9.10.2010

Official Journal of the European Union

C 274/2

Judgment of the Court (Second Chamber) of 10 June 2010 (reference for a preliminary ruling from the Corte d’appello di Roma (Italy)) — Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno, Massimo Pettini (C-395/08), Daniela Lotti, Clara Matteucci (C-396/08)

(Joined Cases C-395/08 and C-396/08) (1)

(Directive 97/81/EC - Framework Agreement on part-time work - Equal treatment of part-time and full-time workers - Calculation of the period of service required to obtain a retirement pension - Periods not worked disregarded - Discrimination)

2010/C 274/02

Language of the case: Italian

Referring court

Corte d’appello di Roma

Parties to the main proceedings

Applicant: Istituto nazionale della previdenza sociale (INPS)

Defendants: Tiziana Bruno, Massimo Pettini (C-395/08), Daniela Lotti, Clara Matteucci (C-396/08)

Re:

Reference for a preliminary ruling — Corte d’appello di Roma (Italy) — Interpretation of Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Annex: Framework agreement on part-time work (OJ 1998 L 14, p. 9) — Part-time workers working some months of the year and resting in the other months — Exclusion of periods not worked in the calculation of pension rights

Operative part of the judgment

With regard to retirement pensions, Clause 4 of the Framework Agreement on part-time work annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC must be interpreted as precluding national legislation which, for vertical-cyclical part-time workers, disregards periods not worked in calculating the period of service required to qualify for such a pension, unless such a difference in treatment is justified on objective grounds.

2.	If the referring court reached the conclusion that the national legislation at issue in the main proceedings is incompatible with Clause 4 of the Framework Agreement, Clauses 1 and 5(1) of the agreement would have to be interpreted as also precluding such legislation.

(1) OJ C 327, 20.12.2008.

9.10.2010

Official Journal of the European Union

C 274/2

Reference for a preliminary ruling from the Landesgericht Innsbruck (Austria) lodged on 14 June 2010 — Gebhard Stark v D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG

(Case C-293/10)

()

2010/C 274/03

Language of the case: German

Referring court

Landesgericht Innsbruck

Parties to the main proceedings

Applicant: Gebhard Stark

Defendant: D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG

Question referred

Is Article 4(1) of Directive 87/344/EEC (1) to be interpreted as precluding a provision such as Paragraph 158k(2) of the Versicherungsvertragsgesetz (Law on insurance contracts) and a clause, based on that law, contained in the general conditions of insurance applied by a legal expenses insurer to the effect that it may be stipulated in the insurance contract that the insured person may select to represent him only persons professionally authorised to represent parties who have their chambers at the place of the court or administrative authority before which the proceedings at first instance are to be conducted?

(1) Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987, L 185, p. 77).

9.10.2010

Official Journal of the European Union

C 274/3

Reference for a preliminary ruling from the Landesarbeitsgericht Köln (Germany) lodged on 29 June 2010 — Land Nordrhein-Westfalen v Melanie Klintz

(Case C-312/10)

()

2010/C 274/04

Language of the case: German

Referring court

Landesarbeitsgericht Köln

Parties to the main proceedings

Applicant: Land Nordrhein-Westfalen

Defendant: Melanie Klintz

Questions referred

Question 1

(a)

When conducting a legal assessment as to whether an agreement for the renewal of a fixed-term contract is justified in a particular case for objective reasons within the meaning of Clause 5(1)(a) of the framework agreement on fixed-term work in the Annex to Council Directive 1999/70/EC of 28 June 1999, (1) is it compatible with the spirit and purpose of Clause 5(1) of the framework agreement to have reference only to circumstances obtaining at the date of conclusion of that renewal agreement without having regard to how many fixed-term contracts have already preceded that agreement, or

(b)

Does the spirit and purpose of Clause 5(1)(a) of the framework agreement, which is to prevent abuse arising from the use of consecutive short-term employment contracts, necessitate the imposition of stricter requirements in relation to ‘objective reasons’ the greater the number of successive fixed-term employment contracts that have already preceded the one that is to be assessed or the longer the period during which the employee concerned has already been employed under successive fixed-term contracts?

Question 2

Does Clause 5(1) of the framework agreement on fixed-term work preclude the application of a provision of national law such as Paragraph 14(1)(7) of the Law on part-time working and fixed-term contracts (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, ‘the TzBfG’) which justifies successive fixed terms of employment contracts in the public sector alone for the ‘objective reason’ that the employee is paid out of budgetary funds provided for fixed-term employment, whereas in the case of employers in the private sector such economic reasons are not recognised as ‘objective reasons’?

Question 3

(a)

Is the provision on fixed-term contracts referred to in the second question (Paragraph 14(1)(7) TzBfG) compatible with the framework agreement if the budgetary rule to which Paragraph 14(1)(7) TzBfG refers constitutes a sufficiently specific purpose for the fixed term with a particular connection to the activity in question and the conditions under which it is carried out (see second paragraph of the summary of the judgment in Case C-212/04 Adeneler [2006] ECR I 6057)?

If Question 3(a) is answered in the affirmative:

(b)

Is there such a sufficiently specific purpose if the budgetary rule, such as Paragraph 7(3) of the Gesetz über die Feststellung der Haushaltspläne des Landes Nordrhein-Westfalen (Law determining the budget of the Land of North-Rhine Westphalia, ‘HG 2004/2005’) in this case, merely provides that the budgetary funds are intended for a fixed-term activity as ‘temporary staff’?

If Question 3(b) is answered in the affirmative:

(c)

Does this apply even if the activity of ‘temporary staff’ in this sense is understood to mean not only an activity that serves to cover either a temporary increase in work or the temporary loss of a core member of staff but also where the term ‘temporary staff’ is also deemed applicable if the employee is paid out of budgetary funds that are available because of the temporary loss of a core member of staff working in the same department, although the ‘temporary staff’ member is employed to do work that is categorised as falling within the ambit of the employer’s fixed and permanent needs and has no substantive connection with the activity of the core member of staff lost, or

(d)

Does interpretation of the term ‘temporary staff’ in the manner described in Question 3(c) run counter to the spirit and purpose of the framework agreement on fixed-term work, which is to prevent abuse arising from the use of consecutive short-term employment contracts, and to the principle, laid down in Angelidaki (second paragraph of the summary of the judgment in Joined Cases C-378/07 to C-380/07 [2009] ECR I-3071), that Clause 5(1)(a) of the framework agreement on fixed-term work precludes the application of national legislation ‘in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by objective reasons within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent’?

Question 4

Is a Member State in breach of Clause 8(3) of the framework agreement on fixed-term work if it introduces into its national legislation implementing Directive 1999/70/EC a budgetary reason for a fixed term such as that described in Question 2, which is of general application to the whole of its public sector but under its national legal system prior to the adoption of Directive 1999/70/EC only existed in comparable form in small pockets of the public sector (higher education)? Does such a breach mean that the national rule can no longer be applied?

(1) OJ 1999 L 175, p. 43.

9.10.2010

Official Journal of the European Union

C 274/4

Reference for a preliminary ruling from the Landesarbeitsgericht Köln (Germany) lodged on 29 June 2010 — Land Nordrhein-Westfalen v Sylvia Jansen

(Case C-313/10)

()

2010/C 274/05

Language of the case: German

Referring court

Landesarbeitsgericht Köln

Parties to the main proceedings

Applicant: Land Nordrhein-Westfalen

Defendant: Sylvia Jansen

Questions referred

Question 1

(a)

When conducting a legal assessment as to whether an agreement for the renewal of a fixed-term contract is justified in a particular case for objective reasons within the meaning of Clause 5(1)(a) of the framework agreement on fixed-term work in the Annex to Council Directive 1999/70/EC of 28 June 1999, is it compatible with the spirit and purpose of Clause 5(1) of the framework agreement to have reference only to circumstances obtaining at the date of conclusion of that renewal agreement without having regard to how many fixed-term contracts have already preceded that agreement, or

(b)

Question 2

Question 3

(a)

If Question 3(a) is answered in the affirmative:

(b)

If Question 3(b) is answered in the affirmative:

(c)

(d)

Does interpretation of the term ‘temporary staff’ in the manner described in Question 3(c) run counter to the spirit and purpose of the framework agreement on fixed-term work, which is to prevent abuse arising from the use of consecutive short-term employment contracts, and to the principle, laid down in Angelidaki (second paragraph of the summary of the judgment in Joined Cases C-378/07 to C-380/07 [2009] ECR I 3071), that Clause 5(1)(a) of the framework agreement on fixed-term work precludes the application of national legislation ‘in such a way that the renewal of successive fixed-term employment contracts in the public sector is deemed to be justified by “objective reasons” within the meaning of that clause solely on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to meet certain temporary needs when, in fact, those needs are fixed and permanent’?

Question 4

9.10.2010

Official Journal of the European Union

C 274/6

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 5 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas

(Case C-324/10)

()

2010/C 274/07

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Gebr. Stolle GmbH & Co. KG

Defendant: Hauptzollamt Hamburg-Jonas

Questions referred

1.	Is an ‘irregular composition’ within the meaning of product code 0207 1290 9990 characterised by the fact that a maximum total number of four of the giblets there stated may be — singly or more than once — inserted inside the carcase?

2.	If the answer to the first question should be in the affirmative: does subheading 0207 12 10 (1) also cover carcases inside which one of the giblets stated in that subheading has been inserted more than once?

(1) OJ 1998 L 322, p. 31.

9.10.2010

Official Journal of the European Union

C 274/6

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 6 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas

(Case C-326/10)

()

2010/C 274/09

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Gebr. Stolle GmbH & Co. KG

Defendant: Hauptzollamt Hamburg-Jonas

Questions referred

1.	Does a poultry carcase come under CAP Goods List number 0207 1290 9990 (1) even if a part of the poultry that is not permitted under that product code adheres to giblets that are permitted?

2.	If the answer to the first question should be in the negative: when a customs office examines whether export products comply with the CAP Goods List number stated in the export declaration is a margin of error to be allowed so that a so-called ‘anomaly’ is not detrimental to a refund?

(1) OJ 1998 L 322, p. 31.

9.10.2010

Official Journal of the European Union

C 274/7

Reference for a preliminary ruling from the Curtea de Apel Craiova (Romania) lodged on 6 July 2010 — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu v Claudia Norica Vijulan

(Case C-335/10)

()

2010/C 274/10

Language of the case: Romanian

Referring court

Curtea de Apel Craiova

Parties to the main proceedings

Appellants: Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu

Respondent: Claudia Norica Vijulan

Questions referred

Is the first paragraph of Article 110 TFEU (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax governed by Government Emergency Order No 50/2008, as amended by Government Emergency Order No 218/2008, from which motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, are exempt, as are all motor vehicles in category N1 and pollution class Euro 4 which were registered for the first time in Romania or in another Member State between 15 December 2008 and 31 December 2009, but which applies to similar or competing second-hand motor vehicles from other Member States which were registered before 15 December 2008, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods, thus protecting the domestic manufacture of new motor vehicles?

Is the first paragraph of Article 110 TFEU (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax introduced by Government Emergency Order No 50/2008, as amended by Government Emergency Order No 218/2008, from which motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, are exempt, as are all motor vehicles in category N1 and pollution class Euro 4 which were registered for the first time in Romania or in another Member State between 15 December 2008 and 31 December 2009, but which applies to motor vehicles with different technical characteristics from those indicated which were registered during the same period in other Member States, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods, thus protecting the domestic manufacture of new motor vehicles?

9.10.2010

Official Journal of the European Union

C 274/7

(Case C-336/10)

()

2010/C 274/11

Language of the case: Romanian

Referring court

Curtea de Apel Craiova

Parties to the main proceedings

Applicants: Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului Pentru Mediu

Defendant: Victor Vinel Ijac

Question referred

Is the first paragraph of Article 110 TFEU (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax governed by Government Emergency Order No 50/2008, which levies a pollution tax on the registration in Romania of imported second-hand motor vehicles already registered in other Member States of the European Union, while that tax is not levied on second-hand motor vehicles registered in Romania in the event of their re-sale and consequent re-registration, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods?

9.10.2010

Official Journal of the European Union

C 274/8

Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-109/08 Freixenet v OHIM

(Case C-344/10 P)

()

2010/C 274/12

Language of the case: French

Parties

Appellant: Freixenet, SA (represented by: F. de Visscher, E.Cornu and D. Moreau, lawyers)

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

Form of order sought

—

principally: set aside the judgment of the General Court of 27 April 2010 and annul the decision of the First Board of Appeal of OHIM of 30 October 2007, and decide that the application for Community trade mark No 32 532 satisfies the conditions for publication under Article 40 of Regulation No 40/94 (now Article 39 of Regulation No 207/2009);

—	in the alternative, set aside the judgment of the General Court of 27 April 2010;

—	in any event, order OHIM to pay the costs.

Pleas in law and main arguments

The appellant relies on the following three pleas in support of its appeal.

By its first plea, the appellant essentially alleges an infringement of the rights of the defence and the right to a fair hearing, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 73 (second sentence) and 38(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) (now Articles 75 (second sentence) and 37(3) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark). (2)

The first part of this plea alleges the breach of the audi alteram partem rule. According to the appellant, contrary to what the General Court found in the judgment under appeal, the First Board of Appeal of OHIM, in the decision that was brought before the General Court, undertook a new appraisal of the distinctive character of the appellant’s trade mark without allowing the appellant to make observations on that new appraisal. In this respect the reasons given by the General Court in support of the decision of the First Board of Appeal are incorrect and insufficient in the light of the principle of procedural fairness and respect for the rights of the defence. The judgment under appeal furthermore infringes the principle of the rights of the defence and procedural fairness, in deciding that the Office could communicate to the appellant a series of facts, indicating that it would base its refusal decision on those facts and then, after receiving the appellant’s written observations on those facts, decided, at least in part, to disregard them and to found its decision on an evaluation that was factually and conceptually different, without giving the appellant the opportunity to submit any observations.

In the second part, the appellant principally alleges a breach by the General Court of the requirement to state reasons, in that the judgment under appeal could not consider that a sufficient statement of reasons was given for the decision of the First Board of Appeal on the application of Article 7(1)(b), a decision which does not specify any of the documents upon which it seeks to rely, and could not consider that it was unnecessary to refer to items of evidence because the First Board of Appeal allegedly relied upon “deductions made from practical experience”. Furthermore, the uncertainty of the facts and the documents upon which the Office and the General Court relied affect both the rights of the defence and the requirement under Article 73 of Regulation No 40/94 to state reasons.

By its second plea, the appellant argues a breach by the General Court of Article 7(1)(b) of Regulation No 40/94. Although the appellant established, supported by documents, that the trade mark applied for consists of a combination of very characteristic elements which distinguish it significantly from the presentation of other products on the market, the General Court, in finding that the trade mark applied for did not have any distinctive character, only referred to the vague and general denials of the Office. The General Court was stricter in its appraisal of the distinctive character of the trade mark in question than in the case of other more traditional trade marks. The judgment under appeal thus infringed the obligation to carry out a specific assessment of the distinctive character of a trade mark. Moreover, in finding that the great majority of consumers do not perceive the original appearance of the trade mark as a useful factor in determining the origin of the sparkling wine in question, but prefer to refer to the label, the General Court ruled out the protection of the shape of a product’s packaging, even though that possibility is expressly envisaged by Article 4 of the Regulation.

By its third plea, the appellant alleges a breach by the General Court of Article 7(3) of Regulation No 40/94 in that the judgment under appeal imposes a requirement that the trade mark applied for has acquired a distinctive character through use in each of the Member States of the European Union. By refusing to acknowledge recognition of its distinctive character through its use by a significant proportion of the relevant class of persons, whilst at the same time acknowledging that the appellant’s trade mark had at least acquired such character in Spain, the General Court formulated a rule that was excessive and incorrect in the light of the Regulation.

(1) OJ 1994, L 11, p. 1.

(2) OJ 2009, L 78, p. 1.

9.10.2010

Official Journal of the European Union

C 274/9

Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-110/08 Freixenet v OHIM

(Case C-345/10 P)

()

2010/C 274/13

Language of the case: French

Parties

Appellant: Freixenet, SA (represented by: F. de Visscher, E.Cornu and D. Moreau, lawyers)

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

Form of order sought

—

principally: set aside the judgment of the General Court of 27 April 2010 and annul the decision of the First Board of Appeal of OHIM of 20 November 2007, and decide that the application for Community trade mark No 32 540 satisfies the conditions for publication under Article 40 of Regulation No 40/94 (now Article 39 of Regulation No 207/2009);

—	in the alternative, set aside the judgment of the General Court of 27 April 2010;

—	in any event, order OHIM to pay the costs.

Pleas in law and main arguments

The appellant relies on the following three pleas in support of its appeal.

(1) OJ 1994, L 11, p. 1.

(2) OJ 2009, L 78, p. 1.

9.10.2010

Official Journal of the European Union

C 274/10

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 12 July 2010 — Zollamt Linz Wels

(Case C-351/10)

()

2010/C 274/14

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Zollamt Linz Wels

Defendant: Unabhängiger Finanzsenat Außenstelle Salzburg

Intervening party: LAKI D.O.O.E.L

Questions referred

Is Article 558(1) in conjunction with Article 555(1)(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 (‘the Customs Code Implementing Provisions’), (1) as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001, to be interpreted as meaning that there is an unauthorised use of a means of transport in internal traffic as soon as the means of transport is loaded and the transport operation begins, in cases where authorisation has been granted for a vehicle for commercial use to be employed in internal traffic between two Member States, the vehicle is loaded in one of the two Member States but the destination (the planned place of unloading) is situated in a Member State other than those two Member States and authorisation has not been granted in respect of that other Member State?

If the answer to the first question is in the affirmative, is Article 204(1)(a) in conjunction with Article 215 of Council Regulation (EEC) No 2913/92 (2) of 12 October 1992 (‘the Customs Code’) to be interpreted as meaning that, in the abovementioned circumstances, the customs debt is incurred in the Member State of loading and that that Member State is responsible for collecting the import duties, even though it is established only upon unloading that the transport operation took place in a Member State in respect of which there is no authorisation for use in internal traffic?

Furthermore, if the answer to the first question is in the affirmative, is Article 61 of Council Directive 2006/112/EC of 28 November 2006 (3) on the common system of value added tax to be interpreted as meaning that, in the abovementioned circumstances, importation takes place in the Member State of loading and that that Member State is responsible for collecting the import turnover tax, even though it is established only upon unloading that the transport operation took place in a Member State in respect of which there is no authorisation for use in internal traffic?

(1) OJ 1993 L 253, p. 1.

(2) OJ 1992 L 302, p. 1.

(3) OJ 2006 L 347, p. 1.

9.10.2010

Official Journal of the European Union

C 274/11

Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 19 July 2010 — Scrl Intercommunale Intermosane, ABSL Fédération de l’Industrie et du Gaz (Synergrid) v Belgian State

(Case C-361/10)

()

2010/C 274/15

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicants: Scrl Intercommunale Intermosane, ABSL Fédération de l’Industrie et du Gaz (Synergrid)

Defendant: Belgian State

Questions referred

Do national regulations such as Articles 8 to 13 of the Royal Decree of 2 June 2008 concerning the minimum safety requirements for certain old electrical installations at places of work, which lay down requirements relating to the carrying out of electrical installations, the design of electrical equipment and forms of protection attached to that equipment in order to ensure the safety of workers, constitute technical regulations within the meaning Article 1(11) of Directive 98/34/EC 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 (1) and of rules on Information Society services, the drafts of which must be notified in accordance with the first subparagraph of Article 8(1) of the same directive?

Are national regulations such as Articles 8 to 13 of the abovementioned Royal Decree of 2 June 2008 measures within the meaning of the final subparagraph of Article 1 of Directive 98/34/EC which the Member States consider necessary for ensuring the protection of persons, in particular workers, when using products and which do not affect the products?

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

9.10.2010

Official Journal of the European Union

C 274/11

Action brought on 27 July 2010 — European Commission v Kingdom of Spain

(Case C-375/10)

()

2010/C 274/16

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/CE (1) of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies or, in any event, by failing to communicate such measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 15 of the Directive.

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2007/36/EC into national law expired on 3 August 2009.

(1) OJ L 184, p. 17

9.10.2010

Official Journal of the European Union

C 274/12

Reference for a preliminary ruling from the Tribunalul Dolj (Romania) lodged on 26 July 2010 — Adrian Băilă v Administrația Finanțelor Publice a Municipiului Craiova, Administrația Fondului Pentru Mediu

(Case C-377/10)

()

2010/C 274/17

Language of the case: Romanian

Referring court

Tribunalul Dolj

Parties to the main proceedings

Applicant: Adrian Băilă

Defendants: Administrația Finanțelor Publice a Municipiului Craiova, Administrația Fondului Pentru Mediu

Questions referred

Is the first paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax introduced by Government Emergency Order No 50/2008, as amended by Government Emergency Order No 218/2008, from which motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, are exempt, as are all motor vehicles in category N1 and pollution class Euro 4 which were registered for the first time in Romania or in another Member State between 15 December 2008 and 31 December 2009, but which applies to similar or competing second-hand motor vehicles from other Member States which were registered before 15 December 2008, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods, thus protecting the domestic manufacture of new motor vehicles?

Is the first paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 EC) to be interpreted as precluding a Member State from introducing a tax with the characteristics of the pollution tax introduced by Government Emergency Order No 50/2008, as amended by Government Emergency Order No 218/2008, from which motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, are exempt, as are all motor vehicles in category N1 and pollution class Euro 4 which were registered for the first time in Romania or in another Member State between 15 December 2008 and 31 December 2009, but which applies to motor vehicles with different technical characteristics from those indicated above, which were registered during the same period in other Member States, in that such a tax could amount to a domestic tax on goods from other Member States which is indirectly discriminatory when compared with the tax treatment of domestic goods, thus protecting the domestic manufacture of new motor vehicles?

9.10.2010

Official Journal of the European Union

C 274/12

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria) lodged on 29 July 2010 — Astrid Preissl KEG v Landeshauptmann von Wien

(Case C-381/10)

()

2010/C 274/18

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat Wien

Parties to the main proceedings

Appellant: Astrid Preissl KEG

Respondent: Landeshauptmann von Wien

Questions referred

Should the requirement in point 4 of Chapter I of Annex II to Regulation (EC) No 852/2004 (1) that ‘[a]n adequate number of washbasins is to be available … with hot and cold running water’ be interpreted as meaning that the term ‘Handwaschbecken’ used in the German language version is to be understood as any hand washing facility (connected to a hot water supply), or only as a washbasin which is used exclusively for hand-washing?

What are the criteria for determining whether the hygiene requirements laid down in point 4 of Chapter 1 of Annex II to Regulation (EC) No 852/2004, as expressed with the words ‘materials for cleaning hands and for hygienic drying’, are met? Should that provision of the Annex be interpreted as meaning, for example, that a hand dryer or a water tap only meets the hygiene requirements of point 4 of Chapter I of Annex II to Regulation (EC) No 852/2004 if the hand dryer or water tap can be used without touching by hand?

(1) Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs; OJ 2004 L 139, p. 1.

9.10.2010

Official Journal of the European Union

C 274/13

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria) lodged on 29 July 2010 — Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth v Amt der Wiener Landesregierung

(Case C-382/10)

()

2010/C 274/19

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat Wien

Parties to the main proceedings

Appellants: Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth

Respondent: Amt der Wiener Landesregierung

Questions referred

1.	What are the criteria which determine unfitness for human consumption under paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004? (1) Does such unfitness already exist where a foodstuff offered for sale could conceivably be touched or sneezed upon by a would-be purchaser?

2.	What are the criteria which determine injuriousness to health under paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004? Does such injuriousness already exist where a foodstuff offered for sale could conceivably be touched or sneezed upon by a would-be purchaser?

3.	What are the criteria which determine contamination under paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004? Does such contamination already exist where a foodstuff offered for sale could conceivably be touched or sneezed upon by a would-be purchaser?

(1) Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs; OJ 2004 L 139, p. 1

9.10.2010

Official Journal of the European Union

C 274/13

Action brought on 30 July 2010 — European Commission v Kingdom of Belgium

(Case C-383/10)

()

2010/C 274/20

Language of the case: French

Parties

Applicant: European Commission (represented by: R. Lyal and F. Dintilhac, Agents)

Defendant: Kingdom of Belgium

Form of order sought

—

declare that, by introducing and maintaining a system of discriminatory taxation of interest payments by non-resident banks, by applying a tax exemption only to interest payments by Belgian banks, the Kingdom of Belgium has failed to fulfil its obligations under Articles 56 and 63 of the Treaty on the Functioning of the European Union (ex Articles 49 and 56 respectively of the EC Treaty) and Articles 36 and 40 of the Agreement on the European Economic Area;

—	order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission criticises the national provisions at issue inasmuch as they have the effect of discouraging Belgian residents from using the services of banks established in other Member States of the European Union, as the interest paid by such banks cannot benefit from a tax exemption applicable only to interest paid by Belgian banks.

As a preliminary issue, the Commission rejects, in particular, the defendant’s argument that direct taxation is an exclusive competence of Member States and makes clear that this area is implicitly but necessarily included in the competence relating to the internal market and therefore constitutes a shared competence between the European Union and the Member States.

In response to the objections raised by the Belgian authorities, the Commission submits, first of all, that the absence of a complaint brought on this matter by the financial sector has no relevance since an action seeking a declaration of a failure to fulfil obligations is objective and so cannot be subject to there being a complaint. Second and third, the Commission does not agree, first, with the argument that the aforementioned measures are justified by the overriding reason relating to the public interest in ensuring the effectiveness of fiscal supervision and second, with the claim that the legislation at issue is a socio-political measure that protects the public interest. In the fourth place, the applicant rejects the justification of the Belgian authorities relating to the limited effectiveness of extending this exemption and contends that the group of taxpayers to which this measure applies could also be interested by the services of banks established in other Member States. In the fifth place, the Commission challenges the defendant’s argument relating to the disparities existing in the European Union as regards consumer where a bank fails and recalls the fact that this area is subject to European Union harmonisation. Finally, the Commission invokes the fact that Belgium has three official languages (Dutch, French and German) and that the objections raised, relating to the risk of inadequate information because of the use of a language that is not spoken in Belgium by a bank established outside Belgium, are not justified.

9.10.2010

Official Journal of the European Union

C 274/14

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 30 July 2010 — Elenca srl v Ministero dell’Interno

(Case C-385/10)

()

2010/C 274/21

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Elenca srl

Defendant: Ministero dell’Interno

Questions referred

Are the circular contested at first instance and the national rules referred to therein [namely, Circular No 4853 of the Ministry of the Interior of 18 May 2009 and, in particular, Legislative Decree No 152 of 2 April 2006] compatible with Community law and with the rules specifically referred to [in the order]? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106/EEC (1) relating to construction products, which does not in any way make EC marking mandatory, but, on the contrary, provides (at Article 6(1) and (2)) that Member States ‘shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions’ of that directive, and are to ensure ‘that the use of such products’, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position ‘and are to allow products not covered by Article 4(2) to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise’?

Do the contested circular and the national rules referred to therein infringe Articles 28 to 31 of the EC Treaty in particular, which prohibit restrictions on imports and measures having equivalent effect, in so far as making the marketing of a product originating in another Member State of the Community subject, as in the present case, to a technical requirement, namely affixing the EC mark — which would be possible and lawful only if there were a corresponding harmonised standard — in fact prevents the import and distribution of the product in question in Italy, in breach of the principles laid down by the provisions of the EC Treaty referred to and Community law, which ensure freedom of competition, requiring principles capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individual undertakings?

3.	Under Community rules on workable competition in the sector involving the present dispute, ought the national legislature and administrative authorities to have avoided adopting the legislative measures referred to in the circular and in Legislative Decree No 152/2006?

Lastly, is pluralism and competition in the sector in question, which is guaranteed by European law, secured by national rules — such as Legislative Decree No 152/2006 (in particular Article 285 and paragraphs 2.7 and 3.4 of Annex IX to part [V]) — which introduce and impose the restrictions referred to?

(1) OJ 1989 L 40, p. 12.

9.10.2010

Official Journal of the European Union

C 274/15

Appeal brought on 3 August 2010 by KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA against the judgment of the General Court (Eighth Chamber) delivered on 19 May 2010 in Case T-25/05: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission

(Case C-389/10 P)

()

2010/C 274/22

Language of the case: English

Parties

Appellants: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA (represented by: M. Siragusa, avvocato, A. Winckler, avocat, G. Rizza, avvocato, T. Graf, Rechtsanwalt, M. Piergiovanni, avvocato, R. Elderkin, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment,

—	to the extent that it is possible, based on the facts before the Court, partially annul the Decision and reduce the amount of KME's fine, and

—	order the Commission to pay the costs of these proceedings and of the proceedings before the General Court (GC);

or, in the alternative, where the state of the proceedings does not so permit,

—	set aside the judgment, including with respect to the GC's order to KME to pay the costs, and refer the case back to the GC.

Pleas in law and main arguments

By their first plea, the Appellants contest the GC's conclusion that the Commission did not need to demonstrate that the Arrangements had an impact on the market. Irrespective of whether it may be exempted from positively establishing the existence of market impact for the purposes of classifying the infringement as ‘very serious’, the Commission is certainly under a duty positively to establish and quantify that impact where, as it did in the Decision, it intends to rely on the cartel's actual impact in its determination of the starting amount of a company's fine on account of gravity. The GC erred in holding that the Commission demonstrated to the requisite legal standard that the Arrangements had a market impact, and in stating that the Commission was entitled to establish the existence of market impact by reference to mere indicators. This error was all the more serious since in the present case KME provided evidence, including of economic nature, showing that the infringement as a whole did not have any market impact. In so reasoning and deciding to reject the first plea of KME's Application, the GC distorted the facts and evidence put before it, infringed EU law and provided an illogical and inadequate statement of reasons.

By their second plea, the Appellants criticize the GC for approving the Commission's reference — in order to determine the size of the market affected by the infringement, for the purpose of establishing the gravity element of KME's Fine — to a market value that included the revenues of the market for the semi-finished products (copper plumbing tubes). Only the value of the ‘cartelized’ market, i.e., the market for conversion services (which only represented 30-40 % of the price of the tubes) should have been taken into account. In rejecting the second plea of KME's Application, the GC violated the EU general principles of proportionality and equal treatment, and provided an inadequate statement of reasons.

By the third plea, the Appellants criticize the GC for rejecting the fourth plea of the Application, according to which the Commission misapplied the 1998 Fining Guidelines and infringed the principles of proportionality and equal treatment by imposing the maximum percentage increase in the starting amount of KME's Fine on account of duration, despite its finding that for three years the cartel was dormant and did not have any harmful effect. In the Appellants' view, the GC infringed EU law and provided an obscure, illogical and inadequate statement of reasons for its upholding of the relevant part of the Decision.

By their fourth plea, the Appellants criticize the GC for rejecting the fifth plea of the Application and upholding the relevant parts of the Decision, in which the Commission — in violation of the Fining Guidelines and the principles of fairness and equal treatment — denied KME the benefit of a fine reduction on account of the application of several mitigating factors. The Appellants submit, in particular, that the GC: (1) applied the wrong legal standard when assessing whether KME qualified for a fine reduction on account of its limited implementation of the Arrangements, (2) erred in dismissing KME's claim that KME's Fine should have been reduced because of the crisis in the copper plumbing tube industry; and (3) failed to remedy the Commission's unlawful denial of a fine reduction on account of KME's cooperation outside the Leniency Notice in relation to the broader European arrangements, on the ground that Outokumpu was the first undertaking to provide the Commission with information on the total duration of these arrangements.

By their fifth plea, the Appellants criticize the GC for rejecting the seventh plea of the Application and upholding the Commission's refusal to grant KME a fine reduction on account of its inability to pay. The Applicants submit that the GC erred in law in interpreting the test laid down in Section S(b) of the Fining Guidelines for a fine reduction on account of inability to pay to be granted, as well as in its failure to remedy the unlawful discrimination committed by the Commission against KME compared to SGL Carbon in the Specialty Graphite and Electrical and mechanical carbon and graphite cases. The GC also provided an illogical and inadequate statement of reasons for its dismissal of KME's claims.

By their sixth plea, the Appellants claim that the GC violated EU law and the Appellants' fundamental right to full and effective judicial review by failing to assess thoroughly and closely KME's arguments and showing a biased deference to the Commission's discretion.

9.10.2010

Official Journal of the European Union

C 274/16

Action brought on 3 August 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-390/10)

()

2010/C 274/23

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Braun and L. de Schietere de Lophem, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (1) or, in any event, by not communicating such measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2007/36/EC expired on 3 August 2009. As at the date on which the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the directive or, in any event, had not notified the Commission thereof.

(1) OJ L 184, p. 17.

9.10.2010

Official Journal of the European Union

C 274/16

Action brought on 3 August 2010 — European Commission v Kingdom of Belgium

(Case C-391/10)

()

2010/C 274/24

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Braun and L. de Schietere de Lophem, Agents)

Defendant: Kingdom of Belgium

Form of order sought

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (1) or, in any event, by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

—	order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

(1) OJ L 184, p. 17.

9.10.2010

Official Journal of the European Union

C 274/17

Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 4 August 2010 — Dermod Patrick O'Brien v Ministry of Justice (Formerly the Department for Constitutional Affairs)

(Case C-393/10)

()

2010/C 274/25

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: Dermod Patrick O'Brien

Defendant: Ministry of Justice (Formerly the Department for Constitutional Affairs)

Questions referred

1.	Is it for national law to determine whether or not judges as a whole are ‘workers who have an employment contract or employment relationship’ within the meaning of clause 2.1 of the Framework Agreement, or is there a Community norm by which this matter must be determined?

If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

9.10.2010

Official Journal of the European Union

C 274/17

Action brought on 4 August 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-394/10)

()

2010/C 274/26

Language of the case: French

Parties

Applicant: European Commission (represented by: R. Troosters and J. Sénéchal, Agents, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (1) or, in any event, by not communicating such measures to the Commission, the Luxembourg has failed to fulfil its obligations under Article 15 of that directive;

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2006/24/EC expired on 15 September 2007. As at the date on which the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the directive or, in any event, had not notified the Commission thereof.

(1) OJ L 105, p. 54.

9.10.2010

Official Journal of the European Union

C 274/18

Action brought on 4 August 2010 — European Commission v French Republic

(Case C-395/10)

()

2010/C 274/27

Language of the case: French

Parties

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

Defendant: French Republic

Form of order sought

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) or, in any event, by not communicating such measures to the Commission, France has failed to fulfil its obligations under that directive;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2007/2/EC expired on 14 May 2009. As at the date on which the present action was brought, the defendant had not yet adopted the measures necessary to transpose the directive or, in any event, had not notified the Commission thereof.

9.10.2010

Official Journal of the European Union

C 274/18

Action brought on 4 August 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-396/10)

()

2010/C 274/28

Language of the case: French

Parties

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

Defendant: Grand Duchy of Luxembourg

Form of order sought

—

declare that, failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (1) or, in any event, failing to inform the Commission of those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2007/2/EC expired on 14 May 2009. As at the date on which the present action was brought, the defendant had not yet adopted the measures necessary to transpose the directive or, in any event, had not notified the Commission thereof.

(1) OJ L 108, p. 1.

9.10.2010

Official Journal of the European Union

C 274/19

Action brought on 5 August 2010 — European Commission v Hellenic Republic

(Case C-398/10)

()

2010/C 274/29

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Karanasou-Apostolopoulou and A. Alcover San Pedro, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by not adopting the laws, and administrative provisions, necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) or in any event by not communicating those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2007/2/EC into domestic law expired on 15 May 2009.

9.10.2010

Official Journal of the European Union

C 274/19

Appeal brought on 10 August 2010 the European Commission against the judgment of the General Court delivered on 9 June 2010 in Case T-237/05 Éditions Odile SAS v Commission

(Case C-404/10 P)

()

2010/C 274/30

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Smulders, O. Beynet, and P. Costa de Oliveira, acting as Agents)

Other party to the proceedings: Éditions Odile Jacob SAS, Lagardère SCA

Forms of order sought

—	Set aside the judgment of the General Court of 9 June 2010, Case T-237/05, Éditions Odile Jacob SAS v Commission, in that it annuls the Commission Decision of 7 April 2005, refusing access to documents concerning the merger control case NO COMP/M.2978;

—	Dismiss the respondent’s application for annulment brought before the General Court and give a final ruling on the questions which form the subject-matter of the present appeal;

—	Order the appellant to pay the costs incurred by the Commission in respect of both the proceedings at first instance and the present appeal.

Pleas in law and main arguments

The Commission bases its appeal on two pleas in law.

By its first plea in law, the appellant claims that the General Court misinterpreted Regulation (EC) No 1049/2001 (1) by failing to take account of, for the purposes of the interpretation of the exceptions to the right of access to documents, the provisions of Council Regulation No 4064/89 (2) on concentrations between undertakings. The general rules on rights of access should take account of the specific features of competition proceedings and the confidentiality guarantees offered to undertakings concerned by a concentration.

By its second plea in law, which comprises five parts, the Commission complains of misinterpretation of, by the General Court, of Article 4(2) and (3) of the above-mentioned Regulation No 1049/2001, in so far as it assumed that the appellant had an obligation to carry out a concrete, individual examination of each of the documents covered by a request for access, even in cases manifestly covered by an exception (first part). The Commission also disputes the restrictive interpretation made by the General Court of the exception regarding the protection of the purpose of inspections and audit investigations, according to which that exception cannot apply after the adoption by the Commission of its merger control decision closing the administrative procedure (second part). The appellant also claims that the General Court made a manifest error of law in requiring, first, that a concrete and individual examination of the documents be carried out by the Commission, with a description of the contents, second, by requiring consultation with third parties, despite the manifest nature of the application of the exception concerning the protection of commercial interests (third part). In addition, the Commission maintained that the General Court made an error of law made in so far as it annulled its decision to refuse access to internal documents, where those documents are within the scope of the exception “the decision-making process” mentioned in Article 4(3), second subparagraph (fourth part). Finally, the appellant claims that there was a misinterpretation of Article 4(6) of the above-mentioned Regulation (fifth part).

(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 2001L 14, p. 45)

(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L395, p. 1)

9.10.2010

Official Journal of the European Union

C 274/20

Action brought on 16 August 2010 — European Commission v Republic of Estonia

(Case C-407/10)

()

2010/C 274/31

Language of the case: Estonian

Parties

Applicant: European Commission (represented by: A. Sipos and E. Randvere, acting as Agents)

Defendant: Republic of Estonia

Form of order sought

—

declare that the Republic of Estonia has failed to notify the measures necessary to transpose Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 90/385/EEC on the approximation of the laws of the Member States relating to active implantable medical devices, Council Directive 93/42/EEC concerning medical devices and Directive 98/8/EC concerning the placing of biocidal products on the market; (1)

—	order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 21 December 2008.

(1) OJ 2007 L 247, p. 21.

9.10.2010

Official Journal of the European Union

C 274/21

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 16 August 2010 — Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland GmbH

(Case C-409/10)

()

2010/C 274/33

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Hauptzollamt Hamburg-Hafen

Respondent: Afasia Knits Deutschland GmbH

Questions referred

Is it compatible with Article 32 of Protocol 1 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation to the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, (1) if the European Commission essentially takes it upon itself to undertake the subsequent verification of proofs of origin in the exporting country, albeit with the assistance of the authorities of that country, and does it constitute a result of this verification within the meaning of that article if the results of the verification so obtained by the Commission are recorded in a report that is co-signed by a representative of the government of the exporting country?

If the answer to the first question is in the affirmative, can the person liable for the duty in a case such as the action in the main proceedings — in which the exporting country has declared proofs of preferential origin issued during a particular period to be invalid because the origin of the goods could not be confirmed by subsequent verification even though it could not be ruled out that some export goods satisfied the origin requirements — rely on the protection of legitimate expectations on the basis of the second and third subparagraphs of Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2) and claim that the preference certificates presented in his case may have been correct and were therefore based on a correct account of the facts provided by the exporter?

(1) 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3)

(2) OJ 1992 L 302, p. 1

9.10.2010

Official Journal of the European Union

C 274/21

Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) made on 18 August 2010 — NS v Secretary of State for the Home Department

(Case C-411/10)

()

2010/C 274/34

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: NS

Defendant: Secretary of State for the Home Department

Interested parties: 1) Amnesty International Limited and the AIRE Centre (Advice on Individual Rights in Europe), 2) United Nations High Commissioner for Refugees, 3) Equality and Human Rights Commission

Questions referred

Does a decision made by a Member State under Article 3(2) of Council Regulation 343/2003 (1) (‘the Regulation’) whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the Regulation fall within the scope of EU law for the purposes of Article 6 of the Treaty of European Union and/or Article 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’)?

If the answer to Question 1 is ‘yes’:

Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1,4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) designates as the responsible State in accordance with the criteria set out in Chapter III of the Regulation (‘the Responsible State’), regardless of the situation in the Responsible State?

In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the Responsible State will observe (i) the claimant's fundamental rights under EU law; and/or (ii) the minimum standards imposed by Directives 2003/9/EC (2) (‘the Reception Directive’); 2004/83/EC (3) (‘the Qualification Directive’) and/or 2005/85/EC (4) (‘the Procedures Directive’) (together referred to as ‘the Directives’)?

Alternatively, is a Member State obliged by EU law, and if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the Responsible State would expose the claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1,4, 18, 19(2), and/or 47 of the Charter, and/or to a risk that the minimum standards set out in the Directives will not be applied to him?

Is the scope of the protection conferred upon a person to whom the Regulation applies by the general principles of EU law, and, in particular, the rights set out in Articles 1,18, and 47 of the Charter wider than the protection conferred by Article 3 of the European Convention on Human Rights and Fundamental Freedoms (‘the Convention’)?

Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a Court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to the Regulation, to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the Convention or his rights pursuant to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees?

7.	Insofar as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to Questions 2-4 qualified in any respect so as to take account of the Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom?

(1) Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

OJ L 50, p. 1

(2) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers

OJ L 31, p. 18

(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 L 304, p. 12

(4) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status

OJ L 326, p. 13

9.10.2010

Official Journal of the European Union

C 274/23

Order of the General Court of 24 August 2010 — Grúas Abril Asistencia v Commission

(Case T-386/09) (1)

(Action for annulment - Competition - Rejection of complaint - Measure against which actions may not be brought by individuals - Inadmissibility)

2010/C 274/35

Language of the case: Spanish

Parties

Applicant: Grúas Abril Asistencia, SL (Alicante, Spain) (represented by: R.L. García García, lawyer)

Defendant: European Commission (represented by: F. Castillo de la Torre and F. Castilla Contreras, Agents)

Re:

Application for annulment of the Commission letter of 7 August 2009 informing the applicant that the facts on which it has lodged the complaint do not permit the conclusion that there is an infringement of Articles 81 EC, 82 EC and 86 EC and that no action will be taken regarding its complaint.

Operative part of the order

1.	The application is dismissed.

2.	Grúas Abril Asistencia, SL, shall pay the costs.

(1) OJ C 282, 21.11.2009.

9.10.2010

Official Journal of the European Union

C 274/23

Action brought on 10 June 2010 — PPG and SNF v ECHA

(Case T-268/10)

()

2010/C 274/37

Language of the case: English

Parties

Applicants: Polyelectrolyte Producers Group GEIE (PPG) (Brussels, Belgium) and SNF SAS (Andrezieux Boutheon, France) (represented by: K. Van Maldegem, R. Cana, lawyers and P. Sellar, Solicitor)

Defendant: European Chemical Agency (ECHA)

Form of order sought

—	declare the application admissible and well-founded;

—	annul the contested act;

—	order ECHA to pay the costs of these proceedings;

—	take such other or further measure as justice may require.

Pleas in law and main arguments

The applicants seek the partial annulment of the decision of the European Chemicals Agency (“ECHA”) to identify acrylamide (CE no 201-173-7) (CAS Number 79-06-1) as a substance meeting the criteria set out in Article 57 Regulation (EC) No 1907/2006 (1) (“REACH”), in accordance with Article 59 REACH.

The applicants consider that the contested act is unlawful because it is based on an assessment of acrylamide that is scientifically and legally flawed since it relies on the evidence that is not sufficiently reliable and cogent. In the applicant’s opinion, ECHA committed a manifest error of appraisal in adopting the contested act, in breach of Articles 2(8) and 59 REACH and in breach of its duty to carefully and impartially examine the evidence.

Further, the applicants claim that the contested act infringes a series of general principles of EU law such as principle of proportionality and of non-discrimination since it discriminates against acrylamide with regard to other comparable substances without any objective justification.

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

9.10.2010

Official Journal of the European Union

C 274/24

Appeal brought on 20 July 2010 by European Commission against the judgment of the Civil Service Tribunal delivered on 11 May 2010 in Case F-30/08 Nanopoulos v Commission

(Case T-308/10 P)

()

2010/C 274/38

Language of the case: Greek

Parties

Appellant: European Commission (represented by J. Currall and by E.Bourtzalas and I. Antypas, lawyers)

Other party to the proceedings: Fotios Nanopoulos (Itzig, Luxembourg)

Form of order sought by the appellant

The General Court is asked to

—	set aside the judgment of the Civil Service Tribunal of 11 May 2010 in Case F-30/08 Nanopoulos v Commission;

—	if the judgment is upheld, set the correct level of compensation; and

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

Pleas in law and main arguments

With the above appeal, the appellant asks the General Court to set aside the judgment of the Civil Service Tribunal of 11 May 2010 in Case F-30/08 Nanopoulos v Commission, ordering the Commission to pay to the respondent compensation for non-material damage amounting to EUR 90 000 and to bear all the costs.

In support of its appeal, the Commission relies on the following grounds of appeal:

—

infringement of Articles 90 to 91 of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’) and the principle of legal certainty in that the Civil Service Tribunal erred in law by ruling that the claim brought by the respondent should be deemed to be an action for damages, without stating any reasons whatsoever;

—	error in law and defective statement of reasons, in that the Civil Service Tribunal considered that the action for damages was brought in good time, and ruled that the decision to initiate disciplinary proceedings was in breach of the presumption of innocence;

—

infringement of Community law, error in law and defective statement of reasons, in that the Civil Service Tribunal failed to apply the principle of law requiring a ‘sufficiently serious infringement’ and did not explain why a departure from the existing case law would be necessary in the present case;

—

infringement of Article 24 of the Staff Regulations, error in law and defective statement of reasons in that the Civil Service Tribunal considered that the appointing authority was obliged to provide immediate assistance to the respondent without prior investigation and before expiry of the period of four months under that article for responding to requests;

—	manifest error in law and in the statement of reasons in that the Civil Service Tribunal ruled that the Commission, first, is responsible for the alleged leaks to the press and, second, erred in initiating disciplinary proceedings;

—	infringement of the principle of proportionality and error in law, in that the Civil Service Tribunal awarded in respect of the non-material damage suffered by the respondent compensation amounting to EUR 90 000.

9.10.2010

Official Journal of the European Union

C 274/25

Action brought on 23 July 2010 — Groupe Partouche v Commission

(Case T-315/10)

()

2010/C 274/39

Language of the case: French

Parties

Applicant: Groupe Partouche SA (Paris, France) (represented by: J.-J. Sebag, lawyer)

Defendant: European Commission

Form of order sought

—	Annul the decision of the Commission not to object to a concentration;

—	Order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the appolicant seeks the annulment of Commission Decision C(2010) 3333 of 21 May 2010 declaring compatible with the common market and with the Agreement on the European Economic Area a proposed concentration by which Française des Jeux and Groupe Lucien Barrière acquire joint control of the undertaking Newco, which is to develop and operate an internet poker site in France.

In support of its action, the applicant submits that the Commission should have referred examination of the concentration in question back to the French Republic, having regard to its possible significant effect on competition in France in the relevant market.

9.10.2010

Official Journal of the European Union

C 274/25

Action brought on 23 July 2010 — HIM v European Commission

(Case T-316/10)

()

2010/C 274/40

Language of the case: French

Parties

Applicant: Health Information Management (HIM) (Brussels, Belgium) (represented by: P. Zeegers, lawyer)

Defendant: European Commission

Form of order sought

—	Declare the present application admissible and well-founded and, consequently,

—	order the European Commission to pay the sum of EUR 11 821,35, together with default interest at the statutory rate applicable in Belgium from 16 June 2010;

—	order the European Commission to pay all the costs and expenses inclusive, the amount of which is provisionally fixed at EUR 5 000.

Pleas in law and main arguments

By the present action, based on an arbitration clause, the applicant requests the General Court, in essence, to declare that, for the purposes of calculation of the applicant’s general costs to be met by the Commission (in respect of contracts concluded under the eTen programme specifically), that is to say, that part of the general costs capable of being connected to the services of the staff working on the project, not including sub-contractors in the applicant’s staff, since those sub-contractors do not incur any general costs to be borne by the applicant. Consequently, the costs of sub-contracts should not be included in the total amount of personnel costs by which the total amount of general costs is divided to arrive at the denominator to be used to determine the percentage of eligible general costs.

In support of its action, the applicant submits that, since sub-contractors’ costs do not form part of the eligible personnel costs, the fact of including sub-contractors in the applicant’s staff when calculating the amount of the total personnel costs to be used to determine the percentage of eligible general costs gives rise to an inconsistency.

In addition, the fact of including sub-contractors in the applicant’s staff causes damage to the applicant, since that method results in an increase in the amount of the denominator and, in consequence, gives a proportional decrease in the percentage of eligible general costs.

9.10.2010

Official Journal of the European Union

C 274/26

Action brought on 11 August 2010 — Van Parys v Commission

(Case T-324/10)

()

2010/C 274/41

Language of the case: Dutch

Parties

Applicant: Léon Van Parys NV (Antwerp, Belgium) (represented by: P. Vlaemminck and A. Hubert, lawyers)

Defendant: European Commission

Form of order sought

—

annul the European Commission decision of 6 May 2010 in file REC 07/07, which found that it was justified in a specific case to proceed with post-clearance entry in the accounts of import duties and to proceed with remission of those duties in respect of one debtor but not in the case of another debtor;

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

Pleas in law and main arguments

It is alleged that, over the period from 22 June 1998 to 8 November 1999, the applicant and its customs agent submitted false Spanish AGRIM certificates to the customs authorities in Antwerp for the importation of bananas from Ecuador. As a result of this, it is alleged that a claim was improperly made for the application of the preferential tariff.

All of the allegedly false Spanish certificates which gave rise to the post-clearance recovery claim were obtained by the applicant via its Portuguese intermediary, with whom, in his capacity as fiscal representative, the applicant, through its Italian subsidiary, had operated for many years for the purchase of Spanish and Portuguese licences.

The Belgian Customs and Excise Duty Administration submitted an application to the European Commission for non-post-clearance recovery and/or remission in respect of the customs duties recovered post-clearance. With regard to the imports in 1999, the European Commission issued a negative decision. It is against that decision that the applicant has brought the present action for annulment.

The applicant invokes six grounds in support of the annulment of the abovementioned decision.

First, the applicant claims that there has been a breach of Article 239 of the Community Customs Code, of the provisions of Regulations (EEC) No 1442/93 and (EC) No 2362/98, and invokes the recognised commercial usages as described by the World Trade Organisation. It contends that the Commission breached those provisions, which permitted the purchase of the use of import licences by means of the commercial method employed by the applicant, and as a result wrongly found the applicant guilty of negligence.

Second, the applicant alleges a breach of Article 239 of the Community Customs Code and infringement of the principle of proportionality. The Commission found that the established falsifications of Spanish import certificates went beyond the normal commercial risk and that those falsifications had to be regarded as constituting a particular situation. The applicant, however, disputes the assertion that it failed to act as a prudent trader and that the conditions set out in Article 239 of the Community Customs Code have consequently not been satisfied.

Third, it is alleged that the Commission has breached Article 239 of the Community Customs Code, Article 211 of the EC Treaty and has infringed the principle of legitimate expectations and the general legal principle of patere legem quam ipse fecisti. The applicant submits that the Commission has imposed on the applicant more stringent requirements of care than were dictated by the legislation and more stringent than was usual in the sector, whereas the Commission and the Spanish authorities failed to comply with their own statutory obligations.

Fourth, the applicant claims that there has been a breach of Article 239 of the Community Customs Code and infringement of the principle of equality by reason of the fact that the Commission unjustifiably treated the imports in 1998 in a manner different to that in which it treated the imports in 1999.

Fifth, the applicant alleges that there has been a breach of Article 220(2)(b) of the Community Customs Code. In its view, it is not possible, without more, to establish that there was no error on the part of the Spanish customs authorities within the meaning of Article 220(2)(b).

Sixth, the applicant contends that there has been a breach of essential procedural requirements, in particular the applicant’s rights of defence.

9.10.2010

Official Journal of the European Union

C 274/27

Action brought on 12 August 2010 — Yoshida Metal Industry/OHMI — Pi-Design (surface covered with black circles)

(Case T-331/10)

()

2010/C 274/42

Language in which the application was lodged: English

Parties

Applicant: Yoshida Metal Industry Co., Ltd (Niigata, Japan) (represented by: S. Verea, K. Muraro and M. Balestriero, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pi-Design AG, (Triengen, Switzerland)

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 20 May 2010 in case R 1235/2008-1;

—	Confirm the decision of the Cancellation Division of 21 July 2008 regarding Community trade mark application No 1371244;

—	Confirm the validity of Community trade mark registration No 1371244;

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a surface covered with black circles for goods in classes 8 and 21 — Community trade mark registration No 1371244

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: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 7 of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the application for declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Annulled the contested decision and declared the Community trade mark registration invalid

Pleas in law: Infringement of Articles 7(1)(b) and 7(1)(e)(ii) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of these Articles are applicable to the contested Community trade mark.

9.10.2010

Official Journal of the European Union

C 274/28

Action brought on 17 August 2010 — ATC and Others v Commission

(Case T-333/10)

()

2010/C 274/43

Language of the case: Dutch

Parties

Applicants: Animal Trading Company (ATC) BV (Loon op Zand, Netherlands), Avicentra NV (Malle, Belgium), Borgstein Birds and Zoofood Trading VOF (Wamel, Netherlands), Bird Trading Company Van der Stappen BV (Dongen, Netherlands), New Little Bird’s srl (Anagni, Italy), Vogelhuis Kloeg (Zevenbergen, Netherlands) and Pistone Giovanni (Westerlo, Belgium) (represented by: M. Osse and J. Houdijk, lawyers)

Defendants: European Commission and European Union, represented by the European Commission

Form of order sought

—

order the European Union and/or the European Commission to pay compensation in respect of the harm which the applicants have suffered as a result of the adoption of Decision 2005/760/EC, (1) and/or the extension thereof by way of Decision 2005/862/EC, (2) and/or Decision 2006/79/EC, (3) and/or Decision 2006/405/EC, (4) and/or Decision 2006/522/EC, (5) and/or Decision 2007/21/EC, (6) and/or Decision 2007/183/EC, (7) and/or the adoption of Regulation (EC) No 318/2007; (8)

—	order the European Union and/or the European Commission to pay the costs of the proceedings and the extra-judicial costs.

Pleas in law and main arguments

The applicants seek compensation for the harm which they have suffered as a result of, first, the ban on the importation of birds caught in the wild, which entered into effect in October 2005, second, the extensions of that ban, and, third, the restrictions which have been in force since 1 July 2007 on the importation of birds and which, de facto, continue the prohibition of the importation of birds caught in the wild.

With regard to the first part of their application for compensation, which concerns the adoption of Decision 2005/760/EC, the applicants put forward three pleas.

First, the applicants submit that the Commission had only a very limited margin of discretion in exercising its powers under Article 18 of Directive 91/496 (9) and that the Commission exceeded those powers by prohibiting imports from countries in which there had been no incidences of infection with avian influenza or in which there had been no concrete risk of contamination.

Second, the applicants contend that, even if the Commission did have a broader margin of discretion when exercising its powers, it none the less committed a sufficiently serious breach. In this connection, the applicants submit that the Commission misconstrued its powers, infringed the principles of proportionality and equal treatment, disregarded the right of property and the freedom to carry out an economic activity, and committed an infringement of the principle of the protection of legitimate expectations.

The applicants then go on to submit that they have suffered genuine and certain damage and that there is a causal connection between that damage and the Commission’s unlawful actions.

Third, the applicants contend that the damage which they have suffered is abnormal and specific in character in that it goes beyond the limits of the economic risks associated with the activities in the sector concerned. The introduction of a total ban on imports of wild birds was, in the applicants’ view, not foreseeable and had a particularly adverse effect on dealers in wild birds. The applicants also seek to establish liability on the Commission’s part even in the event that it is adjudged to have acted correctly.

In the second part of their application for compensation, the applicants seek compensation for the harm suffered as a result of the extensions of the ban on the importation of wild birds from non-member countries. They rely, in this connection, on the same three pleas as those invoked in the first part of their application for compensation.

Finally, the applicants seek compensation in respect of the harm which they have suffered as a result of Regulation (EC) No 318/2007, which provides that the importation of birds is to be restricted to birds which have been bred in captivity and which originate in a very small number of non-member countries. The applicants put forward three pleas in law in this regard.

First, the applicants contend that Regulation (EC) No 318/2007 does not have an adequately defined legal basis. They submit that Directives 91/496 and 92/65 (10) do not contain any legal basis for the adoption of Regulation (EC) No 318/2007 by the Commission.

Second, the applicants allege that there has been an infringement of the principles of equal treatment and proportionality, in addition to a breach of the freedom of enterprise and the right to property.

The applicants continue by submitting that they have suffered genuine and certain damage and that there is a causal connection between that damage and the Commission’s unlawful actions.

Third, the applicants also request that, in the event that it should be assumed that the Commission acted correctly, the General Court rule that the Commission is liable for the damage suffered as a result of Regulation (EC) No 318/2007.

(1) Commission Decision 2005/760/EC of 27 October 2005 concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds (OJ 2005 L 285, p. 60).

(2) Commission Decision 2005/862/EC of 30 November 2005 amending Decisions 2005/759/EC and 2005/760/EC relating to measures to combat avian influenza in birds other than poultry (OJ 2005 L 317, p. 19).

(3) Commission Decision 2006/79/EC of 31 January 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards an extension of their period of application (OJ 2006 L 36, p. 48).

(4) Commission Decision 2006/405/EC of 7 June 2006 amending Decisions 2005/710/EC, 2005/734/EC, 2005/758/EC, 2005/759/EC, 2005/760/EC, 2006/247/EC and 2006/265/EC as regards certain protection measures in relation to highly pathogenic avian influenza (OJ 2006 L 158, p. 14).

(5) Commission Decision 2006/522/EC of 25 July 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and movements of certain live birds into the Community (OJ 2006 L 205, p. 28).

(6) Commission Decision 2007/21/EC of 22 December 2006 amending Decision 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and imports of birds other than poultry into the Community (OJ 2007 L 7, p. 44).

(7) Commission Decision 2007/183/EC of 23 March 2007 amending Decision 2005/760/EC concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds (OJ 2007 L 84, p. 44).

(8) Commission Regulation (EC) No 318/2007 of 23 March 2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof (OJ 2007 L 84, p. 7).

(9) Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (OJ 1991 L 268, p. 56).

(10) Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive 90/425/EEC (OJ 1992 L 268, p. 54).

9.10.2010

Official Journal of the European Union

C 274/29

Action brought on 10/08/2010 — Abercrombie & Fitch Europe/OHMI — Gilli (GILLY HICKS)

(Case T-336/10)

()

2010/C 274/44

Language in which the application was lodged: English

Parties

Applicant: Abercrombie & Fitch Europe SA (Mendrisio, Switzerland) (represented by: S. Malynicz, Barrister, D. Stone and L. Ritchie, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Gilli Srl (Milano, Italy)

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 20 May 2010 in case R 832/2008-1, and;

—	Order the defendant and the other party to the proceedings before the Board of Appeal 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 “GILLY HICKS”, for goods and services in classes 3, 14, 25 and 35 — Community trade mark application No 5194543

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

Mark or sign cited: Community trade mark registration No 3566007 of the figurative mark “GILLI”, for goods in classes 3, 9, 14 and 25

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Annulled the contested decision partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal did not carry out a correct visual, aural or conceptual comparison of the marks and therefore erred in relation to the likelihood of confusion.

9.10.2010

Official Journal of the European Union

C 274/31

Judgment of the Civil Service Tribunal (Full Court) of 1 July 2010 — Mandt v Parliament

(Case F-45/07) (1)

(Civil service - Officials - Survivor's pension - Article 79 of the Staff Regulations - Article 18 of Annex VIII to the Staff Regulations - Surviving spouse - Recognition of two persons as the surviving spouse - Reduction to 50 % - Legitimate expectation - Requirement of consistency)

2010/C 274/46

Language of the case: German

Parties

Applicant: Wolfgang Mandt (Kreuztal, Germany) (represented by: B. Kolb, lawyer)

Defendant: European Parliament (represented by: initially, K. Zejdová, J. F. de Wachter and U. Rösslein, acting as Agents, then, J. F. de Wachter, K. Zejdová and S. Seyr, acting as Agents)

Intervener in support of the defendant: Kurt-Wolfgang Braun Neumann who died on 9 October 2009, leaving Shirley Meyer as sole heir (Bedburg-Hau, Germany) (represented by: P. Ames, lawyer)

Re:

Annulment of the decision of the European Parliament of 8.2.2007 rejecting the applicant's complaint regarding the reduction of the survivor's pension to 50 % — Claim for full payment

Operative part of the judgment

1.	There is no need to give a decision on the application requesting the Parliament to pay Mr Mandt the survivor's pension in full in so far as it relates to the period after 31 October 2009.

2.	The remainder of the application is dismissed.

3.	The parties and the intervener shall bear their own costs.

(1) OJ C 183, 4.8.2007, p. 43.

9.10.2010

Official Journal of the European Union

C 274/31

Judgment of the Civil Service Tribunal (Third Chamber) of 7 July 2010 — Tomas v European Parliament

(Cases F-116/07, F-13/08 and F-31/08) (1)

(Civil service - Members of temporary staff - Article 2(c) of the Conditions of Employment of other servants of the European Communities - Termination of employment - Relationship of trust - Prior consultation of the Parliament’s Staff Committee - None)

2010/C 274/47

Language of the case: Lithuanian

Parties

Applicant: Stanislovas Tomas (Vilnius, Lithuania) (represented by: M. Michalauskas. lawyer)

Defendant: European Parliament (represented by: A. Lukošiūtė and K. Zejdová, acting as Agents)

Re:

First, the annulment of the appointing authority's decision to dismiss that applicant and, second, an application for damages for the non-material and material loss suffered.

Operative part of the judgment

The Tribunal:

1.	Dismisses applications F-116/07 and F_13/08;

2.	Orders the European Parliament to pay Mr Stanislovas Tomas the sum of EUR 1 000, for the non-material damage he has suffered;

3.	Dismisses the remainder of the application in F-31/08;

4.	Orders each party to bear its own costs relating to all of the actions F-116/07, F-13/08 and F-31/08.

(1) OJ C 64, 8.3.2008, p. 65, OJ C 142, 7.6.2008, p. 39, and OJ C 158, 21.6.2008, p. 26

9.10.2010

Official Journal of the European Union

C 274/32

Judgment of the Civil Service Tribunal (Third Chamber) of 1 July 2010 — Füller-Tomlinson v European Parliament

(Case F-97/08) (1)

(Civil service - Former member of the temporary staff - Occupational disease - Physical or mental harm - Duration of the procedure for the recognition of the occupational nature of the disease)

2010/C 274/48

Language of the case: French

Parties

Applicant: Paulette Füller-Tomlinson (Belgium) (represented by: L. Levi, lawyer)

Defendant: European Parliament (represented by: K. Zejdová and S. Seyr, acting as Agents)

Re:

Annulment of the decision establishing the part of the partial permanent invalidity attributable to the occupational nature of a disease affecting the applicant at 20 %, as well as, in the alternative, an order against the defendant to pay a sum in damages for the non-material damage suffered by the applicant.

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders Ms Füller-Tomlinson to bear all the costs.

(1) OJ C 44, 21.2.2009, p. 76.

9.10.2010

Official Journal of the European Union

C 274/32

Judgment of the Civil Service Tribunal (Third Chamber) of 1 July 2010 — Časta v Commission

(Case F-40/09) (1)

(Civil service - Open competition - Non-admission to the oral tests - Request for a review - Obligation to state reasons - Professional experience required - Late submission of a certificate - Principle of equal treatment - Action for annulment - Action for damages)

2010/C 274/49

Language of the case: Czech

Parties

Applicant: Radek Časta (Brussels, Belgium) (represented by: L. Tahotná, lawyer)

Defendant: European Commission (represented by: B. Eggers and M. L. Jelínek, acting as Agents.)

Re:

First, an application for annulment of EPSO’s decision not to admit the applicant to the oral tests in open competition EPSO/AD/107/07-LAW on account of the fact that the condition relating to 3 years’ experience in a senior management post was not met and secondly, an application for an order that the defendant pay the applicant a sum in respect of the material and non-material harm suffered.

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders Ms Časta to bear all the costs.

(1) OJ C 153, 4.7.2009, p. 51

9.10.2010

Official Journal of the European Union

C 274/33

Judgment of the Civil Service Tribunal (Third Chamber) of 4 May 2010 — Freis Guggenheim v Cedefop

(Case F-47/09) (1)

(Civil service - Member of the temporary staff - Non-renewal of the contract - Article 11a of the Staff Regulations - Sixth subparagraph of Article1 of Annex II to the Staff Regulations - Function of staff representation - Duty of impartiality and of independence)

2010/C 274/50

Language of the case: French

Parties

Applicant: Éric Mathias Fries Guggenheim (Strasbourg, France) (represented by: M.-A. Lucas, lawyer)

Defendant: European Centre for the Development of Vocational Training (represented by: M. Fuchs, acting as Agent, assisted by B. Wägenbaur, lawyer)

Re:

Annulment of CEDEFOP’s decision not to renew the applicant’s contract as a member of the temporary staff and, should the applicant not be reinstated, an order that the defendant pay him damages to compensate for the non-material harm suffered.

Operative part of the judgment

The Tribunal:

1.	Dismisses the application;

2.	Orders Mr Freis Guggenheim to pay the costs.

(1) OJ C 153, 4.7.2009, p. 52.

		ISSN 1725-2423 doi:10.3000/17252423.C_2010.274.eng
Official Journal of the European Union		C 274

English edition	Information and Notices	Volume 53 9 October 2010

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2010/C 274/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 260, 25.9.2010	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2010/C 274/02	Joined Cases C-395/08 and C-396/08: Judgment of the Court (Second Chamber) of 10 June 2010 (reference for a preliminary ruling from the Corte d’appello di Roma (Italy)) — Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno, Massimo Pettini (C-395/08), Daniela Lotti, Clara Matteucci (C-396/08) (Directive 97/81/EC — Framework Agreement on part-time work — Equal treatment of part-time and full-time workers — Calculation of the period of service required to obtain a retirement pension — Periods not worked disregarded — Discrimination)	2

2010/C 274/03	Case C-293/10: Reference for a preliminary ruling from the Landesgericht Innsbruck (Austria) lodged on 14 June 2010 — Gebhard Stark v D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG	2

2010/C 274/04	Case C-312/10: Reference for a preliminary ruling from the Landesarbeitsgericht Köln (Germany) lodged on 29 June 2010 — Land Nordrhein-Westfalen v Melanie Klintz	3

2010/C 274/05	Case C-313/10: Reference for a preliminary ruling from the Landesarbeitsgericht Köln (Germany) lodged on 29 June 2010 — Land Nordrhein-Westfalen v Sylvia Jansen	4

2010/C 274/06	Case C-323/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 5 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas	5

2010/C 274/07	Case C-324/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 5 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas	6

2010/C 274/08	Case C-325/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 6 July 2010 — Doux Geflügel GmbH v Hauptzollamt Hamburg-Jonas	6

2010/C 274/09	Case C-326/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 6 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas	6

2010/C 274/10	Case C-335/10: Reference for a preliminary ruling from the Curtea de Apel Craiova (Romania) lodged on 6 July 2010 — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu v Claudia Norica Vijulan	7

2010/C 274/11	Case C-336/10: Reference for a preliminary ruling from the Curtea de Apel Craiova (Romania) lodged on 6 July 2010 — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului Pentru Mediu v Victor Vinel Ijac	7

2010/C 274/12	Case C-344/10 P: Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-109/08 Freixenet v OHIM	8

2010/C 274/13	Case C-345/10 P: Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-110/08 Freixenet v OHIM	9

2010/C 274/14	Case C-351/10: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 12 July 2010 — Zollamt Linz Wels	10

2010/C 274/15	Case C-361/10: Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 19 July 2010 — Scrl Intercommunale Intermosane, ABSL Fédération de l’Industrie et du Gaz (Synergrid) v Belgian State	11

2010/C 274/16	Case C-375/10: Action brought on 27 July 2010 — European Commission v Kingdom of Spain	11

2010/C 274/17	Case C-377/10: Reference for a preliminary ruling from the Tribunalul Dolj (Romania) lodged on 26 July 2010 — Adrian Băilă v Administrația Finanțelor Publice a Municipiului Craiova, Administrația Fondului Pentru Mediu	12

2010/C 274/18	Case C-381/10: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria) lodged on 29 July 2010 — Astrid Preissl KEG v Landeshauptmann von Wien	12

2010/C 274/19	Case C-382/10: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria) lodged on 29 July 2010 — Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth v Amt der Wiener Landesregierung	13

2010/C 274/20	Case C-383/10: Action brought on 30 July 2010 — European Commission v Kingdom of Belgium	13

2010/C 274/21	Case C-385/10: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 30 July 2010 — Elenca srl v Ministero dell’Interno	14

2010/C 274/22	Case C-389/10 P: Appeal brought on 3 August 2010 by KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA against the judgment of the General Court (Eighth Chamber) delivered on 19 May 2010 in Case T-25/05: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission	15

2010/C 274/23	Case C-390/10: Action brought on 3 August 2010 — European Commission v Grand Duchy of Luxembourg	16

2010/C 274/24	Case C-391/10: Action brought on 3 August 2010 — European Commission v Kingdom of Belgium	16

2010/C 274/25	Case C-393/10: Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 4 August 2010 — Dermod Patrick O'Brien v Ministry of Justice (Formerly the Department for Constitutional Affairs)	17

2010/C 274/26	Case C-394/10: Action brought on 4 August 2010 — European Commission v Grand Duchy of Luxembourg	17

2010/C 274/27	Case C-395/10: Action brought on 4 August 2010 — European Commission v French Republic	18

2010/C 274/28	Case C-396/10: Action brought on 4 August 2010 — European Commission v Grand Duchy of Luxembourg	18

2010/C 274/29	Case C-398/10: Action brought on 5 August 2010 — European Commission v Hellenic Republic	19

2010/C 274/30	Case C-404/10 P: Appeal brought on 10 August 2010 the European Commission against the judgment of the General Court delivered on 9 June 2010 in Case T-237/05 Éditions Odile SAS v Commission	19

2010/C 274/31	Case C-407/10: Action brought on 16 August 2010 — European Commission v Republic of Estonia	20

2010/C 274/32	Case C-408/10: Action brought on 16 August 2010 — European Commission v Republic of Estonia	20

2010/C 274/33	Case C-409/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 16 August 2010 — Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland GmbH	21

2010/C 274/34	Case C-411/10: Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) made on 18 August 2010 — NS v Secretary of State for the Home Department	21

	General Court
2010/C 274/35	Case T-386/09: Order of the General Court of 24 August 2010 — Grúas Abril Asistencia v Commission (Action for annulment — Competition — Rejection of complaint — Measure against which actions may not be brought by individuals — Inadmissibility)	23

2010/C 274/36	Case T-261/10 R: Order of the President of the General Court of 29 July 2010 — Brinkmann v Germany (Interim measure — Clear lack of jurisdiction)	23

2010/C 274/37	Case T-268/10: Action brought on 10 June 2010 — PPG and SNF v ECHA	23

2010/C 274/38	Case T-308/10 P: Appeal brought on 20 July 2010 by European Commission against the judgment of the Civil Service Tribunal delivered on 11 May 2010 in Case F-30/08 Nanopoulos v Commission	24

2010/C 274/39	Case T-315/10: Action brought on 23 July 2010 — Groupe Partouche v Commission	25

2010/C 274/40	Case T-316/10: Action brought on 23 July 2010 — HIM v European Commission	25

2010/C 274/41	Case T-324/10: Action brought on 11 August 2010 — Van Parys v Commission	26

2010/C 274/42	Case T-331/10: Action brought on 12 August 2010 — Yoshida Metal Industry/OHMI — Pi-Design (surface covered with black circles)	27

2010/C 274/43	Case T-333/10: Action brought on 17 August 2010 — ATC and Others v Commission	28

2010/C 274/44	Case T-336/10: Action brought on 10/08/2010 — Abercrombie & Fitch Europe/OHMI — Gilli (GILLY HICKS)	29

2010/C 274/45	Case T-272/09: Order of the General Court of 24 August 2010 — Pineapple Trademarks v OHIM — Dalmau Salmons (KUSTOM)	30

	European Union Civil Service Tribunal
2010/C 274/46	Case F-45/07: Judgment of the Civil Service Tribunal (Full Court) of 1 July 2010 — Mandt v Parliament (Civil service — Officials — Survivor's pension — Article 79 of the Staff Regulations — Article 18 of Annex VIII to the Staff Regulations — Surviving spouse — Recognition of two persons as the surviving spouse — Reduction to 50 % — Legitimate expectation — Requirement of consistency)	31

2010/C 274/47	Cases F-116/07, F-13/08 and F-31/08: Judgment of the Civil Service Tribunal (Third Chamber) of 7 July 2010 — Tomas v European Parliament (Civil service — Members of temporary staff — Article 2(c) of the Conditions of Employment of other servants of the European Communities — Termination of employment — Relationship of trust — Prior consultation of the Parliament’s Staff Committee — None)	31

2010/C 274/48	Case F-97/08: Judgment of the Civil Service Tribunal (Third Chamber) of 1 July 2010 — Füller-Tomlinson v European Parliament (Civil service — Former member of the temporary staff — Occupational disease — Physical or mental harm — Duration of the procedure for the recognition of the occupational nature of the disease)	32

2010/C 274/49	Case F-40/09: Judgment of the Civil Service Tribunal (Third Chamber) of 1 July 2010 — Časta v Commission (Civil service — Open competition — Non-admission to the oral tests — Request for a review — Obligation to state reasons — Professional experience required — Late submission of a certificate — Principle of equal treatment — Action for annulment — Action for damages)	32

2010/C 274/50	Case F-47/09: Judgment of the Civil Service Tribunal (Third Chamber) of 4 May 2010 — Freis Guggenheim v Cedefop (Civil service — Member of the temporary staff — Non-renewal of the contract — Article 11a of the Staff Regulations — Sixth subparagraph of Article1 of Annex II to the Staff Regulations — Function of staff representation — Duty of impartiality and of independence)	33

2010/C 274/51	Case F-64/10: Action brought on 3 August 2010 — Mantzouratos v European Parliament	33