Official Journal of the European Union

C 100/20

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 25 January 2010 — Nomarkhiaki Aftodiikisi Aitoloakarnanias and Others, Elliniki Etairia gia tin Prostasia tou Perivallontos kai tis Politistikis Klironomias and Others and Pagkosmio Tamio gia ti Fisi — WWF Ellas v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon and Others

(Case C-43/10)

2010/C 100/32

Language of the case: Greek

Referring court

Simvoulio tis Epikratias (Council of State)

Parties to the main proceedings

Applicants: Nomarkhiaki Aftodiikisi Aitoloakarnanias (Prefectural Authority of Aitoloakarnania) and Others, Elliniki Etairia gia tin Prostasia tou Perivallontos kai tis Politistikis Klironomias (Hellenic Society for the Protection of the Environment and Cultural Heritage) and Others and Pagkosmio Tamio gia ti Fisi — WWF Ellas (World Wide Fund for Nature — WWF Greece)

Defendants: Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Minister for the Environment, Regional Planning and Public Works) and Others

Questions referred

Does Article 13(6) of Directive 2000/60/EC establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) merely set an ultimate temporal limit (22 December 2009) for the drawing up of management plans for water resources or does it lay down, up until that date, a special time-limit for transposition of the relevant provisions of Articles 3, 4, 5, 6, 9, 13 and 15 of that directive?

Should the Court of Justice of the European Communities hold that the foregoing provision of the directive merely sets an ultimate temporal limit for the drawing up of management plans for water resources, the following question must additionally be referred for a preliminary ruling:

Is national legislation that permits the transfer of water from a particular river basin to another river basin, without the plans having yet been drawn up for the river basin districts within which the river basins from and towards which water will be transferred are located, consistent with Articles 2, 3, 4, 5, 6, 9, 13 and 15 of Directive 2000/60, given that, under Article 2(15) of that directive, the main unit for management of a river basin is the river basin district to which it belongs?

Should the preceding question be answered in the affirmative, the following question must additionally be referred for a preliminary ruling:

For the purpose of Articles 2, 3, 5, 6, 9, 13 and 15 of Directive 2000/60, is the transfer of water from a river basin district to a neighbouring river basin district permitted? Should the answer be in the affirmative, can the purpose of that transfer be only to meet water-supply needs or can irrigation and power generation also be served? Is it in any event a requirement, for the purpose of those provisions of the directive, that the administrative authorities have decided, stating reasons and on the basis of the necessary scientific study, that the receiving river basin district cannot meet with its own water resources the needs which it has in respect of water supply, irrigation and so forth?

Should the Court of Justice of the European Communities hold, as regards Question 1, that Article 13(6) of Directive 2000/60 does not merely set an ultimate temporal limit (22 December 2009) for the drawing up of management plans for water resources, but lays down a special time-limit for transposition of the relevant provisions of Articles 3, 4, 5, 6, 9, 13 and 15 of that directive, the following question must additionally be referred for a preliminary ruling:

Does national legislation, enacted within that special time-limit for transposition, that permits the transfer of water from a particular river basin to another river basin, without the plans having yet been drawn up for the river basin districts within which the river basins from and towards which water will be transferred are located, place, without more, the practical effect of that directive at risk, or is it necessary, in order to assess whether the practical effect of the directive is placed at risk, to take account of criteria such as the scale of the interventions provided for and the objectives of the transfer of the water?

Is a legislative provision which is enacted by a national parliament and which approves river basin management plans without the relevant national rules providing for a public consultation stage in the procedure before the national parliament, and without it being apparent from the case-file that that the consultation procedure before the administrative authorities that is provided for in the directive was observed, compatible with Articles 13, 14 and 15 of Directive 2000/60 which concern the procedures for informing and consulting the public and for public participation?

For the purpose of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5), does an environmental impact assessment which relates to the construction of dams and the transfer of water and which was placed for approval before the national parliament after the annulment by a judicial decision of the measure by which it had previously been approved and in respect of which the publicity procedure had previously been observed, without that procedure being observed anew, meet the requirements of Articles 1, 2, 5, 6, 8 and 9 of the directive regarding informing the public and public participation?

Does a plan to divert a river fall within the field of application of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) where that plan (a) concerns the construction of dams and the transfer of water from one river basin district to another, (b) falls within the field of application of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1), (c) concerns works under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) and (d) may have environmental effects on areas covered by 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)?

Should the preceding question be answered in the affirmative, the following question must additionally be referred for a preliminary ruling:

For the purpose of Article 13(1) of Directive 2001/42, can acts which concerned the scheme at issue and have been annulled with retroactive effect by judicial decisions be considered to be formal preparatory acts which were issued before 21 July 2004 so that there is no obligation to prepare a strategic environmental report?

Should the preceding question be answered in the negative, the following question must additionally be referred for a preliminary ruling:

For the purpose of Article 11(2) of Directive 2001/42, if a plan simultaneously falls within the field of application of that directive and within that of Directives 2000/60 and 85/337 which also require the environmental effects of that scheme to be assessed, are the assessments which have been drawn up on the basis of the provisions of Directives 2000/60 and 85/337 sufficient for observance of the requirements of Directive 2001/42, or will an autonomous strategic environmental report have to be prepared?

10.

For the purpose of Articles 3, 4 and 6 of 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), were the areas which were included in the national lists of sites of Community importance (SCIs) and, ultimately, were included in the Community list of SCIs covered by the protection afforded by Directive 92/43 before the publication of Commission Decision 2006/13/EC of 19 July 2006, by which the list of protected SCIs for the Mediterranean biogeographical region was adopted?

11.

Is it possible, for the purpose of Articles 3, 4 and 6 of Directive 92/43, for the competent national authorities to grant consent authorising the carrying out of a project for the diversion of waters which is not directly connected with or necessary to the conservation of a district included within a special protection area when all the studies that are contained in the file for that project record a complete lack of information or an absence of reliable and updated data regarding the birds in that district?

12.

For the purpose of Articles 3, 4 and 6 of Directive 92/43, can reasons for which a project to divert waters is undertaken that relate principally to irrigation and secondarily to water supply constitute the imperative public interest which the directive requires in order for that scheme to be permitted to be carried out notwithstanding all its adverse effects on areas protected by the directive?

Should the preceding question be answered in the affirmative, the following question must additionally be referred for a preliminary ruling:

13.

In determining the sufficiency of the compensatory measures which are necessary to ensure that the overall coherence of a Natura 2000 area that is harmed by a project to divert waters is protected, for the purpose of Articles 3, 4 and 6 of Directive 92/43 should criteria such as the breadth of that diversion and the extent of the works which the diversion entails be taken into account?

14.

For the purpose of Articles 3, 4 and 6 of Directive 92/43, interpreted in the light of the principle of sustainable development as enshrined in Article 6 of the EC Treaty, may the competent national authorities grant consent for the carrying out of a project to divert waters within a Natura 2000 area that is not directly connected with or necessary to the preservation of the coherence of that area, when it is apparent from the environmental impact assessment for the project that the project will result in the conversion of a natural fluvial ecosystem into a man-made fluvial and lacustrine ecosystem?

17.4.2010

Official Journal of the European Union

C 100/23

Action brought on 28 January 2010 — European Commission v Portuguese Republic

(Case C-44/10)

2010/C 100/33

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

—

Declare that, by failing to take the measures necessary to ensure, by granting permits in accordance with Articles 6 and 8 of Directive 2008/1/EC (1) and reconsidering and, where necessary, updating permits for existing installations, that those existing installations operated from 30 October 2007 in accordance with Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive), the Portuguese Republic has failed to fulfil its obligations under Article 5(1) of that directive.

—	Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

It follows from Article 4 of the IPPC Directive, read in conjunction with Article 5(1) thereof, that the Member States had to ensure that permits for new and existing installations were granted in accordance with the requirements of Articles 6 and 8 of the Directive. They also had to reconsider and, where necessary, update the conditions of permits for existing installations by 31 October 2007.

According to information supplied by the Portuguese authorities in 2008, the relevant authorisation was not applied for in respect of a number of installations. In addition, 280 out of a total of 632 installations operated without the relevant permit being granted.

According to updated information, 481 out of a total of 577 installations have permits, with 17 authorisation procedures pending.

(1) OJ 2008 L 24, p. 8.

17.4.2010

Official Journal of the European Union

C 100/23

Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 28 January 2010 — 1. Vlaamse Dierenartsenvereniging VZW, 2. Marc Janssens v Belgian State

(Case C-45/10)

2010/C 100/34

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants

Vlaamse Dierenartsenvereniging VZW

Marc Janssens

Defendant

Belgian State

Questions referred

Do Articles 3(b), 4(2), 5 and the second subparagraph of Article 17 of Regulation 998/2003/EC (1) of the European Parliament and the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles and annexes of Commission Decision 2003/803/EC (2) of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets preclude a national legislative measure which also uses the model of the European pet passport as proof of the identification and registration of dogs and in so doing makes provision for third parties to make changes regarding the identification of the owner and the animal in Parts I to III of a European pet passport attested by an authorised veterinarian by means of identification stickers which are superimposed on the previous identification details?

Are national provisions which also use the model of the European pet passport, as contained in Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets, as proof of the identification and registration of dogs and in so doing make provision for third parties to make changes regarding the identification of the owner and the animal in Parts I to III of such a passport by means of identification stickers, technical regulations within the meaning of Article 1 of Directive 98/34/EC (3) of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, which under Article 8 of that directive must be communicated to the European Commission before they are enacted?

(1) OJ 2003 L 146, p. 1.

(2) OJ 2003 L 312, p. 1.

(3) OJ 1998 L 204, p. 37.

17.4.2010

Official Journal of the European Union

C 100/24

Action brought on 28 January 2010 — European Commission v Kingdom of Spain

(Case C-48/10)

2010/C 100/35

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, Agent)

Defendant: Kingdom of Spain

Form of order sought

—

declare that, by failing to adopt the measures necessary so that the authorities ensure — by granting authorisations in accordance with Articles 6 and 8 or, by adequately revising the conditions and, if appropriate, updating them — that installations are operated in accordance with the requirements laid down in Articles 3, 7, 9, 10, 13, 14(a) and (b), and 15(2) by 30 October 2007 at the latest, unless other specific provisions of Community law are applicable, the Kingdom of Spain has failed to fulfil its obligations under to Article 5(1) of Directive 2008/1/EC (1) of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (‘IPPC Directive’).

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under Article 5(1) of Directive 2008/1/EC, the period for complying with the obligation to adapt existing installations to the requirements of the IPPC Directive, by granting an integrated environmental authorisation, lapsed on 30 October 2007.

On that date, many existing installations continued operating in Spain without that authorisation. Since the commencement of an action based on that infringement, the process of granting environmental authorisations has been speeded up without, however, bringing an end to that infringement within the period prescribed in the reasoned opinion or, according to the information available to the Commission, without bringing an end to it by the present date. According to the information supplied by the national authorities in their reply to the reasoned opinion, 533 existing installations were still operating without the mandatory IPPC authorisation on the date on which the period prescribed in that opinion, for complying with the obligations arising under Article 5(1) of the IPPC Directive, lapsed.

In those circumstances, it is clear that the Kingdom of Spain has still not fulfilled the obligations arising from that provision.

(1) OJ 2008 L 24, p. 8.

17.4.2010

Official Journal of the European Union

C 100/24

Action brought on 29 January 2010 — European Commission v Italian Republic

(Case C-50/10)

2010/C 100/36

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and C. Zadra, Agents)

Defendant: Italian Republic

Form of order sought

—

Declare that the Italian Republic has failed to fulfil its obligations under Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, (1) by failing to take the necessary measures ‘to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of that directive or, as appropriate, by reconsidering and, where necessary, by updating the conditions’, that all existing installations within the meaning of Article 2(4) of Directive 2008/1/EC operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 5(1) of Directive 2008/1/EC lays down that Member States are to take the necessary measures ‘to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions’, that not later than 30 October 2007 existing installations, as referred to in Article 2(4) of Directive 2008/1/EC, operate in accordance with the requirements set out in that directive.

However, in January 2010 — and, more specifically, at the time when the present action was brought — the Italian Government had still not fully complied with the obligations under Article 5(1) of Directive 2008/1/EC.

(1) OJ 2008 L 24, p. 8.

17.4.2010

Official Journal of the European Union

C 100/25

Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 28 January 2010 — Vlaamse Dierenartsenvereniging VZW v Belgische Staat

(Case C-57/10)

2010/C 100/38

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Vlaamse Dierenartsenvereniging VZW

Defendant: Belgische Staat

Questions referred

Do Articles 3(b), 4(2), 5 and the second subparagraph of Article 17 of Regulation 998/2003/EC (1) of the European Parliament and the Council of 26 May 2003 on the animal health requirements applicable to the non commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles and annexes of Commission Decision 2003/803/EC (2) of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets preclude national legislation in regard to the passport for cats and ferrets which refers to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet in addition prescribes that every passport must bear a unique number consisting of thirteen characters, namely, ‘BE’, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits?

Is national legislation which in regard to the passport for cats and ferrets refers to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet in addition prescribes that every passport must bear a unique number consisting of thirteen characters, namely, ‘BE’, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits, a technical regulation within the meaning of Article 1 of Directive 98/34/EC (3) of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations which, under Article 8 of that Directive, must be communicated to the European Commission before its enactment?’

(1) OJ 2003 L 146, P. 1.

(2) OJ 2003 L 312, p. 1.

(3) OJ 1998 L 204, p. 37.

17.4.2010

Official Journal of the European Union

C 100/26

References for a preliminary ruling from the Conseil d’État (France) lodged on 3 February 2010 in Cases — Monsanto SAS, Monsanto Agriculture France SAS, Monsanto International SARL, Monsanto Technology LLC v Ministre de l’Agriculture et de la Pêche — Monsanto SAS, Monsanto Agriculture France SAS, Monsanto International SARL, Monsanto Europe SA v Ministre de l’Agriculture et de la Pêche — Association générale des producteurs de maïs (AGPM) v Ministre de l’Agriculture et de la Pêche — SCEA de Malaprade, SCEA Coutin, Jérôme Huard, Dominique Richer, EARL de Candelon, Bernard Mir, EARL des Menirs, Marie-Jeanne Darricau, GAEC de Commenian v Ministre de l’Agriculture et de la Pêche — Pioneer Génétique, Pioneer Semences v Ministre de l’Agriculture et de la Pêche — Syndicat des établissements de semences agréés pour les semences de maïs (SEPROMA) v Ministre de l’Agriculture et de la Pêche — Caussade Semences SA v Ministre de l’Agriculture et de la Pêche — Société Limagrain Verneuil Holding v Ministre de l’Agriculture et de la Pêche — Société Maïsadour Semences v Ministre de l’Agriculture et de la Pêche — Ragt Semences SA v Ministre de l’Agriculture et de la Pêche — Euralis Semences SAS, Euralis Coop v Ministre de l’Agriculture et de la Pêche

((Case C-58/10) - (Case C-59/10) - (Case C-60/10) - (Case C-61/10) - (Case C-62/10) - (Case C-63/10) - (Case C-64/10) - (Case C-65/10) - (Case C-66/10) - (Case C-67/10) - (Case C-68/10))

2010/C 100/39

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Monsanto SAS, Monsanto Agriculture France SAS, Monsanto International SARL, Monsanto Technology LLC (C-58/10), Monsanto SAS, Monsanto Agriculture France SAS, Monsanto International SARL, Monsanto Europe SA (C-59/10), Association générale des producteurs de maïs (AGPM) (C-60/10), SCEA de Malaprade, SCEA Coutin, Jérôme Huard, Dominique Richer, EARL de Candelon, Bernard Mir, EARL des Menirs, Marie-Jeanne Darricau, GAEC de Commenian (C-61/10), Pioneer Génétique, Pioneer Semences (C-62/10), Syndicat des établissements de semences agrees pour les semences de maïs (SEPROMA) (C-63/10), Caussade Semences SA (C-64/10), Société Limagrain Verneuil Holding (C-65/10), Société Maïsadour Semences (C-66/10), Ragt Semences SA (C-67/10), Euralis Semences SAS, Euralis Coop (C-68/10)

Defendant: Ministre de l’Agriculture et de la Pêche

Questions referred

Where a genetically modified organism constituting feed was placed on the market prior to the publication of Regulation (EC) No 1829/2003 (1) and the authorisation is maintained in force pursuant to Article 20 of that regulation, must the product at issue be regarded, before a decision has been taken on the application for new authorisation which must be submitted pursuant to the regulation, as among the products to which the provisions of Article 12 of Directive 2001/18/EC (2) cited in the grounds of the present decision refer and, in that event, is the genetically modified organism subject, with respect to the emergency measures which may be adopted after the issue of authorisation to place it on the market, only to Article 34 of Regulation (EC) No 1829/2003 or, on the contrary, may such measures be adopted by a Member State on the basis of Article 23 of the directive and the national provisions transposing it?

On the assumption that emergency measures may be adopted only within the framework of Article 34 of Regulation (EC) No 1829/2003, may the authorities of a Member State adopt, and under what circumstances, a measure such as the contested order (3) on grounds of the containment of risk as referred to in Article 53 of Regulation (EC) No 178/2002 (4) or by way of the interim protective measures which may be adopted by a Member State on the basis of Article 54 of the same regulation?

On the assumption that the authorities of a Member State may intervene on the basis of Article 23 of Directive 2001/18/EC or on the basis of Article 34 of Regulation (EC) No 1829/2003, or on both of those legal bases, the application raises the question as to what degree of requirement, taking into account in particular the precautionary principle, is imposed, respectively, by Article 23 of the directive under which the adoption of emergency measures such as a suspension of the use or provisional prohibition against use of the product is subject to the condition that the Member State must have ‘detailed grounds for considering that a GMO … constitutes a risk to … the environment’ and by Article 34 of the regulation under which the adoption of such a measure is subject to the condition that it be ‘evident’ that the product is ‘likely to constitute a serious risk to … the environment’, in terms of identifying the risk, evaluating its probability and assessing the nature of its effects?

(1) Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003, L 268, p. 1)

(2) Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001, L 106, p. 1)

(3) Order of 5 December 2007 in Case C-58/10; order of 7 February 2008, as amended by the order of 13 February 2008, in Cases C-59/10 to C-68/10.

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

17.4.2010

Official Journal of the European Union

C 100/27

Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 5 February 2010 — Brahim Samba Diouf v Ministre du Travail, de l'Emploi et de l'Immigration

(Case C-69/10)

2010/C 100/40

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicant: Brahim Samba Diouf

Defendant: Ministre du Travail, de l'Emploi et de l'Immigration

Questions referred

Is Article 39 of Directive 2005/85/EC (1) to be interpreted as precluding national rules such as those established in the Grand Duchy of Luxembourg by Article 20(5) of the Amended Law of 5 May 2006 on the right of asylum and complementary forms of protection, pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority’s decision to rule on the merits of the application for international protection under the accelerated procedure?

If the answer is in the negative, is the general principle of an effective remedy under Community law, prompted by Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, to be interpreted as precluding national rules such as those established in the Grand Duchy of Luxembourg by Article 20(5) of the Amended Law of 5 May 2006 on the right of asylum and complementary forms of protection, pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority’s decision to rule on the merits of the application for international protection under the accelerated procedure?

(1) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

17.4.2010

Official Journal of the European Union

C 100/28

Action brought on 11 February 2010 — European Commission v Hellenic Republic

(Case C-80/10)

2010/C 100/43

Language of the case: Greek

Parties

Applicant: European Commission (represented by: F Jimeno Fernández and A. Markouli)

Defendant: Hellenic Republic

Form of order sought

—

declare that Ministerial Order 552 of the Hellenic Republic of 25 August 2004 as amended up until 8 September 2008, and more specifically Article 4(2), (4), (5) and (7), Article 5(4), (5), (6) and (7) and Article 6(2), infringe Article 3(1) and (6), Article 15(1), Article 16(1) and (2) and Article 18 of Regulation (EC) No 882/2004;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that the ministerial order in question relating to official controls in respect of cereals upon their importation from third countries is incompatible with particular provisions of Regulation (EC) No 882/2004.

More specifically, the Greek ministerial order lays down general rules regarding the frequency of physical checks of consignments of feed and food of non-animal origin from third countries, which do not enable the physical checks to be carried out by the competent authority with the degree of flexibility and of differentiation that is required for the system laid down by Article 16(1) and (2) of Regulation (EC) No 882/2004.

Furthermore, it lays down general rules concerning the official detention of such consignments, which provide for the official detention of consignments even in the case of routine checks. That indiscriminate detention of consignments without suspicion of non-compliance or doubt is contrary to Article 18 of Regulation (EC) No 882/2004. In addition, the ministerial order allows the release of all consignments after seven working days, even where there is suspicion of non-compliance or doubt, which also infringes Article 18 of the regulation.

The ministerial order lays down specific rules concerning checks of consignments from third countries for the presence of unauthorised genetically modified organisms. Those checks must be carried out at a frequency of 50 % for consignments of wheat and 100 % for consignments of corn. The Commission considers that these rates are exceptionally high and are not compatible with the system established by Regulation (EC) No 882/2004, in particular Article 16(1) and (2) thereof, and that they result from a failure to assess the risk correctly and to differentiate.

The ministerial order lays down that checks of consignments of corn from Bulgaria and Romania for the presence of unauthorised genetically modified organisms are to be carried out at a frequency of 100 %. The Commission considers that checks at such a frequency are contrary to Regulation (EC) No 882/2004, which provides that checks of consignments from other Member States must be based on the risks and be non-discriminatory and proportionate.

The Hellenic Republic has not put forward sufficient explanation and information to justify the adoption of the abovementioned provisions of the ministerial order relating to official controls in respect of cereals upon their importation from third countries and other Member States of the European Union.

17.4.2010

Official Journal of the European Union

C 100/29

Appeal brought on 12 February 2010 by Longevity Health Products, Inc against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2009 in Case T-484/08 Longevity Health Products, Inc v OHIM — Merck (Kids Vids)

(Case C-84/10 P)

2010/C 100/44

Language of the case: German

Parties

Appellant: Longevity Health Products, Inc (represented by: J. Korab, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA

Form of order sought

By its appeal, the appellant claims that the Court should:

1.	Declare the appeal of Longevity Health Products, Inc admissible,

2.	annul judgment of the General Court of 19 December 2009 in Case T-484/08 and

3.	order the defendant to pay all the costs.

Pleas in law and main arguments

The present appeal is brought against the judgment of the General Court, dismissing the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 28 August 2008 on the dismissal of the application for registration as a Community trade mark of the sign ‘Kids Vits’. The Court delivered a ruling confirming the decision of the Board of Appeal, according to which there was a likelihood of confusion with the earlier Community word mark ‘VITS4KIDS’.

The grounds of appeal relied upon are a breach of procedure and the infringement of Article 8(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

The appellant asserts that the General Court committed a procedural error by not setting a time-limit for lodging a response to the defence submitted by the respondent despite the reasoned request by the appellant. In breach of Community law rules applicable to proceedings before the General Court and the Court of Justice, the applicant’s right to a fair hearing was infringed and its right to legal protection impaired.

The appellant submits that the General Court infringed Article 8(1)(b) of Regulation No 40/94 by wrongly failing to undertake in its assessment of the likelihood of confusion an overall appraisal of all factors. The Court wrongly held that the noticeable similarities of the opposing marks were sufficient to find that there was a likelihood of confusion for the purposes of trade mark law.

In particular the Court did not take sufficient account of the fact that the marks at issue predominantly concern goods and services broadly connected to human health, and therefore a high level of attention can be expected from the relevant class of persons. Consumers are perfectly aware, that in the case of trade mark names derived from and based on chemical nomenclature, even slight differences play a role. Furthermore the attentiveness of consumers is further increased by the fact that confusion of the goods may have very unpleasant consequences. That mere fact alone calls for a higher level of attention.

The Court did not take account of the fact that, the terms of the marks ‘Kids’‘Vits’ und ‘VITS4KIDS’ are substantially different, as the phonetic reproductions of the brand names show appreciable differences. The pronunciation of brand names contribute largely to the memory that a consumer has of a trade mark and on this ground alone there is no likelihood of confusion. Although there is visual similarity, the words ‘Kids’ and ‘Vits’ are nevertheless placed differently in the marks at issue and in the case of the intervener’s mark supplemented by a further sign, (namely a number ‘4’, which should be pronounced as ‘for’ in the sense of ‘intended for’). Furthermore both marks follow as a whole two separate schemes of construction of composite terms, which is of itself sufficient to ensure their distinctiveness.

17.4.2010

Official Journal of the European Union

C 100/30

Reference for a preliminary ruling from the Tribunale di Palermo (Italy) lodged on 15 February 2010 — Assessorato del Lavoro e della Previdenza Sociale v Seasoft SpA

(Case C-88/10)

2010/C 100/46

Language of the case: Italian

Referring court

Tribunale di Palermo

Parties to the main proceedings

Applicant: Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della Regione Sicilia

Defendant: Seasoft SpA

Questions referred

In the light of the fact that the aid scheme (Ref. NN 91/A/95) established by the Region of Sicily in Article 10 of Regional Law No 27 of 15 May 1991 laid down a mechanism of assistance for a minimum of two, and a maximum of five, years (two years for workers recruited on training and work experience contracts plus a maximum of three years in cases where those contracts are converted into open-ended contracts), was it the intention of the European Commission, in Decision No 95/C 343/11 of 14 November 1995 authorising the scheme’s implementation (‘the authorising decision’):

—	to permit such a cumulative increase to the duration and financial amount of the assistance (two years + three years) or, alternatively,

—

to authorise, on a mutually exclusive basis, either the grant of assistance for workers recruited on training and work experience contracts (for the two years’ duration of such contracts) or the grant of assistance for those workers recruited previously on training and work experience contracts which were subsequently converted into open-ended contracts (for the three years from that conversion)?

Should the time-limit of the financial year 1997 for the implementation of State aid, laid down by the European Community in the authorising decision approving the scheme established by Regional Law No 27/91, be interpreted as referring to:

—	the initial provision for expenditure on aid scheduled in any event to be paid in subsequent years (according to the various interpretations of authorised aid possible, which have been referred to), or rather

—	the time-limit for the actual payment of assistance by the competent regional bodies?

Thus, for workers recruited on training and work experience contracts, pursuant to Article 10 of Regional Law No 27/91, for instance on 1 January 1996, and therefore before the time-limit for the period for implementing the State aid set out in the authorising decision, was the Region of Sicily permitted — and indeed required — actually to implement the aid scheme in question for all of the years authorised (that is to say two + three), and even where, as in the example mentioned, the implementation of the authorised scheme entailed the actual payment of the assistance until 31 December 2001 (that is to say, 1996 + five years = 2001)?

Was it the intention of the European Commission, by Article 1 of Decision No 2003/195/EC (1) of 16 October 2002, which states: ‘The aid scheme which Italy plans to implement under Article 11(1) of the Sicilian Regional Law No 16 of 27 May 1997 is incompatible with the common market. The scheme may accordingly not be implemented’:

—

to refuse authorisation of the ‘new’ aid scheme established under Article 11 of Regional Law No 16/97, because the Commission regarded that scheme as an ‘autonomous’ system designed to extend the period for implementing the aid introduced by Article 10 of Regional Law No 27/91 beyond the time-limit of 31 December 1996 to include even the costs of recruiting workers and/or converting contracts carried out in the years 1997 and 1998, or

—	rather, by that decision, to prevent the Region from materially acquiring the financial resources, in order to prevent the actual payment of the State aid laid down in Article 10 of Regional Law No 27/91, even for workers recruited and/or contracts converted before 31 December 1996?

If the Commission’s decision is to be interpreted along the lines of the first option in question 4, is such a decision compatible with the Commission’s interpretation of Article 87 of the Treaty in determining similar cases relating to the exemptions from the costs of social security contributions on training and work experience contracts in Decision 2000/128/EC (2) of 11 May 1999 (concerning the laws of the Italian State and specifically referred to in the grounds of the decision of incompatibility of 2002) and Decision 2003/739/EC (3) of 13 May 2003 (concerning the laws of the Region of Sicily)?

If the Commission’s decision is to be interpreted along the lines of the second option in question 4, what interpretation is to be given to the previous decision authorising the aid measures, taking into account the dual meaning that may be ascribed to the adjective ‘further’, that is to say ‘further in relation to the budget as laid down in the Commission’s decision’ or ‘further in relation to the provision for finance made by the Region only until the financial year 1996’?

7.	Ultimately, which aid is to be regarded as lawful, and which as unlawful, according to the Commission?

8.	Which of the parties to the present proceedings (the company or the Regional Ministry), has the burden of proving that the budget laid down by the Commission itself has not been exceeded?

9.	Should the award of statutory interest to a company for late payment of assistance that is held to be lawful and admissible be taken into account in determining whether the budget originally approved by the authorising decision has been exceeded?

10.	If the award of such interest is relevant in determining whether that budget has been exceeded, what measure of interest is to be applied?

(1) OJ 2003 L 77, p. 57.

(2) OJ 2000 L 42, p. 1.

(3) OJ 2003 L 267, p. 29.

17.4.2010

Official Journal of the European Union

C 100/32

Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 25 February 2010 — Public prosecutor v Malik Gataev, Khadizhat Gataeva

(Case C-105/10)

2010/C 100/48

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Appellant: Public prosecutor

Respondents: Malik Gataev, Khadizhat Gataeva

Questions referred

How is the relationship between the provisions of Council Directive 2005/85/EC (1) (the Asylum Procedures Directive) and the provisions of Framework Decision 2002/584/JHA (2) to be interpreted when a person whose surrender is requested under a European arrest warrant, who is a national of a third country, has applied for asylum in the executing Member State and the application for asylum is in progress at the same time as the case concerning the execution of the arrest warrant?

Is precedence to be given to the right to remain in the Member State pending the examination of the application under Article 7(1) of the directive, or is Article 7(2) of the directive to be interpreted in such a way that execution of the arrest warrant constitutes grounds which displace the right under Article 7(1)? Can a surrender in accordance with the Framework Decision be refused being of a pending asylum application, even though Articles 3 and 4 of the Framework Decision do not include this as grounds for refusal?

b)	Is Article 7(2) of the directive to be interpreted in such a way that it gives Member States a discretion to settle the question referred to in (a) above in national law in the manner desired by them?

c)	In particular, how is Article 7 of the directive to be interpreted regarding the above questions when a person whose surrender is requested under an arrest warrant has applied for asylum essentially on the same grounds as those on which he or she opposes the surrender?

d)	If asylum is granted, does it therefore follow that the executing Member State must refuse surrender? In the event of this situation, reference is also made to the fourth question referred for a preliminary ruling (points a — c).

Is the Framework Decision, taking into account firstly the principle stated in Article 1(2) of that decision and secondly the provisions of Article 6(1) of the Treaty on European Union and the provisions of the Charter of Fundamental Rights of the European Union, to be interpreted in such a way that, taking into account recitals 12 and 13 of the Framework Decision, in addition to the grounds for refusal set out in Articles 3 and 4 of the Framework Decision, surrender can be refused also on other grounds based on the factors set out in the recitals?

If the Framework Decision is to be interpreted in this way, on what grounds may or on what grounds must the executing Member State then rely? Can a Member State in this case rely on the principles of interpretation in relation to the European Convention on Human Rights adopted in the case-law of the European Court of Human Rights regarding extradition on the basis of an offence? Can a Member State also rely on grounds that broaden the grounds for refusal in comparison to the principles of interpretation adopted in the case-law of the European Court of Human Rights?

If the Framework Decision is to be interpreted in such a way that execution of the arrest warrant can also be refused on grounds other than those set out in Articles 3 and 4, does it furthermore follow from this that the Framework Decision also permits a Member State to refuse to execute an arrest warrant that was issued for the purposes of execution of a sentence, on the basis of factors relating to the content or grounds of the judgment delivered in the State which issued the arrest warrant or the appropriateness of the court proceedings which resulted in the judgment, and requiring an investigation of these claims in the Member State which was asked to execute the arrest warrant? On what more precise conditions or grounds can such an investigation (“revision au fond”) become pertinent?

Is the Framework Decision to be interpreted in such a way that, inter alia, it permits a Member State to refuse surrender on the basis of an arrest warrant issued for the purposes of execution of a sentence if there are reasonable grounds to suspect that the trial in which the sentence was passed was not fair because the person convicted was subjected to persecution by the authorities of the country of the sentencing court, in the form of discriminatory prosecution?

Can the provisions of the Framework Decision be interpreted in such a way that surrender can be refused altogether in a situation in which the surrender may be temporarily postponed for serious humanitarian reasons, for example reasons of health, in accordance with Article 23(4) of the Framework Decision, if in such a case the unreasonableness of the surrender cannot be eliminated by a stay of execution?

If the Framework Decision is to be interpreted in such a way that execution of the arrest warrant can be refused on grounds regarding which there are no explicit provisions in the Framework Decision, what conditions for such refusal must be imposed, particularly when the arrest warrant was issued for the purposes of execution of a sentence?

Are the provisions of Article 4(6) of the Framework Decision to be observed correspondingly in that case? In other words, is refusal to execute an arrest warrant conditional on the person whose surrender is requested being a national or a permanent resident of the executing Member State and on that State undertaking itself to execute the sentence or measure in accordance with national legislation?

b)	Is refusal conditional at least on the State from which surrender is requested undertaking itself to execute the sentence or measure in accordance with its domestic law?

If the Framework Decision is to be interpreted in such a way that in some cases it permits refusal to execute an arrest warrant issued for the purposes of execution of a sentence on grounds relating to the content or the grounds of the judgment delivered in the State that issued the arrest warrant or the appropriateness of the court proceedings which resulted in the judgment, is refusal then permitted without the conditions in (a) or (b) above?

Regarding execution of the arrest warrant, what significance must or may be afforded to the fact that a person apprehended, who is a citizen of a third country, opposes the surrender by claiming that he or she is threatened with deportation to a third country in the country which issued the arrest warrant?

What significance do grounds for opposition of this type have, taking into account the provisions of the Framework Decision and the obligations which a Member State issuing an arrest warrant has with respect to nationals of third countries by virtue of Union law, inter alia on the basis of Council Directives 2004/83/EC (3) and 2005/85/EC?

In this context, can Article 28(4) of the Framework Decision, according to which a person who has been surrendered pursuant to a European arrest warrant must not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person, be significant? In addition to surrender on the basis of an offence, can the ban referred to also concern other kinds of removal from a country, such as deportation, and on what conditions?

Is the obligation of a national court to interpret national law in conformity with the Framework Decision, as set out in paragraphs 34 and 42 to 44 of the judgment of the Court of Justice of the European Communities in Case C-105/03 Pupino, valid irrespective of whether the interpretation required by the Framework Decision turns out to be to the advantage or to the disadvantage of an individual party, when the situations set out in paragraphs 44 to 45 of that judgment are not involved?

(1) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

(2) Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. (OJ 2002 L 190, p. 1)

(3) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

17.4.2010

Official Journal of the European Union

C 100/35

Judgment of the General Court of 2 March 2010 — Arcelor v Parliament and Council

(Case T-16/04) (1)

(Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Action for annulment - Lack of direct and individual concern - Action for damages - Admissibility - Sufficiently serious breach of a higher-ranking rule of law conferring rights on individuals - Right to property - Freedom to pursue a trade or profession - Proportionality - Equal treatment - Freedom of establishment - Legal certainty)

2010/C 100/52

Language of the case: English

Parties

Applicant: Arcelor SA (Luxembourg, Luxembourg) (represented by: W. Deselaers, B. Meyring and B. Schmitt-Rady and subsequently by W. Deselaers and B. Meyring, lawyers,)

Defendants: European Parliament (represented by: K. Bradley and M. Moore and subsequently by L. Visaggio and I. Anagnostopoulou, Agents) and Council of the European Union (represented by: B. Hoff-Nielsen and M. Bishop, subsequently by E. Karlsson and A. Westerhof Löfflerova and subsequently by A. Westerhof Löfflerova and K. Michoel, Agents)

Intervener in support of the defendants: European Commission (represented by: U. Wölker, Agent)

Re:

Partial annulment of 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), and compensation for the damage allegedly suffered by the applicant in consequence of the adoption of that directive

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Arcelor SA to bear its own costs and those incurred by the European Parliament and the Council of the European Union;

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

(1) OJ C 71, 20.3.2004.

17.4.2010

Official Journal of the European Union

C 100/35

Judgment of the General Court of 2 March 2010 — Evropaïki Dynamiki v EMSA

(Case T-70/05) (1)

(Public service contracts - EMSA tendering procedures - Provision of information technology services - Rejection of the tender - Action for annulment - Jurisdiction of the Court - Non-compliance of a tender - Equal treatment - Compliance with the award criteria set out in the tender specifications or the contract notice - Establishment of sub-criteria for the award criteria - Manifest error of assessment - Obligation to state the reasons on which a decision is based)

2010/C 100/53

Language of the case: English

Parties

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

Defendant: European Maritime Safety Agency (EMSA) (represented by: W. de Ruiter and J. Menze, Agents and J. Stuyck, lawyer)

Re:

Action for annulment of the decisions of EMSA not to accept the tenders submitted by the applicant in tendering procedures EMSA C-1/01/04, relating to the contract entitled ‘SafeSeaNet Validation and further development’, and EMSA C-2/06/04, relating to the contract entitled ‘Specification and development of a marine casualty database, network and management system’, and to award those contracts to other tenderers

Operative part of the judgment

The Court:

1.	Annuls the decision of the European Maritime Safety Agency (EMSA) to award the contract to the successful tenderer in tendering procedure ‘EMSA C-2/06/04’;

2.	Dismisses the action as to the remainder;

3.	Orders each party to bear its own costs.

(1) OJ C 106, 30.4.2005.

17.4.2010

Official Journal of the European Union

C 100/36

Judgment of the General Court of 3 March 2010 — Bundesverband deutscher Banken v Commission

(Case T-163/05) (1)

(State aid - Transfer of public assets to Landesbank Hessen-Thüringen Girozentrale - Decision declaring the aid to be, in part, incompatible with the common market and ordering its recovery - Private investor test - Obligation to state the reasons on which the decision is based)

2010/C 100/54

Language of the case: German

Parties

Applicant: Bundesverband deutscher Banken eV (Berlin, Germany) (represented by: H.-J. Niemeyer, K.-S. Scholz and J.-O. Lenschow, lawyers)

Defendant: European Commission (represented by: N. Khan and T. Scharf, Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by M. Lumma and C. Schulze-Bahr, acting as Agents, and by J. Witting, lawyer); Land Hessen (Germany) (represented initially by H.-J. Freund and M. Holzhäuser, and subsequently by H.-J. Freund and S. Lehr, lawyers); and Landesbank Hessen-Thüringen Girozentrale (Frankfurt am Main, Germany) (represented by H.-J. Freund, lawyer)

Re:

Application for annulment of Commission Decision 2006/742/EC of 20 October 2004 on aid granted by Germany [to] Landesbank Hessen-Thüringen — Girozentrale (OJ 2006 L 307, p. 159)

Operative part of the judgment

The Court:

1.	Orders the documents produced by the Bundesverband deutscher Banken eV at Annexes 9 and 10 to the reply to be removed from the file;

2.	Dismisses the application;

3.	Orders the Bundesverband deutscher Banken to bear its own costs and to pay those incurred by the European Commission, the Land Hessen and Landesbank Hessen-Thüringen Girozentrale;

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

(1) OJ C 155, 25.6.2005.

17.4.2010

Official Journal of the European Union

C 100/36

Judgment of the General Court of 3 March 2010 — Artegodan v Commission

(Case T-429/05) (1)

(Non-contractual liability - Medicinal products for human use - Decision requiring the withdrawal of marketing authorisations - Annulment of the decision by a judgment of the Court of First Instance - Sufficiently serious breach of a rule of law conferring rights on individuals)

2010/C 100/55

Language of the case: German

Parties

Applicant: Artegodan GmbH (Lüchow, Germany) (represented by: U. Doepner, then A. Lensing-Kramer and subsequently by U. Reese and A. Sandrock, lawyers)

Defendant: European Commission (represented by: B. Stromsky and M. Heller)

Intervening in support of the form of order sought by the defendant: Federal Republic of Germany (represented by: M. Lumma and U. Forsthoff, Agents)

Re:

Application for compensation under Article 235 EC and the second paragraph of Article 288 EC for damage allegedly suffered by the applicant as a result of the adoption of Commission Decision C (2000) 453 of 9 March 2000 concerning the withdrawal of marketing authorisations for medicinal products for human use containing amfepramone

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Artegodan GmhH to bear its own costs and to pay those incurred by the European Commission.

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

(1) OJ C 48, 25.2.2006.

17.4.2010

Official Journal of the European Union

C 100/37

Judgment of the General Court of 3 March 2010 — Bundesverband deutscher Banken v Commission

(Case T-36/06) (1)

(State aid - Transfer of public assets to Landesbank Hessen-Thüringen Girozentrale - Decision finding that the notified measure does not constitute aid - Private investor test - Obligation to state the reasons on which the decision is based - Serious difficulties)

2010/C 100/56

Language of the case: German

Parties

Applicant: Bundesverband deutscher Banken eV (Berlin, Germany) (represented by: H.-J. Niemeyer and K.-S. Scholz, lawyers)

Defendant: European Commission (represented by: N. Khan and T. Scharf, Agents)

Interveners in support of the defendant: Land Hessen (Germany) (represented initially by H.-J. Freund and M. Holzhäuser, and subsequently by H.-J. Freund and S. Lehr, lawyers); and Landesbank Hessen-Thüringen Girozentrale (Frankfurt am Main, Germany) (represented by H.-J. Freund, lawyer)

Re:

Application for annulment of Commission Decision C(2005) 3232 final of 6 September 2005 relating to the transfer of the Hessischer Investitionsfonds (Hessian Investment Fund) as a silent partnership contribution to Landesbank Hessen-Thüringen Girozentrale

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Bundesverband deutscher Banken eV to bear its own costs and to pay those of the European Commission, the Land Hessen and Landesbank Hessen-Thüringen Girozentrale.

(1) OJ C 96, 22.4.2006.

17.4.2010

Official Journal of the European Union

C 100/37

Judgment of the General Court of 3 March 2010 — Freistaat Sachsen and Others v Commission

(Joined Cases T-102/07 and T-120/07) (1)

(State aid - Aid granted by Germany in the form of a participation and loan guarantees - Decision declaring aid incompatible with the common market - General aid scheme approved by the Commission - Concept of a firm in difficulty - Guidelines on State aid for rescuing and restructuring firms in difficulty - Amount of aid - Obligation to state the reasons on which the decision is based)

2010/C 100/57

Language of the case: German

Parties

Applicants: Freistaat Sachsen (Germany) (represented by: C. von Donat and G. Quardt, lawyers) (Case T-102/07), MB Immobilien Verwaltungs GmbH (Neukirch, Germany) (represented initially by: G. Brüggen, and subsequently by A. Seidl, K. Lengert and W. Sommer, lawyers) and MB System GmbH & Co. KG, (Nordhausen, Germany) (represented by: G. Brüggen, lawyer) (Case T-120/07)

Defendant: European Commission (represented by: K. Gross and T. Scharf, Agents)

Re:

Application for annulment of Commission Decision 2007/492/EC of 24 January 2007 on the State aid C 38/2005 (ex NN 52/2004) implemented by Germany for the Biria Group (OJ 2007 L 183, p. 27)

Operative part of the judgment

The Court:

1.	Annuls Commission Decision 2007/492/EC of 24 January 2007 on the State aid C 38/2005 (ex NN 52/2004) implemented by Germany for the Biria Group.

2.	Orders the Commission to pay the costs, including those relating to the interim proceedings in Case T-120/07.

(1) OJ C 129, 9.6.2007.

17.4.2010

Official Journal of the European Union

C 100/38

Judgment of the General Court of 3 March 2010 — Lufthansa AirPlus Servicekarten v OHIM — Applus Servicios Tecnológicos (A+)

(Case T-321/07) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark A+ - Earlier Community word mark AirPlus International - Relative grounds for refusal - No likelihood of confusion - Lack of similarity between the signs - Duty to state reasons - Rights of the defence - Articles 8(1)(b) and (5), 73, 74 and 79 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 75, 76 and 83 of Regulation (EC) No 207/2009))

2010/C 100/58

Language of the case: English

Parties

Applicant: Lufthansa AirPlus Servicekarten GmbH (Neu-Isenburg, Germany) (represented by G. Würtenberger, R. Kunze and T. Wittman, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Applus Servicios Tecnológicos, SL (Barcelona, Spain) (represented by E. Torner Lasalle, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 7 June 2007 (Case R 310/2006-2), relating to opposition proceedings between Lufthansa AirPlus Servicekarten GmbH and Applus Servicios Tecnológicos, SL.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Lufthansa AirPlus Servicekarten GmbH to pay the costs.

(1) OJ C 269, 10.11.2007.

17.4.2010

Official Journal of the European Union

C 100/41

Action brought on 11 January 2010 — Inuit Tapiriit Kanatami e.a. v Parliament and Council

(Case T-18/10)

2010/C 100/64

Language of the case: English

Parties

Applicants: Inuit Tapiriit Kanatami (Ottawa, Canada), Nattivak Hunters & Trappers Association (Qikiqtarjuaq, Canada) Pangnirtung Hunters ‘and Trappers’ Organisation (Pangnirtung, Canada), Jaypootie Moesesie (Qikiqtarjuaq, Canada), Allen Kooneeliusie (Qikiqtarjuaq, Canada), Toomasie Newkingnak (Qikiqtarjuaq, Canada), David Kuptana (Ulukhaktok, Canada), Karliin Aariak (Iqaluit, Canada), Efstathios Andreas Agathos (Athens, Greece), Canadian Seal Marketing Group (Quebec, Canada), Ta Ma Su Seal Products (Cap-aux-Meules, Canada), Fur Institute of Canada (Ottowa, Canada), NuTan Furs, Inc (Catalina, Canada), Inuit Circumpolar Conference Greenland (ICC) (Nuuk, Canada), Johannes Egede (Nuuk, Canada), Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) (Nuuk, Canada) (represented by: J. Bouckaert, M. van der Woude and H. Viaene, lawyers)

Defendants: European Parliament and Council of the European Union

Form of order sought

—	declare the action admissible;

—	annul Regulation No 1007/2009 pursuant to Article 263 TFUE;

—	order the defendants to pay the applicants’ costs;

—	order the defendants to pay their own costs.

Pleas in law and main arguments

By means of this application the applicants, Inuit seal hunters and trappers, individuals in another way engaged in other activities involving the seal products, organisations representing the interests of Inuit as well as other individuals and companies active in processing of seal products, seek the annulment of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (1) providing for restrictions on the placing on the market of the European Union of the seal products.

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

First, the applicants argue that the European Parliament and the Council erred in law when using Article 95 EC (currently Article 114 TFEU) as the legal basis for adopting contested regulation. In this regard, the applicants submit that established case law of the European Court of Justice confirms that measures referred to in Article 95 EC must genuinely have as their object the improvement of the conditions for the establishment and functioning of the internal market and that the mere fact that they have a bearing on its establishment is not sufficient to make Article 95 EC applicable. In the applicants ‘opinion, the contested regulation does not result in such improvement as required by the European Courts’ case law but, on the contrary, it will effectively eliminate any possibility of an internal market in seal products covered by the regulation’s scope.

Second, the applicants contend that the defendants erred in law by infringing the principles of subsidiarity and proportionality as enshrined in Article 5 TEU and further elaborated on in the Protocol on the application of the principles of subsidiarity and proportionality. They claim that the defendants do not demonstrate why intervention at the European Union level is required. The applicants point out that only two Member States had already introduced a ban on seal products. Furthermore, they argue that, even if action at European Union level was to meet the subsidiarity requirement, less intrusive measures would have sufficed to meet the stated goals of the regulation. The applicants contest the fact that the defendants opted for a near total ban on seal products, rather than adopting less restrictive alternatives, such as labelling requirements.

Third, the applicants claim that the contested regulation unduly limits the subsistence possibilities of the applicants, relegating their economic activities to traditional hunting methods and subsistence. They contend that, despite this direct interference with their daily way of life, they have never been heard by the Council nor by the Parliament. Moreover, the applicants submit that the defendants did not weigh the interests of the Inuit Community in surviving in the Arctic against the moral convictions of some citizens in the Union and therefore violated the Article I of Protocol No I to the European Convention of Human Rights (ECHR) and Article 8 ECHR, read in light of Articles 9 and l0 ECHR and as explained in the Court’s case law, as well as their fundamental right to be heard.

(1) OJ 2009 L 286, p. 36

17.4.2010

Official Journal of the European Union

C 100/42

Action brought on 25 January 2010 — Germany v Commission

(Case T-21/10)

2010/C 100/65

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and C. von Donat, lawyer)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision C(2009) 9049 of 13 November 2009, notified to the applicant by letter of 16 November 2009, reducing the assistance granted to the Single Programming Document Objective 2 Saarland (1997-1999) in the Federal Republic of Germany from the European Regional Development Fund (ERDF) under Commission Decisions C(97)1123 of 7 May 1997 and C(1999) 4928 of 28 December 1999;

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

Pleas in law and main arguments

By the contested decision, the Commission reduced the financial assistance granted from the ERDF in respect of the Single Programming Document (1997-1999) for the Objective 2 region of the Saarland in the Federal Republic of Germany.

The applicant puts forward five pleas in law in support of its action.

First, the applicant complains that there is no legal basis for the flat-rate approach to and extrapolation of financial corrections in the funding period 1994-1999, which covers the Single Programming Document.

Second, the applicant alleges infringement of Article 24(2) of Regulation (EEC) No 4253/88 (1) since the conditions for a reduction do not apply. It submits, in particular, in that regard that the Commission misconstrued the notion of ‘irregularity’. Furthermore, although the Commission made an assumption regarding systemic errors, it did not establish that the national authorities responsible for the administration of Structural Funds were in breach of their obligations under Article 23 of Regulation No 4253/88. The assumptions regarding systemic errors in relation to administration and control are, moreover, according to the applicant, based on erroneous findings of fact. The applicant also submits that important aspects of the factual background have been determined and assessed incorrectly.

In the alternative, the applicant submits by its third plea in law that the reductions put forward in the contested decision are disproportionate. The applicant claims in this respect that the Commission failed to exercise its discretion under Article 24(2) of Regulation No 4253/88. Furthermore, the flat-rate corrections applied are in excess of the (potential) loss to the Community budget. The applicant also takes the view that the extrapolation of errors is disproportionate because specific errors cannot be applied to a heterogeneous whole.

By its fourth plea in law the applicant alleges a breach of essential procedural requirements. In this respect, the applicant complains about the inadequacy of the reasons put forward for the contested decision and the procedures adopted by the defendant at the end of the funding period. The applicant submits that the contested decision does not disclose how and why the Commission set the flat rates applied at the level that it did. Furthermore, the Commission changed the findings of the assessors working in situ without conducting a further assessment and failed or failed sufficiently to take into account the submission of the German authorities.

Finally, the applicant puts forward a fifth plea in law whereby the defendant infringed the principle of partnership inasmuch as it initially confirms the adequacy of administrative and control systems, but bases the contested decision on systemic failings in the administrative and control system.

(1) 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).

17.4.2010

Official Journal of the European Union

C 100/42

Action brought on 25 January 2010 — Esprit International v OHIM — Marc O’Polo International (Representation of the letter ‘e’ on a trouser pocket)

(Case T-22/10)

2010/C 100/66

Language in which the application was lodged: German

Parties

Applicant: Esprit International LP (New York, United States of America) (represented by: M. Treis, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marc O’Polo International GmbH (Stephanskirchen, Germany)

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) of 19 November 2009 in Case R 1666/2008-4;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Esprit International

Community trade mark concerned: a figurative mark representing the letter ‘e’ on a trouser pocket for goods in Classes 18 and 25 (Application No 5 089 859)

Proprietor of the mark or sign cited in the opposition proceedings: Marc O’Polo International GmbH

Mark or sign cited in opposition: in particular, a German figurative mark No 30 303 672 representing the letter ‘e’ for goods in Classes 18 and 25

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks

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

17.4.2010

Official Journal of the European Union

C 100/43

Action brought on 27 January 2010 — CECA v Commission

(Case T-24/10)

2010/C 100/67

Language of the case: English

Parties

Applicant: CECA SA (La Garenne Colombes, France) (represented by: J. Joshua, Barrister, E. Aliende Rodríguez, lawyer)

Defendant: European Commission

Form of order sought

—	annul Articles 1(1) and (2) of Commission decision C(2009) 8682 of 11 November 2009 insofar as it relates to the applicant and, in any event, annul Article 1(1) insofar as it finds that the applicant participated in an infringement in tin stabilisers between 16 March 1994 and 31 March 1996;

—	cancel the fines imposed on the applicant in Article 2;

—	if the Court does not annul the fines in their entirety, substantially reduce them pursuant to its full jurisdiction;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, annulment is sought of Commission’s decision of 11 November 2009 in Case COMP/38.589 — Heat stabilisers which finds that the applicant participated in two separate infringements of Article 81 EC (now Article 101 TFEU), one in tin stabilisers and one in ESBO, and imposes a fine for each product.

The applicant puts forward the following pleas in law in support of its application:

First, it is submitted that, on a proper application of Article 25 of Regulation (EC) No 1/2003 (1), the Akzo litigation (2) did not suspend the running of time and the Commission’s power to impose fines was time-barred for both infringements under the ten year ‘double limitation’ rule. The applicant claims that the Commission erred in law by finding that the period the Akzo proceedings were before the Court operated to suspend the running of time and wrongly concluded that the ten year limit provided for in Article 25(5) of the abovementioned Regulation could be extended in the present case.

Second, the applicant claims that the Commission has demonstrated no legitimate interest in making a declaratory finding of infringements in respect of which it had no power to impose fines. In fact, the applicant submits that Article 7 of Regulation (EC) No 1/2003 allows the Commission to make a declaratory finding that an infringement has been committed if it does not impose a fine, provided that the it is demonstrated that the Commission has a legitimate interest.

Third, and independently of the two first pleas, the applicant requests the Court to annul the declaratory finding enshrined in Article 1(1) of the contested decision on the basis of which it had participated in an infringement in tin stabilisers during the period 16 March 1994 — 31 March 1996 and contends that the Commission has demonstrated no legitimate interest in making such a finding.

Fourth, and if the Court does not annul the fines in their entirety, the applicant contends that the Commission has not proved duration beyond 23 February 1999 and that therefore the fine imposed for the second cartel period should be reduced to reflect a shorter duration of the infringements.

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

(2) Judgment of the General Court of 17 September 2007, in Joined Cases T-125/03 and T-253/03, Akzo Nobel Chemicals et Akcros Chemicals/Commission, [2007], ECR II-3523

17.4.2010

Official Journal of the European Union

C 100/44

Action brought on 27 January 2010 — BASF Specialty Chemicals and BASF Lampertheim v Commission

(Case T-25/10)

2010/C 100/68

Language of the case: German

Parties

Applicants: BASF Specialty Chemicals Holding GmbH (Basel, Switzerland), BASF Lampertheim GmbH (Lampertheim, Germany) (represented by: F. Montag and T. Wilson, lawyers)

Defendant: European Commission

Form of order sought

—

Annul Article 1(1)(q) and Article 1(2)(q) of Decision C(2009) 8682 final of 11 November 2009 (Case COMP/38.589 — Heat stabilisers) concerning BASF Specialty Chemicals Holding GmbH, Article 1(1)(r) and Article 1(2)(r) of the decision concerning BASF Lampertheim GmbH as well as Article 2(15) and (36) of the decision concerning both applicants;

—	in the alternative, reduce appropriately the amount of the fine imposed on the applicants in Article 2(15) and (36) of the decision;

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

Pleas in law and main arguments

The applicants have brought an action against Commission Decision C(2009) 8682 of 11 November 2009 in Case COMP/C38.589 — Heat stabilisers. In the contested decision, the Commission imposed fines on the applicants and other undertakings in respect of infringements of Article 81 EC and — since 1 January 1994 — of Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a series of agreements and/or concerted practices in the market for tin stabilisers and in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied.

In support of their action, the applicants have submitted three pleas in law.

First, the applicants invoke an infringement of Article 25 of Regulation (EC) No 1/2003, (1) since the defendant’s right to impose fines on the applicants had become time-barred. Contrary to the Commission’s view, the applicants take the view that the provisions of Article 25(6) of Regulation No 1/2003 regarding the suspension of the limitation period do not apply to the applicants.

Second, the applicants claim that the contested decision breaches Article 101(1) TFEU in conjunction with Article 23(2) of Regulation No 1/2003, since for the most part, the infringements may not be imputed to BASF Specialty Chemicals Holding GmbH, so that no fine should have been imposed on the undertaking in this regard. In this respect, the applicants also submit that the Commission thereby infringed Article 23(2) of Regulation No 1/2003 when it set the fine for BASF Lampertheim GmbH, since in determining the 10 % ceiling for the fine for periods during which BASF Specialty Chemicals Holding GmbH was not liable, it should have taken into account the turnover of BASF Lampertheim GmbH only.

Finally, by way of a third plea in law, the applicants claim that there has been an infringement of Article 23(2) and (3) of Regulation No 1/2003 in conjunction with the Guidelines on the method of setting fines, (2) since the Commission did not sufficiently reduce the fines imposed on the applicants. The applicants submit that the Commission should have taken greater account of the unreasonably long duration of the administrative procedure and the applicants’ cooperation under the leniency notice. (3) Further, the active cooperation of the applicants outside the leniency notice should have been taken into account for the purposes of the reduction of the fine.

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

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2)

(3) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)

17.4.2010

Official Journal of the European Union

C 100/45

Action brought on 25 January 2010 — Alibaba Group v OHIM — allpay.net (ALIPAY)

(Case T-26/10)

2010/C 100/69

Language in which the application was lodged: English

Parties

Applicant: Alibaba Group Holding Limited (Grand Cayman, Cayman Islands) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: allpay.net.Limited (Hereford, United Kingdom)

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 5 November 2009 in case R 1790/2008-1, as far as the appeal was dismissed; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ALIPAY’, for goods and services in classes 9, 35, 36, 38 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 of the word mark ‘ALLPAY’, for goods and services in classes 9, 36, 40 and 42; United Kingdom trade mark registration of the word mark ‘ALLPAY.NET’, for goods and services in classes 9, 16, 36, 38 and 42; United Kingdom trade mark registration of a series of word marks containing the word ‘ALLPAY’, for goods and services in classes 9, 36, 40 and 42; unregistered earlier marks or signs containing the word ‘ALLPAY’, used in the course of trade in the United Kingdom

Decision of the Opposition Division: Upheld the opposition for all the contested goods and services

Decision of the Board of Appeal: Dismissed the appeal partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly found that there was likelihood of confusion between the trade marks concerned.

17.4.2010

Official Journal of the European Union

C 100/45

Action brought on 27 January 2010 — AC-Treuhand v Commission

(Case T-27/10)

2010/C 100/70

Language of the case: German

Parties

Applicant: AC-Treuhand AG (Zurich, Switzerland) (represented by: C. Steinle and I. Hermeneit, lawyers)

Defendant: European Commission

Form of order sought

—	Annul Commission Decision C(2009) 8682 final of 11 November 2009 (Case COMP/38.589 — Heat stabilisers) in so far as it concerns the applicant;

—	in the alternative, reduce the amount of the fine imposed on the applicant in Article 2(17) and (38) of the decision;

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

Pleas in law and main arguments

The applicant has brought an action against Commission Decision C(2009) 8682 final of 11 November 2009 (Case COMP/38.589 — Heat stabilisers). In the contested decision, fines were imposed on the applicant and other undertakings on the grounds of an infringement of Article 81 EC and — since 1 January 1994 — of Article 53 of the EEA Agreement. According to the Commission, the applicant participated in agreements and/or concerted practices in the market for tin stabilisers and in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied.

In support of its action, the applicant puts forward nine pleas in law.

First, the applicant claims that the Commission was wrong to assume that the cartel relating to tin stabilisers existed until 21 March 2000 and relating to ESBO/esters until 26 September 2000. The applicant submits in this respect that the cartel ceased its activity in the middle of 1999.

As the second plea in law, the applicant submits that the Commission’s right to impose a fine on the applicant had become time-barred. The applicant claims that the binding limitation period of ten years ended in the middle of 1999. Further, the period of limitation was not suspended during the proceedings in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission.

By way of a third plea in law, the applicant claims that there has been an infringement of Article 81 EC and the principle of legality since, in its capacity as a consulting company, sanctions could not be imposed on the applicant under Article 81 EC. In this respect, the applicant submits that the wording of Article 81 EC does not comprise its conduct, and that, at the moment the offence was committed, such an interpretation of Article 81 EC could at any rate not be envisaged.

In the alternative, the applicant criticises, by way of the fourth, fifth and sixth plea, errors made by the Commission in respect of the assessment of the fine. In detail, the applicant submits that no more than a symbolic fine could have been imposed on the applicant since it could not be envisaged, at the moment the offence was committed, that Article 81 EC would be interpreted to also comprise consulting companies. Further, the Guidelines on the method of setting fines (1) have been infringed, since the fine should not have been set at a flat-rate, but calculated in relation to the fee which the applicant received for its services. Furthermore, the Commission infringed the ten-percent ceiling provided for in the second sentence of Article 23(2) of Regulation (EC) No 1/2003 (2) because a single offence was committed only. In this respect, the applicant submits further that the fines imposed threaten its existence and are incompatible with the whole purpose of that ceiling.

In the context of the three final pleas, the applicant claims that procedural errors were made. The applicant claims an infringement of the principle that cases must be disposed of within a reasonable time (seventh plea), and criticises that the applicant was informed too late of the investigation opened against it (eighth plea) and that the contested decision was not properly notified to the applicant (ninth plea).

(1) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p.2)

(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 of the Treaty (OJ 2003 L 1, p.1)

17.4.2010

Official Journal of the European Union

C 100/46

Action brought on 26 January 2010 — Hairdreams v OHIM — Bartmann (MAGIC LIGHT)

(Case T-34/10)

2010/C 100/71

Language in which the application was lodged: German

Parties

Applicant:‘Hairdreams’ HaarhandelsgmbH (Graz, Austria) (represented by: G. Kresbach, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Rüdiger Bartmann (Gladbeck, Germany)

Form of order sought

—	Amend the contested decision of the Fourth Board of Appeal of OHIM of 18 November 2009 in Case R 656/2008-4 so that the applicant’s appeal of 22 April 2008 is upheld in its entirety and that the defendant is ordered to pay the costs of the opposition proceedings, the appeal and the present action;

—	in the alternative, annul the contested decision and refer it back to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Hairdreams HaarhandelsgmbH

Community trade mark concerned: the word mark ‘MAGIC LIGHT’ for goods in Classes 3, 8, 10, 21, 22, 26 and 44 (Application No 5 196 597)

Proprietor of the mark or sign cited in the opposition proceedings: Rüdiger Bartmann

Mark or sign cited in opposition: the German word mark ‘MAGIC LIFE’ No 30 415 611 for goods in Class 3

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1) on the ground that the Board of Appeal erred in law in its assessment of the likelihood of confusion

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

17.4.2010

Official Journal of the European Union

C 100/47

Action brought on 29 January 2010 — Bank Melli Iran v Council

(Case T-35/10)

2010/C 100/72

Language of the case: English

Parties

Applicant: Bank Melli Iran (Teheran, Iran) (represented by: L. Defalque, lawyer)

Defendant: Council of the European Union

Form of order sought

—	annul paragraph 4, section B, of the annex to Council Regulation (EC) No 110/2009 concerning restrictive measures against Iran as well as the decision of the Council of 18 November 2009;

—	order that the Council pays the applicant’s costs of this application.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Regulation (EC) No 1100/2009 of 17 November 2009 (1) implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (2) and repealing Decision 2008/475/EC (3) in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.

The applicant seeks the annulment of paragraph 4, section B, of the Annexe, in so far as it relates to the applicant and puts forward the following pleas in law in support of its claims.

First, the applicant argues that the contested regulation and decision were adopted in violation of the applicant’s rights of defence and, in particular, its right to have a fair hearing since it did not receive any evidence or documents to support the allegations of the Council. It further states that the additional allegations to the 2008 decision are vague, unclear and impossible for the applicant to respond since it was refused the right to be heard.

The applicant also submits that the defendant infringed its obligation to provide sufficient motivation.

Second, the applicant claims that the Council failed to state individual and specific reasons for contested acts in violation of Article 15.3 of Regulation No 423/2007.

Third, the applicant contends that the defendant committed an error in interpretation of Article 7(2)(a) (b) and (c) of Regulation No 423/2007 since, in the applicant’s opinion, the Council failed to explain how the applicant’s ordinary banking activities prove its engagement or direct association with Iran’s proliferation-sensitive nuclear activities.

In addition, the applicant contests the legality of the General Court’s judgment of 14 October 2009 (4), appealed by the applicant before the Court of justice (5) by which the General Court dismissed its application aiming at annulment of Council Decision 2008/475/EC of 23 June 2008 (6). In this regard the applicant claims that the Court committed an error of law by holding that Regulation No 423/2007 and Decision 2008/475/EC were legally adopted by qualifying majority and not unanimity of members. In the applicant’s opinion, since the Regulation No 423/2007 constitutes the legal basis for the adoption of the regulation and decision contested in the present application, the abovementioned reasoning is applicable to the present application. Thus, the applicant submits that the Council infringed substantial procedural requirement imposed by the Treaty, by the rules of law relating to its enforcement and by Article 7(2) of Common Position 2007/140/CFSP (7).

Further, the applicant contests the General Court’s judgment in so far as the Court held that the power of appreciation of the Council, based on Article 7(2) of Regulation No 423/2007, is autonomous and thus rejected the relevance of decisions of the United Nations Security Council in violation of the principle of proportionality and of the right of property. The applicant submits that the same reasoning applies to the regulation and decision contested in the present case since the Council did not take into account the decisions of the UNSC and therefore violated the principle of proportionality and the right of property.

(1) OJ 2009 L303, p.31

(2) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran OJ 2007 L 103, p. 1

(3) Council Decision of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2008 L 163, p. 29

(4) Case T-390/08, Bank Melli Iran v Council, not yet reported

(5) C-548/09 P, Bank Melli Iran v Council

(6) OJ 2008 L 163, p. 29

(7) Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran, OJ 2007 L 61, p. 49

17.4.2010

Official Journal of the European Union

C 100/48

Action brought on 1 February 2010 — Internationaler Hilfsfonds v Commission

(Case T-36/10)

2010/C 100/73

Language of the case: German

Parties

Applicant: Internationaler Hilfsfonds e.V. (Rosbach, Germany) (represented by: H. Kaltenecker, lawyer)

Defendant: European Commission

Form of order sought

—	Annul the Commission’s decisions of 9 October 2009 and 1 December 2009 in so far as the applicant is thereby refused access to the documents which have not been released;

—	order the defendant to pay the costs of the proceedings and those of the applicant.

Pleas in law and main arguments

The applicant objects to the Commission’s decision of 9 October 2009 by which its application for access to the undisclosed documents on the file concerning the LIEN 97-2011 contract was refused in part, and to the Commission’s letter of 1 December 2009 informing the applicant that a decision on the applicant’s second application for access to the file of the LIEN 97-2011 contract could not be taken within the period prescribed.

In support of its application the applicant submits, in essence, that the Commission was not entitled to deny the applicant access to the documents applied for on the basis of the exceptions laid down under Article 4(3) and (4) of Regulation (EC) No 1049/2001. (1) The applicant further submits in that regard that there is an overriding public interest in the release of the documents which have not yet been made available.

(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).

17.4.2010

Official Journal of the European Union

C 100/49

Action brought on 29 January 2010 — El Corte Inglés v OHIM — Pucci International (PUCCI)

(Case T-39/10)

2010/C 100/74

Language in which the application was lodged: English

Parties

Applicant: El Corte Inglés, S.A. (Madrid, Spain) (represented by: M. López Camba, J. Rivas Zurdo and E. Seijo Veiguela, lawyers)

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

Other party to the proceedings before the Board of Appeal: Emilio Pucci International B.V. (Baarn, The Netherlands)

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 29 October 2009 in case R 173/2009-1;

—	Order the defendant to pay the costs incurred by the applicant;

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

Pleas in law and main arguments

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

Community trade mark concerned: The word mark “PUCCI”, for goods in classes 3, 9, 14, 18, 25 and 28

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

Mark or sign cited: Spanish trade mark registrations of the figurative mark ‘Emidio Tucci’, for goods in classes 3, 9, 14, 25 and 28; Spanish trade mark registration of the word mark ‘E. Tucci’, for goods in class 25; Community trade mark application for the figurative mark ‘Emidio Tucci’, covering inter alia goods in classes 3, 9, 14, 25 and 28.

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly found that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation No 207/2009 as the Board of Appeal failed to conclude that the conditions for the application of this provision are fulfilled, as the earlier trade marks enjoy reputation in Spain in respect of articles related to fashion and the use of a similar sign by a third party would be detrimental to and take unfair advantage of such a reputation.

17.4.2010

Official Journal of the European Union

C 100/49

Action brought on 29 January 2010 — Elf Aquitaine v Commission

(Case T-40/10)

2010/C 100/75

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery, S. Thibault-Liger and A. Noël-Baron, lawyers)

Defendant: European Commission

Form of order sought

—	annul, on the basis of Article 263 of the Treaty on the Functioning of the European Union (TFEU), the whole of [Commission] Decision No C(2009) 8682 final of 11 November 2009 in Case COMP/38589 — Heat Stabilisers in so far as it concerns Elf Aquitaine;

—

in the alternative, annul, on the basis of Article 263 TFEU:

—

Article 2(11), (13), (28) and (30) of Commission’ Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it imposes i) two fines of EUR 3 864 000 and EUR 7 154 000 jointly and severally on Arkema France, CECA and Elf Aquitaine and ii) two fines of EUR 2 704 800 and EUR 5 007 800 on Elf Aquitaine alone; and

—

Article 1(1)(h) and (2)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 in so far as those two provisions state that Elf Aquitaine infringed Article 81 EC and Article 53 EEA respectively (i) in the tin stabilisers sector between 16 March 1994 and 31 March 1996 and between 9 September 1997 and 21 March 2000 and (ii) in the ESBO/esters sector between 11 September 1991 and 26 September 2000;

—

in the further alternative:

—	annul, on the basis of Article 263 TFEU, Article 1(1)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it states that Elf Aquitaine infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996;

—

and reduce, on the basis of Article 261 TFEU:

—	the fines of EUR 3 864 000 and EUR 7 154 000 imposed jointly and severally on Arkema France, CECA and Elf Aquitaine by Article 2(11) and (28) respectively of Commission Decision No C(2009) 8682 final of 11 November 2009; and

—	the fines of EUR 2 704 800 and EUR 5 007 800 imposed on Elf Aquitaine by Article 2(13) and (30) respectively of Commission Decision C(2009) 8682 final of 11 November 2009;

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

Pleas in law and main arguments

In the present case, the applicant is seeking the annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.859 — Heat Stabilisers) concerning cartels in the markets for tin stabilisers and ESBO/esters heat stabilisers throughout the EEA involving price-fixing, the allocation of markets and the exchange of sensitive commercial information or, in the alternative, the cancellation or the reduction of the fine imposed on the applicant.

The action is based, primarily, on two pleas for the annulment of the whole of the decision. The first plea alleges infringement of the applicant’s rights of defence. In the second plea, the applicant alleges that the decision is vitiated by a number of errors of law relating to liability for infringements committed by its subsidiary Arkema and its lower-tier subsidiary CECA.

The action is also based on two pleas in the alternative, and two pleas in the further alternative. In the third plea (in the alternative), the applicant alleges a number of errors of law which must lead, at the very least, to the cancellation of the four fines which were imposed on it under Article 2 of the decision. In the fourth plea (in the alternative), the applicant considers that were the Court to uphold the third plea, it should also annul Article 1 of the decision in so far as it concerns the applicant. In the fifth plea (in the further alternative), if the Court were to reject the first part of the third plea concerning the infringement of the limitation rules, the applicant considers that, at the very least, Article 1(1)(h) of the decision should be annulled inasmuch as it states that the applicant infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996. In the sixth plea (in the further alternative), the applicant submits that if the Court were to reject the two principal pleas and the third plea submitted in the alternative, the infringement of its rights of defence should, at the very least, lead to a reduction of the four fines which were imposed on it.

17.4.2010

Official Journal of the European Union

C 100/50

Action brought on 2 February 2010 — SIMS — Ecole de ski internationale v OHIM — SNMSF (esf école du ski français)

(Case T-41/10)

2010/C 100/76

Language in which the application was lodged: French

Parties

Applicant: Syndicat international des moniteurs de ski — Ecole de ski internationale (SIMS — Ecole de ski internationale) (Albertville, France) (represented by: L. Raison-Rebufat, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Syndicat national des moniteurs du ski français (SNMSF) (Meylan, France)

Form of order sought

—

vary and annul in its entirety Decision R 235/2009-1 of 11 November 2009 of the First Board of Appeal of OHIM concerning the action for annulment brought by the applicant against Decision 2557 C of the Cancellation Division of OHIM to reject its application for a declaration of invalidity of the Community trade mark No 4 624 987 on the ground of an infringement of the provisions of Article 7(1) (h) and (g) of Regulation (EC) No 207/2009;

—

declare that the trade mark No 4 624 987 is invalid on the dual ground of:

—	infringement of Article 6b(1)(a) and (c) of the Paris Convention to which Article 7(h) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark expressly refers;

—	infringement of Article 52 of the Regulation referring to Article 7(1)(g) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark;

—	declare the revocation of mark No 4 624 987 on the ground of the infringement of Article 51(1)(c) of Regulation No 207/2009 of the Council of 26 February 2009 on the Community trade mark.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark ‘esf école du ski français’ for goods and services in Classes 25, 28 and 41 (Community trade mark No 4 624 987).

Proprietor of the Community trade mark: Syndicat national des moniteurs du ski français.

Applicant for the declaration of invalidity: Syndicat international des moniteurs de ski — Ecole de ski internationale (SIMS — Ecole de ski internationale)

Decision of the Cancellation Division: Dismiss the application for a declaration of invalidity.

Decision of the Board of Appeal: Dismiss the appeal of the applicant

Pleas in law: infringement of Article 7(1)(h) and (g) and Article 51(1)(c) of Regulation No 207/2009.

17.4.2010

Official Journal of the European Union

C 100/51

Action brought on 29 January 2010 — Elementis e.a. v Commission

(Case T-43/10)

2010/C 100/77

Language of the case: English

Parties

Applicants: Elementis plc, Elementis Holdings Ltd, Elementis UK Ltd and Elementis Services Ltd (London, United Kingdom) (represented by: T. Wessely, A. de Brousse, E. Spinelli, lawyers and A. Woods, Solicitor)

Defendant: European Commission

Form of order sought

—	Annul the decision of the European Commission of 11 November 2009 No C(2009) 8682 in Case COMP/38589 — Heat Stabilisers insofar as it relates to the applicants;

—	in the alternative, annul or substantially reduce the amount of the fines imposed on the applicants pursuant to the decision;

—	order the defendant to pay the costs of the proceedings, including costs incurred by the applicants associated with payment in whole or in part of the fine;

—	take any other measures that the General Court considers to be appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment, pursuant to Article 263 TFEU, of Commission’s decision of 11 November 2009 No C(2009) 8682 in Case COMP/38589 — Heat Stabilisers, by which a number of undertakings, including the applicants, were held liable for an infringement of Articles 81 EC (now 101 TFEU) and 53 EEA, by participating in two cartels that affected, respectively, the tin stabilisers sector and the ESBO/esters stabiliser sector throughout the EEA.

The pleas in law and main arguments raised by the applicants are the following:

First, the applicants submit that the Commission committed an infringement of law in adopting a fining decision against the applicants in breach of the rules on limitation contained in Articles 25(5) and 25(6) of Council Regulation (EC) No 1/2003 (hereinafter ‘Regulation No 1/2003’) on the implementation of the rules on competition laid down in Articles 81 and 82 EC (now 101 and 102 TFEU) (1). According to Article 25(5) of Regulation No 1/2003, the absolute limitation period beyond which the Commission may not impose sanctions for antitrust violations is 10 years from the date that the infringement ceased. Accordingly, the applicants put forward that the decision taken over 11 years after the end of the applicants’ infringement (2 October 1998) was adopted in violation of the said provision. Further, the applicants submit that the Commission’s position on the legality of the fine despite the expiry of the ten year period rests on its erga omnes interpretation of the suspension of the limitation period provided for in Article 25(6) of Regulation No 1/2003, which, according to the applicants is flawed.

Second, the applicants claim that the Commission infringed the applicants’ rights of defence as the excessive duration of the fact-finding phase of the investigation undermined the ability of the applicants to effectively exercise their rights of defence in this procedure.

Third, the applicants contend that the Commission committed manifest errors in calculating the fine imposed on the applicants by wrongfully basing the fines imposed i) in relation to the pre-joint venture period; and ii) for deterrence, on the turnover achieved by the Akcros joint venture rather than on the turnover achieved by the applicants. According to the applicants, the fines should be reduced by 50 %.

Fourth, the applicants submit that the Commission committed manifest errors of law and infringed the principles of legal certainty, personal responsibility and proportionality by failing to specify the amount of the fine (imposed jointly and severally on the applicants) which is to be paid by the applicants.

(1) OJ 2003 L 1, p. 1

17.4.2010

Official Journal of the European Union

C 100/52

Action brought on 28 January 2010 — GEA Group v Commission

(Case T-45/10)

2010/C 100/78

Language of the case: German

Parties

Applicant: GEA Group (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

Defendant: European Commission

Form of order sought

—	Annul Article 1(2) of the Decision, in so far as it finds that the applicant infringed Article 101(1) TFEU (formerly Article 81(1) EC) and Article 53(1) of the EEA Agreement;

—	annul Article 2 of the decision, in so far as it imposes a fine on the applicant;

—	in the alternative, shorten the duration of the infringement allegedly committed by the applicant pursuant to Article 1(2) and reduce the fine imposed on the applicant in Article 2 of the decision;

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

Pleas in law and main arguments

The applicant has brought an action against Commission Decision C(2009) 8682 of 11 November 2009 in Case COMP/C38.589 — Heat stabilisers. In the contested decision, the Commission imposed fines on the applicant and other undertakings in respect of infringements of Article 81 EC and — since 1 January 1994 — of Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a series of agreements and/or concerted practices in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied. The applicant is jointly and severally liable together with two other undertakings that are legal successors of those undertakings that are alleged to have participated in anti-competitive arrangements.

In support of its action, the applicant has submitted three pleas in law.

By way of the first plea in law, the applicant submits that the Commission wrongly assumed that the legal predecessor of the applicant had decisive influence over the relevant undertakings. The applicant submits in this respect that the contested decision is based on wrong findings of fact and a wrong application of the legal provisions regarding imputation, especially the conditions for the assumption that there was decisive influence.

By way of a second plea in law, the applicant submits that the Commission’s right to impose a fine on the applicants pursuant to Article 25(1) and (5) of Regulation (EC) No 1/2003 (1) had become time-barred. In this respect, the applicant explains that the Commission has not shown that the relevant undertakings committed an infringement after 1996/1997 and in 1999 and 2000, respectively. Further, the applicant submits that the fact that the Commission suspended the procedure because of the proceedings in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission did not lead to a suspension of the period of limitations in respect of the applicant.

Finally, in the third plea, the applicant criticises an infringement of its rights of defence. In this respect, the applicant claims that the Commission suspended the investigation for no reason for more than four years, with the result that the investigation had been running for approximately five years before the applicant was informed and approximately six years before a statement of objections was notified to the applicant. In addition, the Commission failed to investigate the persons involved in the offence and the business unit concerned in order to make a comprehensive finding of the facts of the case. According to the applicant the Commission’s failure deprived it of the opportunity to secure exculpatory evidence and to properly defend its case.

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

17.4.2010

Official Journal of the European Union

C 100/53

Action brought on 28 January 2010 — Faci v Commission

(Case T-46/10)

2010/C 100/79

Language of the case: English

Parties

Applicant: Faci SpA (Milano, Italy) (represented by: S. Piccardo, S. Crosby and S. Santoro, lawyers)

Defendant: European Commission

Form of order sought

—	to annul the contested decision in so far as it finds that the Applicant colluded to fix prices, allocate markets through sales quotas and allocate customers;

—	to annul, or to substantially reduce the fine imposed on the Applicant;

—	to annul the decision in so far as it grants a reduction of the fine originally calculated for Bärlocher or to substantiallv reduce the reduction granted;

—	to order the Commission to pay the Applicant’s costs.

Pleas in law and main arguments

The Applicant seeks the annulment of the Commission Decision of 11 November 2009 (Case No. COMP/38.589 — Heat Stabilisers) in so far as the Commission found the Applicant liable for an infringement of Article 8l EC (now Article 101 TFEU) and Article 53 EEA by colluding to fix prices, allocating markets through sales quotas and allocating customers in the ESBO/esters sector. Alternatively, the Applicant seeks a substantial reduction of the fine imposed upon it.

In support of its application the Applicant claims that the Commission violated general principles of law, committed manifest errors of assessment, infringed the principles of good administration and equal treatment, acted without competence or infringed the principle of undistorted competition, infringed the obligation to state reasons and misapplied the 2006 Fining Guidelines. The applicant puts forward five pleas in law:

—

The Commission made a manifest error of assessment by attaching too little weight to the evidence prior to the Applicant’s participation in the cartel, whilst attaching too much weight to the other evidence. As a result, the significance of the fact that a fully operative hard core cartel involving price fixing, market allocation, customer allocation, injurious pricing and even collusive bribery, had been terminated before the Applicant’s participation began, was not properly assessed when calculating the gravity of the offence committed by the Applicant.

—

The Commission infringed the principle of equal treatment by treating the Applicant similarly to other undertakings, whereas the comparable gravity of its offence warranted substantially different treatment. The Commission imposed a differential of a mere 1 % of the value of sales in the market to be taken into account when setting the fine, despite the fact that the Applicant committed fewer offences and that none of them were hard core in nature and despite a finding of non-implementation by the Applicant. Furthermore, the Commission infringed the prohibition on discrimination by failing to inform the applicant that it was subject to investigation until much later than the other undertakings, thereby causing it prejudice.

—

The Commission infringed the principle of good administration with regard to the unreasonable duration of the administrative proceedings and its suspension of the proceedings to deal with an interlocutory matter. The principle of equal treatment was infringed as the Commission’s actions were unfairly prejudicial to the Applicant who, as a result, should have received a reduction in fine substantially greater than the 1 % received.

—

The Applicant challenges the reduction in fine (in excess of 95 %) granted to Bärlocher, which is an actual or potential competitor of the Applicant, on the grounds of lack of competence, infringement of the principle of equal treatment in the broad sense and of the duty to state reasons. In the Applicant’s view, the reduction in fine amounts to a subsidy, likely to lead to a distortion of competition. In addition, or in the alternative, the reasons for the reduction were not disclosed by the Commission in the version of the Decision notified to the Applicant, amounting to a breach of the duty to state reasons.

—

The fine imposed on it infringed the 2006 Fining Guidelines and attendant principles. When setting the fine, the Commission did not take proper account of the fact that the Applicant had not engaged in hard core cartel offences, unlike the other undertakings, and that it had demonstrated competitive behaviour on the relevant market throughout. The gravity of the Applicant’s infringement was mistakenly assessed by incorrectly imputing anticompetitive behaviour to it. In addition, the Commission failed to assess the actual role Faci played, failed to take account of the Applicant’s limited size, limited market power and inability to damage competition in comparison to the other undertakings and failed to rectify this by reference to point 37 of the 2006 Fining Guidelines, so as to apply them lawfully.

17.4.2010

Official Journal of the European Union

C 100/54

Action brought on 27 January 2010 — Akzo Nobel e.a. v Commission

(Case T-47/10)

2010/C 100/80

Language of the case: English

Parties

Applicants: Akzo Nobel NV (Amsterdam, Netherlands), Akzo Nobel Chemicals GmbH (Düren, Germany), Akzo Nobel Chemicals B.V. (Amersfoort, Netherlands), Akcros Chemicals Ltd (Stratford-upon-Avon, United Kingdom) (represented by: C. Swaak, and Marc van der Woude, lawyers)

Defendant: European Commission

Form of order sought

—	to annul Articles 1 (1) and (2) of the contested decision in whole or in part, and/or

—	reduce the fines imposed by Articles 2 (1) and (2) of the contested decision, and/or

—

declare that Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. cannot be held liable for the infringements before 1993, that Akzo Nobel N.V. cannot be held liable for the infringement for the period between 1987 to 1998, neither individually nor jointly with undertakings belonging to the Elementis group;

—	condemn the Commission to costs of the proceedings.

Pleas in law and main arguments

The applicants seek the annulment of the Commission Decision of 11 November 2009 (Case No COMP/38.589 — Heat Stabilisers) in so far as the Commission found the applicants liable for an infringement of Article 8l EC (now Article 101 TFEU) and Article 53 EEA by colluding to fix prices, allocating markets through sales quotas, allocating customers and exchanging commercially sensitive information in particular on customers, production and sales in the tin stabilisers sector. Alternatively, the applicants seek a substantial reduction of the fine imposed upon it.

The applicants submit that in attributing liability to them, the Commission has made several errors in law and in fact and they put forward three pleas in law in support of their claims.

In the first plea, the applicants argue that the Commission violated the principles of administrative diligence, reasonable delay and the rights of defence in conducting their investigation into the alleged tin stabilisers and ESBO/esters infringements. The delay in the Commission’s investigation does not constitute a suspension under Article 25(6) of Regulation 1/2003 (1). Furthermore, the applicants claim that the Commission violated their rights of defence by not granting access to all exculpatory and incriminatory documents in their file.

In the second plea, the applicants submit that the Commission failed to establish the existence of the infringements and the applicants’ liability for their entire alleged duration. In subsidiary order, the applicants argue that the Commission failed to prove the existence of the infringement during part of the alleged period which should have a downward effect on the calculation of the fine. The Commission breached the ten year prescription rule provided for in Article 25 of Regulation 1/2003 and is time barred from imposing any fine on the applicants.

The applicants’ third plea is subsidiary in nature and only relevant if the Court considers that the Commission is not time barred to act against the applicants and/or that the violations set out in the first plea should not lead to the annulment of the entire Decision. First, the Commission wrongfully attributed liability to Pure Chemicals Ltd and Akzo Nobel N.V. for the conduct of the Akcros J.V. as the latter is solely liable for its anti-competitive conduct. Second, the Commission is time barred to act against Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. for the period preceding the J.V. The applicants submit that the Commission should have allocated the liability separately to the applicants and (companies of) the Elementis group for the JV period. Furthermore, the Commission wrongly double counted the JV’s turnover in the Commission’s calculation of the fines.

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

17.4.2010

Official Journal of the European Union

C 100/55

Appeal brought on 2 February 2010 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-17/09, Meister v OHIM

(Case T-48/10 P)

2010/C 100/81

Language of the case: German

Parties

Appellant: Herbert Meister (Muchamiel, Spain) (represented by H.-J. Zimmermann, lawyer)

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

Form of order sought by the appellant

—	Annul the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The appeal is against the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM by which the appellant’s action was dismissed as manifestly inadmissible.

In support of his appeal, the appellant claims that the action at first instance was necessary on the ground that the facts are directly materially connected with the subject-matter of the previous Joined Cases F-138/06 and F-37/08, which at the time the action was brought had not been decided. The appellant claims that the dismissal from the outset of Case F-17/09 as inadmissible without an oral hearing infringes the guarantee of the right to be heard in Article 6 ECHR. Furthermore, the appellant complains that the Civil Service Tribunal dismissed its request for a stay of proceedings in view of an appeal brought against the judgment in Case F-37/08. Finally, it complains that the court of first instance’s assessment of the subject-matter was incomplete an incorrect in law.

17.4.2010

Official Journal of the European Union

C 100/56

Action brought on 5 February 2010 — The Footwear Co. Ltd v OHIM — Reno Schuhcentrum (swiss cross FOOTWEAR)

(Case T-49/10)

2010/C 100/82

Language in which the application was lodged: German

Parties

Applicant: The Footwear Co. Ltd (Chai Wan, Hong Kong, China) (represented by: G. Griss and C. Loidl, 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: Reno Schuhcentrum GmbH (Thaleischweiler-Fröschen, Germany)

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 4 December 2009 in Case R 1705/2008-4;

—	Reject definitively and in its entirety the opposition to registration of the mark applied for in respect of goods in Classes 25 and 28;

—	Order the Office for Harmonisation in the Internal Market to grant registration of the mark applied for;

—	Order the Office for Harmonisation in the Internal Market to pay the costs, including those incurred in the opposition proceedings and before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The Footwear Co. Ltd

Community trade mark concerned: the word mark ‘swiss cross FOOTWEAR’ for goods in Classes 25 and 28 (Registration No 4 686 549)

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

Mark or sign cited in opposition: the German word mark ‘criss cross’ No 30 229 875 for goods in Classes 14, 18, 25 and 28

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the Community trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks

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

17.4.2010

Official Journal of the European Union

C 100/56

Action brought on 5 February 2010 — Riesenthel v OHIM — Dynamic Promotion (Hampers, crates and baskets)

(Case T-53/10)

2010/C 100/83

Language in which the application was lodged: German

Parties

Applicant: Peter Riesenthel (Gilching, Germany) (represented by: E. Aliki Busse, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Dynamic Promotion Co. Ltd (Bangkok, Thailand)

Form of order sought

—	Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 November 2009 and 10 December 2009 (Case R 621/2009-3);

—	in the alternative, order restitutio in integrum in relation to the applicant;

—	order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community design No 2 179 550 001 for ‘Hampers, crates and baskets’

Proprietor of the Community trade mark: Dynamic Promotion Co. Ltd

Applicant for the declaration of invalidity: Peter Riesenthel

Decision of the Cancellation Division: Dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: Rejection of the appeal as inadmissible

Pleas in law: Infringement of the right to be heard and incorrect exercise of discretion by the Board of Appeal

17.4.2010

Official Journal of the European Union

C 100/57

Action brought on 9 February 2010 — Geemarc Telecom v OHIM — Audioline (AMPLIDECT)

(Case T-59/10)

2010/C 100/84

Language in which the application was lodged: English

Parties

Applicant: Geemarc Telecom International Ltd (Wanchai, Hong Kong) (represented by: G. Farrington, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Audioline GmbH (Neuss, 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 20 November 2009 in case R 913/2009-2; and

—	Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘AMPLIDECT’ for goods in classes 9 and 16

Proprietor of the Community trade mark: The applicant

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

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Granted the appeal and, as a result, cancelled the registered Community trade mark subject of the application for a declaration of invalidity

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation 207/2009, as the Board of Appeal: (i) failed to take into account that the other party to the proceedings before the Board of Appeal had failed to adduce evidence of lack of distinctive character of the registered Community trade mark subject of the application for a declaration of invalidity; and (ii) failed to take into account that the registered Community trade mark subject of the application for a declaration of invalidity has acquired an enhanced distinctiveness through the level of use made of it; the Board of Appeal failed to restrict itself to an examination of the evidence and arguments provided by the parties within the time line set by the Board of Appeal.

17.4.2010

Official Journal of the European Union

C 100/57

Action brought on 10 February 2010 — Jackson International v OHIM — Royal Shakespeare (ROYAL SHAKESPEARE)

(Case T-60/10)

2010/C 100/85

Language in which the application was lodged: English

Parties

Applicant: Jackson International Trading Company Kurt D. Brühl Gesellschaft m.b.H. & Co. KG (Graz, Austria) (represented by: S. Di Natale and H.G. Zeiner, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Royal Shakespeare Company (Stratford-upon-Avon, United Kingdom)

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 19 November 2009 in case R 317/2009-1; and

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘ROYAL SHAKESPEARE’ for goods and services in classes 32, 33 and 42

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration of the word mark ‘RSC-ROYAL SHAKESPEARE COMPANY’, for services in class 41; United Kingdom trade mark registration of the figurative mark ‘RSC ROYAL SHAKESPEARE COMPANY’, for services in class 41; non-registered trade mark ‘ROYAL SHAKESPEARE COMPANY’, used in the course of trade in the United Kingdom for various services.

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and, as a result, declared invalid the registered Community trade mark subject of the application for a declaration of invalidity

Pleas in law: Infringement of Article 8(5) of Council Regulation 207/2009, as the Board of Appeal wrongly concluded that the conditions for the application of the said provision have been met.

17.4.2010

Official Journal of the European Union

C 100/58

Action brought on 8 February 2010 — Victoria Sánchez v Parliament and Commission

(Case T-61/10)

2010/C 100/86

Language of the case: Spanish

Parties

Applicant: Fernando Marcelino Victoria Sánchez (Sevilla, Spain) (represented by: N. Domínguez Varela, lawyer)

Defendants: European Parliament and European Commission

Form of order sought

—	A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation.

Pleas in law and main arguments

On 28 August 2008 the applicant submitted a petition to the Committee on Petitions of the Parliament relating to an alleged corruption network in Spain in the field of social security and public health. On 3 May 2009 the President of that committee informed him that no further action would be taken as regards his petition.

On 6 December 2009 the applicant sent a letter to the European Parliament and the European Commission, pursuant to Article 265 TFEU, calling upon them to act. In that letter he requested that:

—	the European Parliament annul the decision of 3 May 2009 of the President of the Committee on Petitions and investigate the circumstances in which that decision was adopted;

—	the European Commission also undertake an investigation into the administration of justice in Spain.

Since he did not receive a response within the time-limit laid down to that end, the applicant brought this action for failure to act.

In support of his claims, the applicant submits that his fundamental rights have been infringed, namely his right to submit a petition, his right to equality before the law and his right to not be discriminated against. He also submits that the conditions have been met for the defendant institutions to be found to have failed to act.

17.4.2010

Official Journal of the European Union

C 100/59

Action brought on 11 February 2010 — Spain v Commission

(Case T-65/10)

2010/C 100/87

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

Defendant: European Commission

Form of order sought

—	Annul Commission Decision C(2009) 9270 final of 30 November 2009 reducing the aid from the European Regional Development Fund (ERDF) to the Operational Programme for Andalusia ‘Objective 1’ (1994-1999) in Spain granted under Decision C(94) 3456 of 9 December 1994, ERDF NO 94.11.09.001, and

—	order the Commission to pay the costs.

Pleas in law and main arguments

By the present action the Kingdom of Spain challenges the above mentioned decision. In support of its action, the Kingdom of Spain raises the following pleas in law:

—

Infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, (1) by using the extrapolation method in the contested decision since that article does not provide for the possibility to extrapolate from the irregularities found in specific actions the irregularity of all the actions included in the Operational Programmes financed by the ERDF from. The correction applied by the Commission in the contested decision lacks a legal basis because, pursuant to the judgment in Case C-443/97 Kingdom of Spain v Commission [2000] ECR I-2415, the Commission’s internal guidelines of 15 October 1997 concerning net financial corrections in the context of the application of Article 24 of Council Regulation (EEC) No 4253/88 cannot produce legal effects vis-à-vis the Member States, and because Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988 only provides for the reduction of aid in respect of which an irregularity has been determined in the course of an examination. The application of corrections by extrapolation contradicts that principle.

—

In the alternative, infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, in conjunction with Article 4(3) TEU (principle of cooperation in good faith), by applying the correction by extrapolation in spite of the fact that it was not shown that the management, control and auditing system in relation to the amended contracts was insufficient, given that the managing bodies applied Spanish law which has not been declared contrary to European Union law by the Court of Justice. The Kingdom of Spain claims that the fact that the managing authorities adhere to national law, even if that may result in the Commission finding irregularities or specific infringements of European Union law, cannot serve as a basis to extrapolate the ineffectiveness of the management system where the law applied by those bodies has not been declared contrary to European Union law by the Court of Justice and the Commission has not brought an action for failure to act against the Member State pursuant to Article 258 TFEU.

—

In the further alternative, infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988 since the sample used for the application of the financial correction by extrapolation was not representative. The Commission composed the sample by extrapolating from a very reduced number of projects (37 out of 5 319), without taking account of all the axes of the Operational Programme, including expenses withdrawn beforehand by the Spanish authorities, by working on the basis of the declared expenses and not the aid granted and by using an IT programme which was less than 85 % reliable. For that reason, the Kingdom of Spain claims that the sample does not satisfy the requirements of representation necessary for it to be able to be used as a basis for extrapolation.

—

The limitation period for proceedings under Article 3 of Council Regulation 2988/95 has expired. (2) Finally, the Kingdom of Spain submits that the day on which the Spanish authorities were informed of the existence of irregularities (which took place in October 2004 and for the most part concerned irregularities committed in 1997, 1998 and 1999) should constitute the starting point of the limitation period for those irregularities, in accordance with the four-year limitation period laid down in Article 3 of Regulation 2988/95.

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

17.4.2010

Official Journal of the European Union

C 100/60

Action brought on 17 February 2010 — Spain v Commission

(Case T-67/10)

2010/C 100/88

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Defendant: European Commission

Form of order sought

—	Annul Commission Decision C(2009) 9827 final of 10 December 2009 on applying financial corrections on the EAGGF Guidance part of the operational programme CCI 2000.ES.16.1.PO.007 (Spain, Castilla y León) for the measure ‘Improving processing and marketing of agricultural products’, and

—	order the Commission to pay the costs.

Pleas in law and main arguments

In the view of the Kingdom of Spain the decision should be annulled on two grounds:

First, erroneous application of Article 39 of Regulation (EC) No 1260/1999, (1) as the irregularities which provide the basis for the financial correction agreed by the Commission did not exist since the Spanish authorities carried out the appropriate controls systematically in order to meet the requirements for support laid down in Articles 26 and 28 of Regulation (EC) No 1257/1999 (2) and they did so prior to the granting of the support. In addition, contrary to what was stated by the Commission in the contested decision, the Control Plan adopted by the Spanish authorities following the inspection visit did not seek to remedy a posteriori the fact that controls were not carried out, but sought exclusively to check the efficiency of those controls.

Second, infringement of the principle of proportionality laid down in Article 39(3) of Regulation (EC) No 1260/1999, in conjunction with the Guidelines on the principles, criteria and indicative scales to be applied by Commission departments in determining financial corrections under Article 39(3) of Regulation (EC) No 1260/1999, (3) since the irregularities identified by the Commission, had they existed, which the Kingdom of Spain denies, would only justify the imposition of a financial correction proportionate to the harm which could have been caused to the Union’s funds and, therefore, less than the 5 % decided upon.

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

(2) Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).

(3) Document C(2001) 476 of 2 March 2001.

17.4.2010

Official Journal of the European Union

C 100/60

Action brought on 15 February 2010 — Sphere Time v OHIM — Punch (watches)

(Case T-68/10)

2010/C 100/89

Language in which the application was lodged: English

Parties

Applicant: Sphere Time société anonyme (Windhof, Luxembourg) (represented by: C. Jäger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Punch, société par actions simplifiée (Nice, France)

Form of order sought

—	Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 December 2009 in case R 1130/2008-3 and order the defendant to confirm the validity of the challenged Community registered design; and

—	Order the defendant to pay the costs of the present proceedings and to enact that the other party to the proceedings before the Board of Appeal bears the costs of the applicant related to the invalidity and appeal proceedings.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: A design registered for ‘watches’

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Decision of the Invalidity Division: Declared the contested Community design invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 4, 5 and 6 of Council Regulation No 6/2002, as the Board of Appeal wrongly considered the challenged design as lacking individual character and as not being new; infringement of Article 61(2) of Council Regulation No 6/2002 as the Board of Appeal has not correctly evaluated the applicant’s arguments and evidences submitted in the course of the proceedings, misinterpreted the freedom of the designer and based its decision on a false appreciation, thereby misusing its power.

17.4.2010

Official Journal of the European Union

C 100/61

Action brought on 18 February 2010 — IRO v Commission

(Case T-69/10)

2010/C 100/90

Language of the case: Italian

Parties

Applicant: Industrie Riunite Odolesi SpA (IRO) (Brescia, Italy) (represented by: A. Giardina, lawyer, P. Tomassi, lawyer)

Defendant: European Commission

Form of order sought

—	Annul Commission Decision C(2009) 7492 final of 30 September 2009 (‘the contested decision’);

—	In the alternative, cancel or reduce the fine imposed by the contested decision;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put forward in Case T-55/10 SP v Commission.

In particular, the applicant alleges:

—

Infringement of the law and misuse of powers, in so far as the Commission adopted the contested decision by which the applicant was penalised for participating in an alleged price-fixing cartel, without examining all the supporting documents because the annexes relating to the price tables were not included;

—

Infringement of the procedural rules laid down in Regulation (EC) No 1/2003, (1) in so far as, following the annulment by the Court of First Instance of Decision C(2002) 5087 final of 17 December 2002, the Commission adopted the contested decision without carrying out any procedural steps, such as sending a statement of objections to the parties and/or hearing the parties, or involving the national authorities, and accordingly the entire procedure followed by the Commission was incomplete, inconsistent and unlawful and the rights of the defence of the undertakings penalised were infringed;

—	Inadequate investigations and reasoning, in so far as the Commission did not correctly assess the information, which emerged during the investigation, concerning the size of the relevant market and the effects of the alleged cartel.

In the alternative, the applicant claims that the Court should cancel or reduce the fine imposed by the contested decision.

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

17.4.2010

Official Journal of the European Union

C 100/61

Action brought on 19 February 2010 — Feralpi Holding SpA v European Commission

(Case T-70/10)

2010/C 100/91

Language of the case: Italian

Parties

Applicant: Feralpi Holding SpA (Brescia, Italy) (represented by: G. Roberti, avvocato, I. Perego, avvocato)

Defendant: European Commission

Form of order sought

—	Annulment of the contested decision.

—	Annulment or reduction of the fine imposed by the contested decision.

—	An order that the defendant pay the costs.

Pleas in law and main arguments

Feralpi Holding raises the following pleas in law:

—	Breach of the principle of collegiality, in so far as the Commission did not submit to the College of Commissioners the full text of the contested decision including all the necessary matters of fact and law.

—	Erroneous selection of legal basis. It must be observed, in that regard, that the Commission could not base the contested decision alleging a breach of Article 65 CS on Regulation 1/2003, (1) once the ECSC Treaty ceased to be in force.

—

Breach of the rights of the defence. It is observed on this point that the Commission did not send Feralpi Holding a statement of objections and did not place in a position it to exercise its rights of defence. Moreover, the Commission imposed inappropriate terms on Feralpi Holding and obstructed its right of access.

—	Breach of the criteria for imputation of the infringement. According to the applicant, the Commission erroneously imputed the infringement to Feralpi Holding, without taking account of changes to the structure of the company made subsequently.

—

It is argued, further, that in not taking account of the interchangeability of reinforcing bars and other manufactured articles in the steel industry, such as beams and wire mesh, the Commission erroneously defined the relevant market and denied the Community dimension of the relevant geographical market without reason.

—

It is also pointed out that the Commission classified the conduct analysed in the decision as a single, complex and continuing infringement of Community competition rules, alleging that Feralpi Holding participated in that infringement, thus breaching Article 65 CS and making an error in the assessment of the facts.

Finally, the applicant states that the defendant erroneously fixed the amount of the fine.

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

17.4.2010

Official Journal of the European Union

C 100/62

Action brought on 18 February 2010 — Xeda International and Pace International v Commission

(Case T-71/10)

2010/C 100/92

Language of the case: English

Parties

Applicants: Xeda International (Saint Andiol, France) and Pace International LLC (Seattle, United States of America) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

—	declare the application admissible and well-founded;

—	annul the contested decision;

—	order the Commission to pay all the costs and expenses of these proceedings,

—	take such other further measures as justice may require.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment of Commission’s decision No 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council directive No 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance [notified under number C(2009) 9262] (OJ 2009 L 314, p. 79).

The applicants claim that, as a result of the contested decision, the first applicant will no longer be allowed to sell diphenylamine and diphenylamine-based products in the European Union and will lose its product registrations in the Member States effective as of 30 May 2010.

The applicants submit that the contested decision is unlawful because it is based on an underlying assessment of diphenylamine that is scientifically and legally flawed. According to the applicants, it infringes the Treaty on the Functioning of the European Union and secondary EU legislation.

In summary, the applicants contend that the contested decision bans the use of diphenylamine in plant protection products on the basis of three scientific concerns mentioned in recital 5 thereof, each of which was either adequately addressed by the applicants or was not a concern justifying non-inclusion.

Further, the applicants claim that the Commission infringed the applicants’ right of defence inasmuch as it prevented them from relying on the possibility to withdraw and re-submit a new dossier while benefiting from a longer phase-out period, as it was the case for other substances belonging to the same regulatory process.

17.4.2010

Official Journal of the European Union

C 100/63

Appeal brought on 17 February 2010 by Apostolov against the Order of the European Union Civil Service Tribunal made on 15 December 2009 in case Apostolov v Commission, F-8/09

(Case T-73/10 P)

2010/C 100/93

Language of the case: English

Parties

Appellant: Svetoslav Apostolov (Saarwellingen, Germany) (represented by: D. Schneider-Addae-Mensah, lawyer)

Other party to the appeal proceedings: European Commission

Form of order sought by the appellant

—	annul the Order of the European Union Civil Service Tribunal (First Chamber), dated 15 December 2009 in Case F-8/09;

—	annul the decision of the European Commission contained in the letter dated 23 October 2008;

—	oblige the European Commission and its specialised services, mainly the European Personnel Selection Office (EPSO), to count the answers given by the appellant to questions 9, 30 and 32 of the competency test of 14 December 2007 as correct;

—	in the subsidiary, allow the appellant to pass again the competency test;

—	in the subsidiary to the second, third and fourth orders sought above, remand the present case to the European Union Civil Service Tribunal; and

—	order the European Commission to pay the costs of the present proceedings and of the proceedings before the European Union Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the Order to the European Union Civil Service Tribunal (EUCST) of 15 December 2009, delivered in Case F-8/09 Apostolov v Commission, by which the EUCST dismissed as inadmissible the action by which the appellant had sought annulment of a decision of the Commission of 21 October 2008 by which the European Personnel Selection Office (EPSO) dismissed his complaint against the decision of 25 April 2008 informing him that the marks he had been given in the selection tests held in connection with the call for expression of interest EPSO/CAST27/4/07 were not sufficient for him to be included in the database of eligible candidates.

In support of his appeal, the appellant submits, principally, that there was confusion as far as the time-limit for his application was concerned and that, as a result, there was an excusable error which rendered the application filed by the appellant with the EUCST on 9 July 2009 admissible.

The appellant also submits that EPSO has committed a manifest error of appreciation of certain answers given by the appellant in the framework of the selection tests held in connection with the call for expression of interest EPSO/CAST27/4/07. The appellant further submits that EPSO had chosen a completely wrong procedure of testing candidates in order to ensure a correct selection procedure.

17.4.2010

Official Journal of the European Union

C 100/64

Action brought on 16 February 2010 — Flaco Geräte v OHIM — Delgado Sánchez (FLACO)

(Case T-74/10)

2010/C 100/94

Language in which the application was lodged: English

Parties

Applicant: Flaco Geräte GmbH (Gütersloh, Germany) (represented by: M. Wirtz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Jesús Delgado Sánchez (Socuellamos, Spain)

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 23 November 2009 in case R 86/2009-2; and

—	Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FLACO’, for goods in classes 7, 8, 9 and 11

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: Spanish trade mark registration of the mark ‘FLACO’, for goods in class 7

Decision of the Opposition Division: Partially rejected the application for the Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 207/2009 as the Board of Appeal wrongly took into account a wrong translation of the goods covered by the mark cited in the opposition proceedings; infringement of Article 42(2) and (3) of Council Regulation No 207/2009 as the Board of Appeal did not take into account the plea of non use filed by the applicant.

17.4.2010

Official Journal of the European Union

C 100/64

Action brought on 24 February 2010 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE)

(Case T-81/10)

2010/C 100/95

Language in which the application was lodged: Spanish

Parties

Applicant: Tempus Vade, S.L. (Madrid, Spain) (represented by: A. Gómez López, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Palacios Serrano (Alcobendas, Spain)

Form of order sought

—

Declare that the decision of 7 January 2010 of the Fourth Board of Appeal of OHIM in Case R 944/2006-1 does not comply with Regulation (EC) No 207/2009 on the Community trade mark, in so far as it annuls the decision of the Opposition Division of OHIM of 28 May 2008, made in opposition proceedings No B 1009607 and, accordingly, registers Community trade mark No 5 016 704 AIR FORCE in respect of goods in Class 14.

—	Declare that registration of the Community trade mark No 5 016 704 AIR FORCE is refused pursuant to the prohibition on registration provided for in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009.

—	Order the defendant and, if appropriate, the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Juan Palacios Serrano.

Community trade mark concerned: Word mark ‘AIR FORCE’ (application No 5 016 704) in respect of goods in Class 14.

Proprietor of the mark or sign cited in the opposition proceedings: Tempus Vade, S.L.

Mark or sign cited in opposition: Community word mark ‘TIME FORCE’ (application No 395 657) in respect of goods in Classes 14, 18 and 25; and four other Community figurative marks which contain the word element ‘TIME FORCE’: application No 398 776 in respect of goods in Class 14, 18 and 25; application No 3 112 133 in respect of goods in Classes 3, 8, 9, 14, 18, 25, 34, 35 and 37, and applications Nos 1 998 375 and 2 553 667 in respect of goods in Class 14.

Decision of the Opposition Division: Opposition upheld in its entirety.

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition.

Pleas in law: Incorrect application of Article 8(1)(b) and (5) of Regulation No 207/2009 on the Community trade mark.

17.4.2010

Official Journal of the European Union

C 100/65

Action brought on 19 February 2010 — Riva Fire SpA v European Commission

(Case T-83/10)

2010/C 100/96

Language of the case: Italian

Parties

Applicant: Riva Fire SpA (Milan, Italy) (represented by: M. Merola, avvocato, M. Pappalardo, avvocato, T. Ubaldi, avvocato)

Defendant: European Commission

Form of order sought

As a principal claim

—	Annulment in its entirety of the Decision if it emerges from the investigation in the case that all the matters of fact and law underlying the Decision were not put before the College of Commissioners for the purposes of its adoption;

—

Annulment, in any event, of Article 1 of the Decision in so far as it declares that the applicant participated in a cartel and/or concerted practices regarding concrete reinforcing bar in bars or coils with the object or effect of fixing prices and limiting and/or controlling output or sales in the common market;

—	Annulment, in consequence, of Article 2 of the Commission Decision in so far as it imposes a fine of EUR 26.9 million on the applicant;

In the alternative:

—	Reduction of the amount of the fine of EUR 26.9 million imposed on the applicant by Article 2 of the Decision and re-setting of the fine.

And, in any event,

—	An order that the Commission pay the costs of these proceedings.

Pleas in law and main arguments

The applicant seeks annulment of the Decision of the Commission of the European Communities C(2009) 7492 fin. of 30 September 2009 relating to a proceeding under Article 65 of the ECSC Treaty (COMP/37.956 — reinforcing bars, re-adoption), as supplemented and amended by the Decision of the European Commission C(2009) 9912 fin. of 8 December 2009. In support of its application the company relies on eight pleas.

By its the applicant argues that the Commission has no authority to declare an infringement of Article 65(1) CS in relation to facts falling within the scope of that provision after the ECSC Treaty ceased to be in force and to impose a penalty on the basis of Articles 7(1) and 23(2) of Regulation No 1/2003 (1) although those provisions refer solely to infringements of Articles 81 and 82 EC (now, Articles 101 and 102 TFEU).

By its the applicant asserts that the contested decision breaches Article 10(3) and (5) of Regulation (EEC) No 17/62 (2) and Article 14(1) and (3) of Regulation (EC) No 1/2003 because it is not apparent from the Decision whether the Commission undertook the required consultation of the Advisory Committee as required by those articles and whether that committee obtained all the necessary information for a full assessment of the substance of the infringement imputed to the undertakings to which the Decision was addressed.

By its the applicant maintains that the Commission breached Article 36(1) CS in that, by refusing to disclose the criteria it used to determine the fines to be imposed, it limited the opportunity for the addressees of the objections to submit observations.

By its the applicant argues that the contested decision breaches Articles 10 and 11 of Commission Regulation No 773/2004, (3) as fully amended by the Commission, and the rights of defence of the undertakings concerned because, following the annulment of the Commission’s original decision by the General Court, the Commission went on to re-adopt the contested decision without sending to the undertakings any further statement of objections.

By its the applicant complains of shortcomings and inconsistencies in the grounds for the decision, in so far as, on the one hand, the relevant geographical market is defined as the Italian Republic and, on the other hand, it is maintained that the alleged agreement is liable to have an effect on Community trade for the purposes of the application of the principle of lex mitior.

By its the applicant argues that the Commission’s analysis, as set out in the Decision, is vitiated by certain errors of assessment of the facts, resulting in misapplication of Article 65 CS in relation to various aspects of the contested infringement, including, in particular, the parts of the agreement regarding the fixing of the basic price of the bars, the fixing of the price supplement for larger dimensions and the limitation or control of output and/or sales.

By its the applicant argues that the contested decision is erroneous and states insufficient grounds (inter alia as a result of inadequate investigation) as regards the imputation of the infringement as a whole to the applicant.

By its the applicant alleges a breach of Article 23(2) of Regulation (EC) No 1/2003, of the 1996 Leniency Notice of the Commission and of the Commission’s 1998 Guidelines on the method of setting fines.

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

(2) EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, I, 1959-1962, p. 87).

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

17.4.2010

Official Journal of the European Union

C 100/66

Action brought on 18 February 2010 — Alfa Acciai SpA v European Commission

(Case T-85/10)

2010/C 100/97

Language of the case: Italian

Parties

Applicant(s): Alfa Acciai SpA (Brescia, Italy) (represented by: D. Fosselard, avvocato, S. Amoruso, avvocato, L. Vitolo, avvocato)

Defendant(s): European Commission

Form of order sought

—

Annulment of Commission Decision C(2009) 7492 fin. of 30 September 2009 (COMP/37.956 — reinforcing bars, re-adoption) (‘the Decision’), as supplemented and amended by the Decision of the European Commission C(2009) 9912 fin. of 8 December 2009, in so far as it declares an infringement of Article 65 CS by Alfa Acciai S.p.A and imposes a fine of EUR 7 175 million;

In the alternative:

—	Annulment of Article 2 of the Decision which imposes a fine on the applicant;

In the further alternative:

—	Reduction of the fine;

—	An order that the defendant pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-70/10 Feralpi Holding Spa v Commission and Case T-83/10 Riva Fire Spa v Commission.

In particular, the applicant argues

Lack of authority of the Commission to impose penalties for breach of Article 65 CS once that Treaty ceased to be in force and in any event to use Articles 7(1) and 23(2) of Regulation EC No 1/2003 (1) as a legal basis.

The infringement of the rights of the defence of the applicant in the preceding administrative procedure in so far as the Commission did not send a further statement of objections but confined itself to giving notice by letter of its intention to re-adopt the Decision. The Member States were not heard and did not participate in a final hearing and it was made impossible for the applicant to state its own position in view of the re-adoption of the Decision.

Infringement of Article 65(1) CS in so far as the facts described in the Decision do not constitute a single continuing agreement.

Infringement of the Guidelines for setting fines pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003, and infringement of the principles of equality and proportionality in the assessment of the conduct of the applicant and in setting the amount of the fine.

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

17.4.2010

Official Journal of the European Union

C 100/67

Action brought on 24 February 2010 — Republic of Hungary v European Commission

(Case T-89/10)

2010/C 100/99

Language of the case: Hungarian

Parties

Applicant: Republic of Hungary (represented by: J. Fazekas, M.Z. Fehér, K. Szíjjártó, agents)

Defendant: European Commission

Form of order sought

—

Annulment of Article 1(3) and (4) of and Annexes I, point 3.3, and II of Commission Decision [C(2009)10151] concerning the major project ‘M43 Motorway between Szeged and Makó’, forming part of the operational programme ‘Transport’ for Union structural assistance from the European Regional Development Fund and the Cohesion Fund under the Convergence objective in the Republic of Hungary, insofar as those provisions exclude payments of value added tax from eligible expenditure.

—	An order that the Commission pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision [C(2009)10151] concerning the major project ‘M43 Motorway between Szeged and Makó’, forming part of the operational programme ‘Transport’ for Union structural assistance from the European Regional Development Fund and the Cohesion Fund under the Convergence objective. In that Decision the Commission authorised the grant of a contribution from the Cohesion Fund to that major project. Furthermore, under the section on ‘Non-eligible expenditure’ in Annex I to the contested Decision the Commission refused the proposal of the Hungarian authorities to include payments of value added tax in the project concerned.

In the grounds for its application the applicant states that, in adopting the contested Decision, the Commission infringed the relevant provisions of European Union law, in particular Article 56(4) of Regulation (EC) No 1083/2006 (1) and Article 3 of Regulation (EC) No 1084/2006. (2)

The applicant considers that Article 3(e) of Regulation No 1084/2006 clearly establishes that recoverable value added tax is not eligible for support in the form of a contribution from the Cohesion Fund. In the opinion of the applicant it follows unequivocally from that provision that non-recoverable value added tax is eligible for support. Accordingly, having regard to the fact that, under European Union or national law on value added tax the beneficiary of the major project which is the subject of the Decision is not a taxable person, so that it cannot claim back the input value added tax charged to it, the applicant argues that, in the contested Decision, it is not open to the Commission to exclude expenditure arising from that tax.

Furthermore, the applicant complains that, given that the Commission did not consider to be eligible the expenditure which Regulation No 1084/2006 did not include under eligible expenditure whereas the equivalent national legislation expressly mentioned it as eligible expenditure, by the contested Decision, the Commission was depriving the Member States of the powers devolved on them by Article 56(4) of Regulation No 1083/2006.

The applicant also alleges that the Commission's assertion that the value added tax charged to the beneficiary will be ‘recoverable’ through the value added tax paid on the fee collected by the management of the infrastructure built by the beneficiary is a very wide interpretation of the concept of ‘recoverable value added tax’ used in Article 3(e) of Regulation No 1084/2006, which the wording of that provision does not support, and is, moreover, contrary to the legislation of the European Union on value added tax.

Finally, the applicant states that neither Regulation No 1083/2006 nor Regulation No 1084/2006 allows an interpretation to the effect that the Commission, when assessing eligible expenditure, including eligible value added tax, could base its decision on the fact that the Member State could have opted for a different legal solution as regards the organisation of the project and the management of the infrastructure. In the opinion of the applicant, running the administration of national infrastructures and related public services is, essentially, the task of the Member States. In that regard, the applicant points out that, provided that they comply with the requirements laid down by the legislation of the Union, the Commission has to accept the option chosen by the Member State, together with the consequences for the assessment of eligible expenditure entailed by the beneficiary’s status as a taxable person or non-taxable person.

(1) Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

(2) Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJ 2006 L 210, p. 79).

		ISSN 1725-2423 doi:10.3000/17252423.C_2010.100.eng
Official Journal of the European Union		C 100

English edition	Information and Notices	Volume 53 17 April 2010

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice
2010/C 100/01	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 80, 27.3.2010	1