9.7.2011

Official Journal of the European Union

C 204/2

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Kingdom of Belgium

(Case C-47/08) (1)

(Failure of a Member State to fulfil obligations - Article 43 EC - Freedom of establishment - Civil-law notaries - Nationality condition - Article 45 EC - Connection with the exercise of official authority - Directive 89/48/EEC)

2011/C 204/02

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne, H. Støvlbæk and G. Zavvos, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent)

Defendant: Kingdom of Belgium (represented by: C. Pochet and L. Van den Broeck, Agents, and H. Gilliams and L. Goossens, avocats)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), French Republic (represented by: G. de Bergues and B. Messmer, Agents), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas, Agent), Republic of Hungary (represented by: J. Fazekas, R. Somssich, K. Veres and M. Fehér, Agents), Slovak Republic (represented by: J. Čorba and B. Ricziová, Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC and 45 EC — National legislation making access to the profession of notary and its practice subject to a nationality requirement — Restriction on freedom of establishment — Scope of the exception relating to activities connected with the exercise of official authority — Requirement of direct and specific connection with such exercise — Failure to transpose, in respect of the profession of notary, Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16)

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality condition for access to the profession of notary, the Kingdom of Belgium has failed to fulfil its obligations under Article 43 EC;

2.	Dismisses the action as the remainder;

3.	Orders the European Commission, the Kingdom of Belgium, the Czech Republic, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 128, 24.5.2008.

9.7.2011

Official Journal of the European Union

C 204/2

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v French Republic

(Case C-50/08) (1)

(Failure by a Member State to fulfil its obligations - Article 43 EC - Freedom of establishment - Notaries - Nationality requirement - Article 45 EC - Connection with the exercise of official authority)

2011/C 204/03

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and S. Ossowski, Agents)

Defendant: French Republic (represented by: E. Belliard, G. de Bergues and B. Messmer, Agents)

Interveners in support of the defendant: Republic of Bulgaria (represented by: T. Ivanov and E. Petranova, Agents), Czech Republic (represented by: M. Smolek, Agent), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: R. Somssich, K. Veres and M. Fehér, Agents), Romania (represented by: C. Osman, A. Gheorghiu, A. Stoia and A. Popescu, Agents), Slovak Republic (represented by: J. Čorba and B. Ricziová, Agents)

Re:

Failure by a Member State to fulfil its obligations — Infringement of Articles 43 EC and 45 EC — National legislation making access to the profession of notary and its pursuit subject to a nationality requirement — Restriction on the freedom of establishment — Scope of the exception relating to activities connected with the exercise of official authority — Requirement of direct and specific connection with such exercise

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality requirement for access to the profession of notary, the French Republic failed to fulfil its obligations under Article 43 EC;

2.	Orders the French Republic to pay the costs;

3.	Orders the Republic of Bulgaria, the Czech Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, Romania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 128, 24.5.2008.

9.7.2011

Official Journal of the European Union

C 204/3

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-51/08) (1)

2011/C 204/04

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and S. Ossowski, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent, and J.-J. Lorang, avocat)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), French Republic (represented by: G. de Bergues and M. Messmer, Agents), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: J. Fazekas, R. Somssich, K. Veres and M. Fehér, Agents), Republic of Poland (represented by: M. Dowgielewicz, C. Herma and D. Lutostańska, Agents), Slovak Republic (represented by: J. Čorba, Agent)

Re:

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality condition for access to the profession of notary, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 43 EC;

2.	Dismisses the action as the remainder;

Orders the European Commission, the Grand Duchy of Luxembourg, the Czech Republic, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 128, 24.5.2008.

9.7.2011

Official Journal of the European Union

C 204/3

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Portuguese Republic

(Case C-52/08) (1)

(Failure by a Member State to fulfil its obligations - Notaries - Directive 2005/36/EC)

2011/C 204/05

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: represented by H. Støvlbæk and P. Andrade, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent, and by K. Smith, Barrister)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes and F.S. Gaspar Rosa, Agents)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Slovenia (represented by: V. Klemenc and Ž. Cilenšek Bončina, Agents), Slovak Republic (represented by: J. Čorba, Agent)

Re:

Failure by a Member State to fulfil its obligations — Failure to adopt within the period prescribed, with regard to the profession of notary, the provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22), which repealed Directive 89/49/EEC (OJ 1989 L 19, p. 16)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs;

3.	Orders the Czech Republic, the Republic of Lithuania, the Republic of Slovenia, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 107, 26.4.2008.

9.7.2011

Official Journal of the European Union

C 204/4

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Republic of Austria

(Case C-53/08) (1)

2011/C 204/06

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Braun and H. Støvlbæk, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Behzadi-Spencer, Agent)

Defendant: Republic of Austria (represented by: E. Riedl, M. Aufner and G. Holley, Agents)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), Federal Republic of Germany (represented by: M. Lumma and J. Kemper, Agents), French Republic (represented by: G. de Bergues and B. Messmer, Agents), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: R. Somssich, K. Veres and M. Fehér, Agents), Republic of Poland (represented by: M. Dowgielewicz, C. Herma and D. Lutostańska, Agents), Republic of Slovenia (represented by: V. Klemenc and Ž. Cilenšek Bončina, Agents), Slovak Republic (represented by: J. Čorba, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 and 45 EC — Failure to transpose, as regards the profession of notary, Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16) and Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) — National legislation making the exercise of the profession of notary subject to the condition of nationality — Concept of ‘activity connected with the exercise of official authority’

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality condition for access to the profession of notary, the Republic of Austria has failed to fulfil its obligations under Article 43 EC;

2.	Dismisses the action as the remainder;

Orders the European Commission, the Republic of Austria, the Czech Republic, the Federal Republic of Germany, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Poland, the Republic of Slovenia, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 107, 26.4.2008.

9.7.2011

Official Journal of the European Union

C 204/4

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Federal Republic of Germany

(Case C-54/08) (1)

2011/C 204/07

Language of the case: German

Parties

Applicant: European Commission (represented by: H. Støvlbæk and G. Braun, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Behzadi-Spencer, Agent)

Defendant: Federal Republic of Germany (represented by: M. Lumma, J. Kemper, U. Karpenstein and J. Möller, Agents)

Interveners in support of the applicant: Republic of Bulgaria (represented by: T. Ivanov and E. Petranova, Agents), Czech Republic (represented by: M. Smolek, Agent), Republic of Estonia (represented by: L. Uibo, Agent), French Republic (represented by: G. de Bergues and B. Messmer, Agents), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: R. Somssich, K. Veres and M. Fehér), Republic of Austria (represented by: E. Riedl, G. Holley and M. Aufner, Agents), Republic of Poland (represented by: M. Dowgielewicz, C. Herma and D. Lutostańska, Agents), Republic of Slovenia (represented by: V. Klemenc and Ž. Cilenšek Bončina, Agents), Slovak Republic (represented by: J. Čorba and B. Ricziová, Agents)

Re:

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality condition for access to the profession of notary, the Federal Republic of Germany has failed to fulfil its obligations under Article 43 EC;

2.	Dismisses the action as the remainder;

Orders the European Commission, the Federal Republic of Germany, the Republic of Bulgaria, the Czech Republic, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Austria, the Republic of Poland, the Republic of Slovenia, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 107, 26.4.2008.

9.7.2011

Official Journal of the European Union

C 204/5

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Hellenic Republic

(Case C-61/08) (1)

2011/C 204/08

Language of the case: Greek

Parties

Applicant: European Commission (represented by: G. Zavvos and H. Støvlbæk, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent)

Defendant: Hellenic Republic (represented by: V. Christianos, E.-M. Mamouna and A. Samoni-Rantou, Agents)

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), French Republic (represented by: G. de Bergues and B. Messmer, Agents), Republic of Lithuania (represented by D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Slovenia (represented by: V. Klemenc and Ž. Cilenšek Bončina, Agents), Slovak Republic (represented by: J. Čorba and B. Ricziová, Agents)

Re:

Failure by a Member State to fulfil its obligations — Breach of Articles 43 and 45 EC and Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16) — National rules making pursuit of the profession of notary subject to a nationality requirement

Operative part of the judgment

The Court:

1.	Declares that, by imposing a nationality requirement for access to the profession of notary, the Hellenic Republic failed to fulfil its obligations under Article 43 EC;

2.	Dismisses the action as to the remainder;

3.	Orders the European Commission, the Hellenic Republic, the Czech Republic, the French Republic, the Republic of Lithuania, the Republic of Slovenia, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 92, 12.4.2008.

9.7.2011

Official Journal of the European Union

C 204/5

Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG, Zellstoff Stendal GmbH, Federal Republic of Germany, Land Sachsen-Anhalt

(Case C-83/09 P) (1)

(Appeal - State aid - Article 88(2) and (3) EC - Regulation (EC) No 659/1999 - Decision not to raise any objections - Action for annulment - Conditions for admissibility - Pleas in law that may be relied upon in an action for annulment - Notion of ‘interested party’ - Competitive link - Assignment - Market for supply)

2011/C 204/09

Language of the case: German

Parties

Appellant: European Commission (represented by: K. Gross and V. Kreuschitz, Agents)

Other parties to the proceedings: Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG (represented by: R. Nierer and L. Gordalla, Rechtsanwälte), Zellstoff Stendal GmbH (represented by: T. Müller-Ibold and K. Karl, Rechtsanwälte), Federal Republic of Germany, Land Sachsen-Anhalt

Re:

Appeal against the judgment of 10 December 2008 in Case T-388/02 Kronoply and Kronotex v Commission inasmuch as the Court of First Instance (Seventh Chamber) held admissible (albeit ultimately unfounded) an action for annulment of the Commission’s decision of 19 June 2002 to raise no objections in relation to the aid granted by the German authorities in favour of Zellstoff Stendal for the construction of a production plant for pulp — Incorrect assessment of the conditions for the admissibility of an action for annulment of a Commission decision based on Article 88(3) EC, brought by a party concerned within the meaning of Article 88(2) EC

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Commission and Zellstoff Stendal GmbH to bear their own costs.

(1) OJ C 102, 1.5.2009.

9.7.2011

Official Journal of the European Union

C 204/6

Judgment of the Court (Fourth Chamber) of 12 May 2011 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein Westfalen — Germany) — Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen e.V. v Bezirksregierung Amsberg

(Case C-115/09) (1)

(Directive 85/337/EEC - Environmental impact assessment - Århus Convention - Directive 2003/35/EC - Access to justice - Non-governmental organisations for the protection of the environment)

2011/C 204/10

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein Westfalen

Parties to the main proceedings

Applicant: Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen e.V.

Defendant: Bezirksregierung Arnsberg

Intervening party: Trianel Kohlekraftwerk Lünen GmbH &Co. KG

Re:

Reference for a preliminary ruling — Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Interpretation of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17) — Right of non-governmental organisations to appeal against decisions authorising projects which may have significant effects on the environment — Extent of that right — Possibility of relying on all relevant rules or only on rules based directly on Community law, including rules which protect only the public interest and not the rights of individuals — Substantive requirements if only rules based on Community law may be relied on

Operative part of the judgment

Article 10a of Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, precludes legislation which does not permit a non-governmental organisation promoting environmental protection, referred to in Article 1(2) of Directive 85/337, to challenge before the courts, in the context of an action brought against a decision authorising projects ‘likely to have significant effects on the environment’ within the meaning of Article 1(1) of Directive 85/337, as amended by Directive 2003/35, the infringement of a rule flowing from EU environment law and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals.

Such an non-governmental organisation can derive, from the final sentence of the third paragraph of Article 10a of Directive 85/337, as amended by Directive 2003/35, the right to challenge before the courts, in the context of an action brought against a decision authorising projects ‘likely to have significant effects on the environment’ within the meaning of Article 1(1) of Directive 85/337, as amended, the infringement of the national rules flowing from Article 6 of Directive 92/43/EC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2006/105/EC of 20 November 2006, although national procedural law does not permit such a challenge, on the ground that the rules relied on protect only the interests of the general public and not the interests of individuals.

(1) OJ C 141, 20.6.2009.

9.7.2011

Official Journal of the European Union

C 204/6

Judgment of the Court (Third Chamber) of 12 May 2011 — Grand Duchy of Luxembourg v European Parliament and Council of the European Union

(Case C-176/09) (1)

(Action for annulment - Directive 2009/12/EC - Airport charges - Scope - Airports whose annual traffic is over 5 million passenger movements per year and those with the highest passenger movements in each Member State - Validity - Principles of equal treatment, proportionality and subsidiarity)

2011/C 204/11

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent, and by P. Kinsch, avocat)

Intervener in support of the applicant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

Defendants: European Parliament (represented by: A. Troupiotis and A. Neergaard, acting as Agents), Council of the European Union (represented by: E. Karlsson and M. Moore, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: K. Simonsson and C. Vrignon, acting as Agents)

Re:

Action for annulment — Annulment of the end of Article 1(2) of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ 2009 L 70, p. 11) — Application of the directive to airports with the highest passenger movement in each Member State — Luxembourg-Findel airport — Breach of the principles of equal treatment, subsidiarity and proportionality

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

3.	Orders the Slovak Republic and the European Commission to bear their own costs.

(1) OJ C 180, 1.8.2009.

9.7.2011

Official Journal of the European Union

C 204/7

Judgment of the Court (Second Chamber) of 19 May 2011 — European Commission v Republic of Malta

(Case C-376/09) (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 2037/2000 - Article 4(4)(v) and Article 16 - Requirement to decommission fire protection systems and fire extinguishers containing halons for non critical uses on board ships - Exceptions - Critical uses of halons 1301 and 2402)

2011/C 204/12

Language of the case: English

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and E. Depasquale, acting as Agents)

Defendant: Republic of Malta (represented by: S. Camilleri and A. Buhagiar, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 4(4)(v) and Article 16 of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (OJ 2000 L 244, p. 1) — Limitation on the placing on the market and use of controlled substances — Halons — Requirement to decommission fire protection systems and fire extinguishers containing halons — Fire protection systems and extinguishers on ships

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs.

(1) OJ C 267, 7.11.2009.

9.7.2011

Official Journal of the European Union

C 204/7

Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Republic of Poland) — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-410/09) (1)

(Act concerning the conditions of accession to the European Union - Article 58 - Directive 2002/21/EC - Commission guidelines - No publication in the Official Journal of the European Union in the language of a Member State - Enforceability)

2011/C 204/13

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Polska Telefonia Cyfrowa sp. z o.o.

Defendant: Prezes Urzędu Komunikacji Elektronicznej

In the presence of: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 58 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) — Publication of acts in the Official Journal of the European Union — Application by the regulatory authority of a Member State of Commission guidelines not published in the language of that State

Operative part of the judgment

Article 58 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and the adjustments to the Treaties on which the European Union is founded must be interpreted as not precluding a national regulatory authority from referring to the Commission Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services in a decision by which that national regulatory authority imposes certain regulatory obligations on an operator of electronic communications services, notwithstanding the fact that those guidelines have not been published in the Official Journal of the European Union in the language of the Member State in question, even though that language is an official language of the Union.

(1) OJ C 24, 30.1.2010.

9.7.2011

Official Journal of the European Union

C 204/8

Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Republic of Austria

(Case C-441/09) (1)

(Failure of a Member State to fulfil obligations - Value added tax - Directive 2006/112/EC - Application of a reduced rate - Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption - Supply, importation and acquisition of certain live animals, in particular horses)

2011/C 204/14

Language of the case: German

Parties

Applicant: European Commission (represented by: D. Triantafyllou and B.-R. Killmann, acting as Agents)

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

Interveners in support of the defendant: French Republic (represented by: G. de Bergues and B. Beaupère-Manokha, acting as Agents), Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 96 and 98, read in conjunction with Annex III, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Reduced rate — Supply, importation and acquisition of certain live animals (in particular horses) which are not intended for the preparation or production of foodstuffs for human or animal consumption.

Operative part of the judgment

The Court:

Declares that, by applying a reduced rate of value added tax to all supplies, imports and intra-Community acquisitions of horses, the Republic of Austria has failed to fulfil its obligations under Articles 96 and 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

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

3.	Orders the French Republic and the Kingdom of the Netherlands to bear their own costs.

(1) OJ C 24, 30.1.2010.

9.7.2011

Official Journal of the European Union

C 204/8

Judgment of the Court (First Chamber) of 19 May 2011 (reference for a preliminary ruling from the Corte d’appello di Firenze (Italy)) — Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle v Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa

(Case C-452/09) (1)

(Directive 82/76/EEC - Freedom of establishment and freedom to provide services - Doctors - Acquisition of the title of medical specialist - Remuneration during the period of training - Five-year limitation period in respect of the right to payment of periodic remuneration)

2011/C 204/15

Language of the case: Italian

Referring court

Corte d’appello di Firenze

Parties to the main proceedings

Applicants: Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle

Defendants: Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa

Re:

Reference for a preliminary ruling — Corte di Appello di Firenze (Court of Appeal, Florence) — Interpretation of Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1982 L 43, p. 21) — Training of medical specialists — Right to appropriate remuneration during the period of training — Direct effect of a directive that has not yet been transposed into national law — Whether it is possible for a Member State to rely, in relation to the period preceding the first implementing legislation, on five-year or ten-year limitation in respect of a right arising under the directive

Operative part of the judgment

European Union law must be interpreted as not precluding a Member State from relying on the expiry of a reasonable limitation period as a defence in legal proceedings brought by an individual for the purpose of safeguarding rights conferred by a directive, even though the Member State did not transpose that directive correctly, on condition that, by its conduct, that Member State was not responsible for the delay in bringing the action. The finding by the Court that there has been a breach of European Union law does not affect the starting point of the limitation period, in the case where that breach is not in doubt.

(1) OJ C 24, 30.1.2010.

9.7.2011

Official Journal of the European Union

C 204/9

Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Federal Republic of Germany

(Case C-453/09) (1)

2011/C 204/16

Language of the case: German

Parties

Applicant: European Commission (represented by: D. Triantafyllou and B.-R. Killmann, acting as Agents)

Defendant: Federal Republic of Germany (represented by: J. Möller and C. Blaschke, acting as Agents)

Re:

Operative part of the judgment

The Court:

Declares that, by applying a reduced rate of value added tax to all supplies, imports and intra-Community acquisitions of horses, the Federal Republic of Germany has failed to fulfil its obligations under Articles 96 and 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

2.	Orders the Federal Republic of Germany to pay the costs;

3.	Orders the French Republic and the Kingdom of the Netherlands to bear their own costs.

(1) OJ C 24, 30.1.2010.

9.7.2011

Official Journal of the European Union

C 204/9

Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Marknadsdomstolen (Sweden)) — Konsumentombudsmannen v Ving Sverige AB

(Case C-122/10) (1)

(Reference for a preliminary ruling - Directive 2005/29/EC - Articles 2(i) and 7(4) - Commercial communication published in a newspaper - Meaning of invitation to purchase - Entry-level price - Information which an invitation to purchase has to contain)

2011/C 204/17

Language of the case: Swedish

Referring court

Marknadsdomstolen

Parties to the main proceedings

Applicant: Konsumentombudsmannen

Defendant: Ving Sverige AB

Re:

Reference for a preliminary ruling — Marknadsdomstolen — Interpretation of Articles 2(7)(i) and 7(4)(a) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — Advertisement, published in a newspaper, concerning a promotional offer intended for consumers relating to package travel to a specific destination during a specified period with indication of an entry-level price — Meaning of invitation to purchase — Requirements as to the information to be included in the marketing of a product

Operative part of the judgment

The words ‘thereby enables the consumer to make a purchase’ in Article 2(i) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that an invitation to purchase exists as soon as the information on the product advertised and its price is sufficient for the consumer to be able to make a transactional decision, without it being necessary for the commercial communication also to offer an actual opportunity to purchase the product or for it to appear in proximity to and at the same time as such an opportunity.

Article 2(i) of Directive 2005/29 must be interpreted as meaning that the requirement relating to the indication of the price of the product may be met if the commercial communication contains an entry-level price, that is to say the lowest price for which the advertised product or category of products can be bought, while the advertised product or category of products are available in other versions or with other content at prices which are not indicated. It is for the national court to ascertain, on the basis of the nature and characteristics of the product and the commercial medium of communication used, whether the reference to an entry-level price enables the consumer to take a transactional decision.

Article 2(i) of Directive 2005/29 must be interpreted as meaning that a verbal or visual reference to the product makes it possible to meet the requirement relating to the indication of the product’s characteristics, and that includes a situation where such a verbal or visual reference is used to designate a product which is offered in many versions. It is for the national court to ascertain, on a case-by-case basis, taking into account the nature and characteristics of the product and the medium of communication used, whether the consumer has sufficient information to identify and distinguish the product for the purpose of taking a transactional decision.

Article 7(4)(a) of Directive 2005/29 must be interpreted as meaning that it may be sufficient for only certain of a product’s main characteristics to be given and for the trader to refer in addition to its website, on the condition that on that site there is essential information on the product’s main characteristics, price and other terms in accordance with the requirements in Article 7 of that directive. It is for the national court to assess, on a case-by-case basis, taking into consideration the context of the invitation to purchase, the medium of communication used and the nature and characteristics of the product, whether a reference only to certain main characteristics of the product enables the consumer to take an informed transactional decision.

Article 7(4)(c) of Directive 2005/29 must be interpreted as meaning that a reference only to an entry-level price in an invitation to purchase cannot be regarded, in itself, as constituting a misleading omission. It is for the national court to ascertain whether a reference to an entry-level price is sufficient for the requirements concerning the reference to a price, such as those set out in that provision, to be considered to be met. That court will have to ascertain, inter alia, whether the omission of the detailed rules for calculating the final price prevents the consumer from taking an informed transactional decision and, consequently, leads him to take a transactional decision which he would not otherwise have taken. It is also for the national court to take into consideration the limitations forming an integral part of the medium of communication used; the nature and the characteristics of the product and the other measures that the trader has actually taken to make the information available to consumers.

(1) OJ C 113, 1.5.2010.

9.7.2011

Official Journal of the European Union

C 204/10

Judgment of the Court (Second Chamber) of 19 May 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mathilde Grasser v Freistaat Bayern

(Case C-184/10) (1)

(Directive 91/439/EEC - Mutual recognition of driving licences - Driving licence issued by a Member State in disregard of the residence condition - Refusal of recognition by the host Member State based solely on disregard of the residence condition)

2011/C 204/18

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Mathilde Grasser

Defendant: Freistaat Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Interpretation of Articles 1(2) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) — Driving licence issued by a Member State to a national of another Member State normally resident in that other Member State at the time of issue of the licence and never having been the subject of a measure withdrawing the national licence — Whether Member States may refuse to recognise a driving licence issued by another Member State on the sole basis of the infringement of the residence condition

Operative part of the judgment

Articles 1(2), 7(1)(b) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Commission Directive 2008/65/EC of 27 June 2008, must be interpreted as not precluding a host Member State from refusing to recognise in its territory a driving licence issued by another Member State, where it is established, on the basis of entries appearing in that licence, that the normal residence condition, laid down in Article 7(1)(b) of that directive, has not been observed. The fact that the host Member State has not applied any measure under Article 8(2) of that directive to the licence holder is irrelevant in that regard.

(1) OJ C 179, 3.7.2010.

9.7.2011

Official Journal of the European Union

C 204/11

Judgment of the Court (Seventh Chamber) of 19 May 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla León (Spain)) — David Barcenilla Fernández (C-256/10), Pedro Antonio Macedo Lozano (C-261/10) v Gerardo García, S.L.

(Joined Cases C-256/10 and C-261/10) (1)

(Directive 2003/10/EC - Exposure values - Noise - Hearing protection - Effectiveness)

2011/C 204/19

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla León

Parties to the main proceedings

Applicants: David Barcenilla Fernández (C-256/10), Pedro Antonio Macedo Lozano (C-261/10)

Defendant: Gerardo García, S.L.

Re:

References for a preliminary ruling — Tribunal Superior de Justicia de Castilla y León — Interpretation of Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 2003 L 42, p. 38) — Exceeding noise exposure action values aimed at avoiding or reducing exposure — Effectiveness of the directive

Operative part of the judgment

Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), as amended by Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007, must be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A), measured without taking account of the effect of individual hearing protectors, fails to fulfil the obligations resulting from that Directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A), as that employer is obliged to implement a programme of technical or organisational measures intended to reduce such noise exposure to a level of less than 85 dB(A), measured without taking into account the effect of the individual hearing protectors.

Directive 2003/10, as amended by Directive 2007/30, must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors on the sole ground that it has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level. However, national law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors, can require the employer to comply with the preventive obligations set out in Article 5(2) of that directive.

(1) OJ C 221, 14.8.2010.

9.7.2011

Official Journal of the European Union

C 204/11

Judgment of the Court (Eighth Chamber) of 19 May 2011 — Union Investment Privatfonds GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Unicre-Cartão International De Crédito SA

(Case C-308/10 P) (1)

(Appeal - Community trade mark - Opposition proceedings - Regulation (EC) No 40/94 - Article 74(2) - Evidence not submitted in support of the opposition within the period prescribed for that purpose - Failure to take account thereof - Discretion of the Board of Appeal)

2011/C 204/20

Language of the case: German

Parties

Appellant: Union Investment Privatfonds GmbH (represented by: J.Zindel, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Unicre-Cartão International De Crédito SA

Re:

Appeal brought against the judgment of the General Court (Third Chamber) of 27 April 2010 — Union Investment Privatfonds v OHIM — Unicre-Cartão International De Crédito, by which the General Court dismissed the action for annulment brought by the holder of the national figurative marks UniFLEXIO, UniVARIO and UniZERO for goods and services in Classes 35 and 36 against the decision of the Second Board of Appeal of OHIM of 10 October 2006 dismissing the appeal brought against the decision of the Opposition Division rejecting the appellant’s opposition to registration of the Community figurative mark unibanco for goods in Classes 36 and 38 — Misinterpretation of Article 74(2) of Regulation (EC) No 40/94 — Discretion of the Board of Appeal in respect of evidence not submitted in support of the opposition within the period prescribed for that purpose.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Union Investment Privatfonds GmbH to pay the costs.

(1) OJ C 246, 11.9.2010.

9.7.2011

Official Journal of the European Union

C 204/12

Judgment of the Court (Eighth Chamber) of 18 May 2011 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf

(Case C-423/10) (1)

(Common Customs Tariff - Combined Nomenclature - Classification for customs purposes - Electrical connectors - Subheading 8536 69 - Plugs and sockets)

2011/C 204/21

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Delphi Deutschland GmbH

Defendant: Hauptzollamt Düsseldorf

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1), Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1) and Commission Regulation (EC) No 1549/2006 of 17 October 2006 (OJ 2006 L 301, p. 1) — Electrical connectors, intended to be crimped to the ends of electric wire and housed in plastic casing in order to join two cables — Classification under subheading 8536 69 of the Combined Nomenclature

Operative part of the judgment

Subheading 8536 69 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended with respect to 2005, 2006 and 2007 respectively by Commission Regulation (EC) No 1810/2004 of 7 September 2004, Commission Regulation (EC) No 1719/2005 of 27 October 2005 and Commission Regulation (EC) No 1549/2006 of 17 October 2006, must be interpreted as meaning that electrical connectors, such as those at issue in the main proceedings, are not excluded from that subheading on the ground that they do not ensure the insulation of the connection at the connection point or that they represent only some of the plugs and sockets manufactured subsequently, provided that they permit multi-way connection, for instance between appliances, cables and connector boards, simply by plugging the attached plugs into the attached sockets with no assembly work required.

(1) OJ C 317, 20.11.2010.

9.7.2011

Official Journal of the European Union

C 204/12

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 18 March 2011 — Folien Fischer AG and Fofitec AG v RITRAMA SpA

(Case C-133/11)

2011/C 204/22

Language of the case: German

Referring court

Bundesgerichtshof (Federal Court of Justice)

Parties to the main proceedings

Applicants: Folien Fischer AG and Fofitec AG

Defendant: RITRAMA SpA

Question referred

Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that jurisdiction in matters relating to tort or delict also exists in respect of an action for a negative declaration in which a potential injuring party asserts that the party potentially injured by a particular situation has no claim in tort or delict (in this case, infringement of the provisions of anti-trust law)?

(1) OJ 2001 L 12, p. 1.

9.7.2011

Official Journal of the European Union

C 204/12

Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 28 March 2011 — Condor Flugdienst GmbH v Jürgen Dörschel

(Case C-151/11)

2011/C 204/23

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Condor Flugdienst GmbH

Defendant: Jürgen Dörschel

Questions referred

Does a passenger have a right to payment of compensation under Article 7 of Regulation No 261/2004 (1) in the case where the flight, following its departure according to schedule, is discontinued and the aircraft, before arriving at the airport of destination, returns to the airport of departure and subsequently takes off again with a delay which is relevant for payment of compensation?

2.	Is there a discontinuance in the case where, after the aircraft doors have been closed, the journey is not continued? From what point is there a discontinuance of the start, rather than a delayed start?

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

9.7.2011

Official Journal of the European Union

C 204/13

Reference for a preliminary ruling from the Arbeitsgericht Munich (Germany) lodged on 28 March 2011 — Johann Odar v Baxter Deutschland GmbH

(Case C-152/11)

2011/C 204/24

Language of the case: German

Referring court

Arbeitsgericht Munich

Parties to the main proceedings

Applicant: Johann Odar

Defendant: Baxter Deutschland GmbH

Questions referred

Is a national rule which provides that different treatment on the ground of age may be lawful if, in the framework of an occupational social security scheme, the management and the works council have excluded from social plan benefits employees who are financially secure because they are entitled to a pension after, as the case may be, drawing unemployment benefit, contrary to the prohibition of discrimination on the ground of age, laid down by Articles 1 and 16 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (1) or is that unequal treatment justified under Article 6(1), second sentence, point (a), of Directive 2000/78/EC?

Is a rule of an occupational social security scheme which provides that, in the case of employees older than 54 years of age who are made redundant on operational grounds, an alternative calculation will be made of the compensation on the basis of the earliest possible date on which their pension will begin and, by comparison with the more normal method of calculation, will in particular take account of the length of service, whereby the smaller amount of compensation, of at least one half of the normal sum in compensation, will be paid, contrary to the prohibition of discrimination on the ground of age laid down by Articles 1 and 16 of Directive 2000/78/EC, or is that unequal treatment justified under Article 6(1), second sentence, point (a), of Directive 2000/78/EC?

Is a rule of an occupational social security scheme which provides that, in the case of employees older than 54 years of age who are made redundant on operational grounds, an alternative calculation will be made of the compensation on the basis of the earliest possible date on which their pension will begin and, by comparison with the more normal method of calculation, will in particular take account of the length of service, whereby the smaller amount of compensation, of at least one half of the normal sum in compensation, will be paid, the alternative method of calculation taking into account a retirement pension on the ground of disability, contrary to the prohibition of discrimination on the ground of disability laid down by Articles 1 and 16 of Directive 2000/78/EC?

(1) OJ 2000 L 303, p. 16.

9.7.2011

Official Journal of the European Union

C 204/13

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 1 April 2011 — Bawaria Motors Spółka z o.o. and Minister Finansów

(Case C-160/11)

2011/C 204/25

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellants: Bawaria Motors Spółka z o.o., Minister Finansów

Question referred

Are the provisions of Articles 313(1) and 314 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (‘Directive 2006/112’), in conjunction with Articles 136 and 315 thereof, to be interpreted as permitting the application of the special ‘margin’ scheme for taxable dealers in relation to supplies of second-hand goods also where they resell the purchased passenger vehicles and other motor vehicles to which the tax exemption for the supply of passenger vehicles and other vehicles by taxable persons who only have a partial right to deduct input tax on the purchase thereof, as laid down in Article 86(3) of the Ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as amended; hereinafter: ‘Law on VAT’), was applied pursuant to the Polish national provisions laid down in Paragraph 13(1)(5) of the Decree of the Minister for Finance of 28 November 2008 on the implementation of certain provisions of the Law on the tax on goods and services (Dziennik Ustaw No 212, item 1336, as amended), where those passenger vehicles and motor vehicles were second-hand goods within the meaning of Article 43(2) of the Law on VAT and Article 311(1)(1) of Directive 2006/112?

(1) OJ 2006 L 347 p. 1.

9.7.2011

Official Journal of the European Union

C 204/14

Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 13 April 2011 — HID, BA v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

(Case C-175/11)

2011/C 204/26

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: HID, BA

Defendants: Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

Questions referred

Is a Member State precluded by the provisions of Council Directive 2005/85/EC of 1st December, 2005 (1), or by general principles of European Union Law from adopting administrative measures which require that a class of asylum applications defined on the basis of the nationality or country of origin of the asylum applicant be examined and determined according to an accelerated or prioritised procedure?

Is Article 39 of the above Council Directive when read in conjunction with its Recital (27) and Article 267 TFEU to be interpreted to the effect that the effective remedy thereby required is provided for in national law when the function of review or appeal in respect of the first instance determination of applications is assigned by law to an appeal to the Tribunal established under Act of Parliament with competence to give binding decisions in favour of the asylum applicant on all matters of law and fact relevant to the application notwithstanding the existence of administrative or organisational arrangements which involve some or all of the following:

—	The retention by a government Minister of residual discretion to override a negative decision on an application;

—	The existence of organisational or administrative links between the bodies responsible for first instance determination and the determination of appeals;

—	The fact that the decision making members of the Tribunal are appointed by the Minister and serve on a part-time basis for a period of three years and are remunerated on a case by case basis;

—	The retention by the Minister of powers to give directions of the kind specified in ss. 12, 16(2B)(b) and 16(11) of the above Act?

(1) OJ L 326, p. 13

9.7.2011

Official Journal of the European Union

C 204/15

Action brought on 20 April 2011 — European Commission v Republic of Poland

(Case C-193/11)

2011/C 204/28

Language of the case: Polish

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

—

declare that, by applying the special VAT scheme for travel agents in cases involving the sale of travel services to persons who are not travellers, as provided for in Article 119(3) of the Law of 11 March 2004 on the taxation of goods and services (the Polish Law on VAT), the Republic of Poland has failed to comply with its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the Commission’s view, the application by the Republic of Poland, on the basis of Article 119 of the Polish Law on VAT, of the special VAT scheme for travel agents also to cases in which the recipient of travel services is not a traveller is incompatible with Articles 306 to 310 of Directive 2006/112/EC as currently in force.

In support of its contention, the Commission submits that Articles 306 to 310 of Directive 2006/112/EC correspond to the wording previously set out in Article 26 of the Sixth VAT Directive. Five out of the six official language versions at that time (that is to say, all of the language versions except for the English) were entirely consistent and consistently used the term ‘traveller’ throughout the text of Article 26. The use of the term ‘customer’ [‘nabywca’] is found solely in a number of language versions of Article 306 of Directive 2006/112/EC which are based on the English-language version. In those cases, however, the further provisions relating to the special scheme (Articles 307 to 310) use the notion of ‘traveller’, which indicates that the notion of ‘customer’ was wrongly used in Article 306.

Furthermore, even if it were to be agreed that the purpose of the special VAT scheme for travel agents, that is to say, the simplification of account settling, would be more effectively achieved by an interpretation which took account of customers, it appears from the Court’s case-law that application of that scheme based exclusively on a purposive construction, contrary to the unequivocal decision of the European Union legislature which follows from the content of the provisions currently in force, cannot be supported.

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

9.7.2011

Official Journal of the European Union

C 204/15

Appeal brought on 28 April 2011 by the Italian Republic against the judgment delivered by the General Court (Eighth Chamber) on 3 February 2011 in Case T-3/09 Italian Republic v European Commission

(Case C-200/11 P)

2011/C 204/29

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: P. Gentili, avvocato de lo Stato)

Other party to the proceedings: European Commission

Form of order sought

Set aside the judgment of the General Court in Case T-3/09 and, ruling on the substance, annul the Commission’s Decision of 21 October 2008 on State aid C 20/08 (ex N 62/08) which Italy is planning to implement through a modification of scheme N 59/2004 concerning a temporary defensive mechanism for shipbuilding, registered as number C(2008) 6015 final.

Pleas in law and main arguments

The Italian Republic has lodged an appeal before the Court of Justice against the judgment delivered on 3 February 2011 in Case T-3/09, in which the General Court of the European Union dismissed Italy's action against the Commission's decision of 21 October 2008 on State aid C 20/2008 (ex N 62/2008) which Italy is planning to implement through a modification of scheme N 59/2004 concerning a temporary defensive mechanism for shipbuilding, registered as number C(2008) 6015 final, notified to the Italian Republic on 22 October 2008 by note of 22 October 2008 No SG-Greffe (2008) D/206436.

In support of its appeal, the Italian Republic relies on the following grounds.

First ground: error as to the facts and breach of Articles 87(1) and 88(3) EC and Article 1(c) of Regulation (EC) No 659/1999 (1) and Article 4 of Regulation (EC) No 794/2004. (2)

By the 2008 Finance Law, Italy intended simply to allocate additional funds for the aid to support shipbuilding provided for in the 2004 Finance Law and the Ministerial Decree of 2 February 2004, which had already been authorised by the Commission on the basis of Regulation (EC) No 1177/2002 (3) (‘the TDM Regulation’), without changing the conditions on which the aid itself was granted or the undertakings and types of contract which could benefit from it. In fact, the funds were exhausted because more applications for aid were submitted than was anticipated. Due to its intrinsic structure, it is not possible to predetermine the total amount of such aid; therefore, if additional funds are granted for such aid, that cannot entail a substantial amendment of the aid that has already been authorised, that is, it cannot constitute new aid. The General Court erred in failing to take account of those matters.

Second ground: breach of Articles 2, 3, 4 and 5 of Regulation (EC) No 1177/2002.

The Commission was of the view that the 2008 Finance Law constituted new aid because the scheme provided for in the TDM Regulation expired on 31 March 2005 and was no longer applicable after that date. That is not correct, because that date simply referred to the deadline for the signature of shipbuilding contracts which could be subsidised; however, the regulation went on to provide that the aid was to be granted to undertakings which delivered the ships in question within three years from the date of signing the final contract (which could be extended for no more than three years). The regulation could therefore be applied to such contracts at least until 31 March 2008. The 2008 Finance Law, which was approved on 24 December 2007, is in fact a measure which gives effect to the regulation and is designed to enable aid to be paid in respect of all contracts signed before 31 March 2005. Accordingly, the legal basis for the 2008 Finance Law is the TDM Regulation, which the Commission should have applied to authorise it. The General Court erred in finding that, after 31 March 2005, the Commission ceased to have any power to assess measures relating to shipbuilding on the basis of the TDM Regulation, even if those measures related to contracts signed before 31 March 2005.

Third ground: breach of Articles 87(2) and (3) and 88(3) EC and breach of essential procedural requirements on the ground of failure to state adequate reasons (Article 253 EC)

The Commission was of the view that there is no provision in the Treaty or any other source on the basis of which the aid referred to in the 2008 Finance Law can be regarded as compatible with the common market. That is incorrect, because what was at issue was the protection of the Community shipbuilding industry from Korean dumping, so that Article 87(3)(b) (important projects of Community interest) or Article 87(3) (c) (aid to promote the development of a given economic sector) and, in any event, the principle of proportionality may have been applicable: to provide financial assistance in respect of some contracts but not others because the relevant funds were exhausted would have constituted a disproportionate means of protecting public finances since it would have brought about a serious distortion of competition between the undertakings concerned. The Commission failed to consider any of those potential grounds for derogation from the prohibition of State aid. The General Court erred in finding that Italy had not put forward any ground justifying derogation from the prohibition of State aid, in particular on the basis of unequal treatment and the distortion of competition that would have occurred if aid had been denied to some undertakings and granted to others in the same situation. Instead, that court erred in finding that adequate reasons were given for the Commission’s decision.

Fourth ground: breach of the principle of the protection of legitimate expectations and equal treatment (non-discrimination).

However, after the Commission approved the scheme provided for in the Ministerial Decree of 2 February 2004, there was a legitimate expectation that a law would also be approved the purpose of which was simply to grant additional funds for the financing of that scheme. The principle of equal treatment or non-discrimination also requires such an approach because, as the funds were exhausted, only some of the operators had received aid but not others who were in the same situation. The General Court erred in finding that it was clear to Italy and the persons concerned that the 2004 approval decision imposed a ceiling on the aid that could be granted of EUR 10 million. On the contrary, there was a legitimate expectation that all those entitled to aid would be able to receive it.

(1) OJ 1999 L 83, p. 1.

(2) OJ 2004 L 140, p. 1.

(3) OJ 2002 L 172, p. 1.

9.7.2011

Official Journal of the European Union

C 204/16

Appeal brought on 27 April 2011 by Union of European Football Associations (UEFA) against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-55/08: Union of European Football Associations (UEFA) v European Commission

(Case C-201/11 P)

2011/C 204/30

Language of the case: English

Parties

Appellant: Union of European Football Associations (UEFA) (represented by: D. Anderson QC, D. Piccinin, Barrister, B. Keane, Solicitor, T. McQuail, Solicitor)

Other parties to the proceedings: European Commission, Kingdom of Belgium, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant submits that the contested judgment should be set aside on the following grounds:

(a)	The General Court erred in law in the application of the Directive 89/552 (1), both as regards the requirement of clarity and transparency and the characterisation of the EURO as an event of major importance for society.

(b)	The General Court erred in law in the application of the Treaty provisions concerning competition.

(c)	The General Court erred in law in the application of the Treaty provisions concerning the freedom to provide services and proportionality.

(d)	The General Court erred in law in the application of UEFA's right to property.

(e)	The General Court erred in law by finding that the contested decision contained an adequate statement of reasons in respect of (i) the characterization of the EURO as an event of major importance for society, (ii) competition, (iii) freedom to provide services, and (iv) property rights.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities

OJ L 298 p. 23

9.7.2011

Official Journal of the European Union

C 204/17

Appeal brought on 13 May 2011 by the European Commission against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.

(Case C-231/11 P)

2011/C 204/31

Language of the case: German

Parties

Appellant: European Commission (represented by: A. Antoniadis, R. Sauer, N. von Lingen, Agents)

Other parties to the proceedings: Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA, Nuova Magrini Galileo SpA.

Form of order sought

The Commission claims that the Court should:

First,

—

set aside paragraph 2 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it is based on the finding of the Court in Paragraph 157 of the judgment under appeal, that the Commission is obliged to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable;

—

set aside paragraph 3 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment under appeal imposed fines anew to include a determination of the proportion of the fine for which each individual company was liable;

Second, in the alternative,

—

set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it imposed on the Commission in accordance with Paragraph 157 of the judgment under appeal an obligation to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable;

—

set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 of the judgment under appeal in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment determines the proportion of the fine for which each individual company was liable, and thereby alters the Commission Decision of 24. January 2007 (C(2006) 6762 final) in COMP/38.899 — Gas insulated switchgear;

Third,

—	reject the claims in Joined Cases T-122/07, T-123/07 and T-124/07 for the annulment of Article 2(j) (k) and (l) of Decision C(2006) 6762 final;

Fourth,

—	order the respondents and applicants to pay the costs both of the appeal and of the proceedings at first instance.

Grounds of appeal and main arguments

The obligation imposed on the Commission, to apportion individual liability on parties who are jointly and severally liable as between themselves, misconceives the limits on the powers and duties conferred on the Commission under Article 23 of Regulation No 1/2003 and encroaches on the national legal systems. Those powers and duties extend to the external relationship, in other words, the imposition of fines and when appropriate the determination that the parties to whom the decision is addressed should be jointly and severally liable. The internal relationship of parties who are jointly and severally liable as the result of a determination of joint and severally liability, which may include rights of recourse by one joint debtor against another is conversely, as a matter of principle, subject to the law of the Member States.

2.	The General Court exceeded the boundaries of its unlimited jurisdiction to review, where it determined fixed proportions of liability in that internal relationship with regard to possible claims for redress before the national courts.

The duty asserted by the Court that the Commission must undertake a comprehensive resolution of the legal effects of the attribution of joint and several liability cannot be supported by the principle that penalties must be specific to the individual and to the offence which is relied on by the General Court for that purpose; in any event it is contrary to the principle of liability of undertakings for infringements of Articles 101 and 102 TFEU.

The General Court’s ruling was ultra petita and the Court failed to respect the principle of inter partes proceedings, where it effected an allocation of liability in the internal relationship and implicitly an alteration of the decision which was not sought and was not the subject of sufficient argument.

The General Court is further in breach of the obligation to state reasons, because the supporting grounds for the decision cannot with sufficient clarity be extracted from the judgment and the General Court did not deal with the arguments put forward by the Commission in relation to joint and several liability.

6.	Finally, the judgment encroaches on the Commission’s discretion in relation to the identification of the parties who are liable.

9.7.2011

Official Journal of the European Union

C 204/18

Appeal brought on 16 May 2011 by Siemens Transmission & Distribution Limited against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.

(Case C-232/11 P)

2011/C 204/32

Language of the case: German

Parties

Appellant: Siemens Transmission & Distribution Limited (represented by: H. Wollmann and F. Urlesberger, Rechtsanwälte)

Other parties to the proceedings: Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution SA, Nuova Magrini Galileo SpA, European Commission

Form of order sought

The appellant claims that the Court should

—	vary the fourth indent of Paragraph 3 of the operative part of the contested judgment, so that the fine there imposed on is reduced to at least EUR 7 400 000;

—	alternatively, set aside Paragraph 3 of the operative part of the contested judgment, to the extent that it concerns Reyrolle, and refer the case back to the General Court;

—	in any event order the respondent to pay the costs.

Grounds of appeal and main arguments

The appellant submits that there is an infringement of the principle that penalties must be specific to the individual and to the offence. In the exercise of its unlimited jurisdiction to review the General Court misinterpreted Article 23(3) of Regulation 1/2003, where it penalised the undertaking Rolls-Royce/Reyrolle for the period from 1988 until 1998 not on the basis of the conduct of that undertaking, but instead relied on the economic power of an economic entity which only came into existence many years later (with the Reyrolle sale to VA Technologie).

Further, the appellant submits that there is an infringement of the principles, well established in the case-law of the Court of Justice, of equal treatment and proportionality. In the framework of Article 31 of Regulation 1/2003 the General Court applied systemically different methods of calculation, which significantly prejudiced the appellant as compared with other parties on whom fines were imposed. No objective justification for this discrimination is apparent.

9.7.2011

Official Journal of the European Union

C 204/18

Appeal brought on 16 May 2011 by Siemens Transmission & Distribution SA and Nuova Magrini Galileo SpA against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission

(Case C-233/11 P)

2011/C 204/33

Language of the case: German

Parties

Appellants: Siemens Transmission & Distribution SA and Nuova Magrini Galileo SpA (represented by: H. Wollmann and F. Urlesberger, Rechtsanwälte)

Other parties to the proceedings: Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution Ltd, European Commission

Form of order sought

The appellants claim that the Court should

—	set aside Paragraph 2 of the judgment of the General Court (Second Chamber) of 3 March 2011 in Joined Cases T-122/07 to T-124/07 in so far as Article 2(j) and (k) of Commission Decision C(2006) 6762 final of 24 January 2007 in case COMP/F/38.899 — Gas insulated switchgear are annulled;

—

set aside the first indent of Paragraph 3 of the judgment under appeal and uphold Article 2(j) and (k) of Commission Decision C(2006) 6762 final and, in respect of Article 2(k) of that decision, declare that each of the joint debtors in relation to the other parties who are jointly liable must pay one third of the fine of EUR 4 500 000;

—	alternatively set aside the first indent of Paragraph 3 of the judgment under appeal and refer the case back to the General Court;

—	in any event set aside Paragraph 7 of the judgment under appeal and order the respondent to pay the costs of proceedings in Case T-124/07 and the costs of the present appeal.

Pleas in law and main arguments

The General Court, going beyond what was sought by the applicants, also annulled the fine which was imposed on Schneider Electric SA alone and improperly increased the joint and several liability of the appellants. The judgment under appeal is therefore in breach of fundamental legal principles. The General Court is in breach of the principle of the right to bring proceedings and the principle which is implicit in Article 263 TFEU that no person can institute proceedings on behalf of another person.

Further, the General Court, going beyond what was sought by the applicants, intervened in relation to the validity of the Commission’s Decision against Schneider Electric SA. That improper interference with the validity is contrary to the principle of legal certainty.

The appellants were given no opportunity to state their opinion on the material findings of the General Court. That constitutes a defect in the procedure before the General Court, since thereby the appellants’ right to a hearing within the meaning of Article 6 EHCR has was infringed.

9.7.2011

Official Journal of the European Union

C 204/20

Judgment of the General Court of 24 May 2011 — NLG v Commission

(Joined Cases T-109/05 and T-444/05) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents concerning the cost elements arising from public service obligations relating to State aid - Refusal of access - Exception concerning the protection of the commercial interests of a third party - Professional secrecy - Obligation to state reasons - Equal treatment - Documents originating from a Member State)

2011/C 204/34

Language of the case: Italian

Parties

Applicant: Navigazione Libera del Golfo Srl (NLG), formerly Navigazione Libera del Golfo SpA (Naples, Italy) (represented by: S. Ravenna, and A. Abate, lawyers)

Defendant: European Commission (represented by: P. Costa de Oliveira and V. Di Bucci, Agents)

Interveners in support of the defendant: Italian Republic (represented initially by I. Braguglia, Agent, and M. Fiorilli, avvocato dello Stato, and subsequently by M. Fiorilli and R. Adam, Agent, and finally by I. Bruni, avvocato dello Stato) (Case T-444/05); Council of the European Union, (represented by: B. Driessen and A. Vitro, Agents (Case T-444/05); Caremar SpA (Naples) (represented initially by G.M. Roberti, A. Franchi and G. Bellitti, and subsequently by G.M. Roberti, G. Bellitti and I. Perego, lawyers) (Cases T-109/05 and T-444/05)

Re:

Application for annulment of Commission Decisions D(2005) 997 of 3 February 2005 and D(2005) 9766 of 12 October 2005 refusing the applicant access to certain information which was not reproduced in the published version of Commission Decision 2005/163/EC of 16 March 2004 on the State aid paid by Italy to the Adriatica, Caremar, Siremar, Saremar and Toremar shipping companies (Tirrenia Group) (OJ 2005 L 53, p. 29).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision D(2005) 997 of 3 February 2005 in so far as it concerns refusal of access to detailed elements of the extra costs borne annually by Caremar SpA relating to passenger transport services on the Naples-Beverello/Capri line both by ferries and by high-speed craft;

2.	Dismisses the remainder of the action in Case T-109/05;

3.	Orders the European Commission to bear one-third of its costs and to pay one-third of the costs incurred by Navigazione Libera del Golfo Srl (NLG), and the latter to bear two-thirds of its costs and to pay two-thirds of the costs incurred by the Commission in Case T-109/05;

4.	Orders Caremar to bear its own costs in Case T-109/05.

5.	Annuls Commission Decision D(2005) 9766 of 12 October 2005;

6.	Orders the European Commission to pay the costs in Case T-444/05;

7.	Orders the Italian Republic, the Council of the European Union and Caremar to bear their own costs.

(1) OJ C 106, 30.4.2005.

9.7.2011

Official Journal of the European Union

C 204/20

Judgment of the General Court of 24 May 2011 –Batchelor v Commission

(Case T-250/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents exchanged in the course of the assessment of the compatibility with Community law of measures taken with respect to television broadcasting activities - Refusal to grant access - Exception relating to the protection of the decision-making process - Exception relating to the protection of the purpose of inspections, investigations and audits)

2011/C 204/35

Language of the case: English

Parties

Applicant: Edward William Batchelor (Brussels, Belgium) (represented by: F. Young, Solicitor, A. Barav, Barrister, and D. Reymond, lawyer, and subsequently by A. Barav, D. Reymond and F. Carlin, Barrister)

Defendant: European Commission (represented by: C. Docksey, C. O’Reilly and P. Costa de Oliveira, Agents, and subsequently by C. O’Reilly and P. Costa de Oliveira)

Intervener in support of the applicant: Kingdom of Denmark (represented by: B. Weis Fogh and S. Juul Jørgensen, Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: initially by S. Behzadi-Spencer, L. Seeboruth and I. Rao, Agents, and subsequently by I. Rao, and G. Facenna and T. de la Mare, Barristers)

Re:

APPLICATION for annulment of the decision of the Secretary General of the Commission of 16 May 2008, refusing access to certain documents exchanged in the course of the assessment of the compatibility with Community law of measures adopted by the United Kingdom of Great Britain and Northern Ireland on the basis of Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), and for annulment of the implied decision refusing that access, deemed to have been taken on 9 April 2008

Operative part of the judgment

The Court:

1.	Dismisses as inadmissible the action against the implied decision of refusal deemed to have been adopted on 9 April 2008;

Annuls the decision of the Secretary General of the European Commission of 16 May 2008, except in so far as it concerns the information contained in the first two annexes to the letter of 19 February 2007, in respect of which the exception provided for in the first indent of Article 4(2) of 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 has been invoked;

3.	Orders the Commission to bear its own costs and to pay those incurred by Mr Edward William Batchelor;

4.	Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs and to pay the costs incurred by Mr Batchelor as a result of its intervention;

5.	Orders the Kingdom of Denmark to bear its own costs.

(1) OJ C 209, 15.8.2008.

9.7.2011

Official Journal of the European Union

C 204/21

Judgment of the General Court of 25 May 2011 — Prinz von Hannover v OHIM (Representation of a coat of arms)

(Case T-397/09) (1)

(Community trade mark - Application for Community figurative mark representing a coat of arms - Absolute ground for refusal - Imitation from a heraldic point of view of the symbol of a State - Article 7(1)(h) of Regulation (EC) No 207/2009 - Article 6 ter of the Paris Convention)

2011/C 204/36

Language of the case: German

Parties

Applicant: Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg (Hanover, Germany) (represented by: R. Stötzel and J. Hilger, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 23 July 2009 (Case R 1361/2008-1) concerning an application for registration as a Community trade mark of a figurative sign representing the coat of arms of the house of Hanover.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg to pay the costs.

(1) OJ C 297, 5.12.2009.

9.7.2011

Official Journal of the European Union

C 204/21

Judgment of the General Court of 24 May 2011 — ancotel v OHIM — Acotel (ancotel.)

(Case T-408/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark ‘ancotel’ - Earlier Community figurative mark ‘ACOTEL’ - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Relevant public)

2011/C 204/37

Language of the case: German

Parties

Applicant: ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Acotel SpA (Rome, Italy) (represented initially by D. De Simone and D. Demarinis, lawyers, and subsequently by D. De Simone, D. Demarinis and J. Wrede, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 19 June 2009 (Case R 1385/2008-1) concerning opposition proceedings between Acotel SpA and ancotel GmbH.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 June 2009 (Case R 1385/2008-1);

2.	Orders OHIM to bear its own costs and to pay those incurred by ancotel GmbH;

3.	Orders Acotel SpA to bear its own costs.

(1) OJ C 312, 19.12.2009.

9.7.2011

Official Journal of the European Union

C 204/22

Judgment of the General Court of 25 May 2011 — São Paulo Alpargatas v OHIM — Fischer (BAHIANAS LAS ORIGINALES)

(Case T-422/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark BAHIANAS LAS ORIGINALES - Earlier Community and national figurative trade marks havaianas and earlier national word mark HAVAIANAS - Relative ground for refusal - Likelihood of confusion - Similarity of signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 204/38

Language of the case: Spanish

Parties

Applicant: São Paulo Alpargatas, SA (São Paolo, Brazil) (represented by: P. Merino Baylos and A. Velázquez Ibáñez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Enrique Fischer (Buenos Aires, Argentina) (represented by: initially E. Rasche Aparicio, then M. de Justo Bailey, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 17 August 2009 (Case R 1477/2008-2), concerning opposition proceedings between São Paulo Alpargatas, SA and Enrique Fischer.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 August 2009 (Case R 1477/2008-2);

2.	Orders OHIM to pay its own costs and the costs incurred by São Paulo Alpargatas, SA;

3.	Orders Enrique Fischer to pay his own costs.

(1) OJ C 297, 5.12.2009.

9.7.2011

Official Journal of the European Union

C 204/22

Judgment of the General Court of 24 May 2011 — Space Beach Club v OHIM — Flores Gómez (SpS space of sound)

(Case T-144/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark ‘SpS space of sound’ - Earlier national and Community figurative marks ‘space ibiza’, ‘space DANCE BARCELONA’, ‘space DANCE MADRID’, ‘space DANCE VALENCIA’, ‘space DANCE MALLORCA’, ‘space DANCE EIVISSA’, ‘space SPACE IBIZA WORLD’, ‘space DANCE’ and earlier national word mark ‘SPACE VIVA’ - Relative ground for refusal - No likelihood of confusion - Lack of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 204/39

Language of the case: Spanish

Parties

Applicant: Space Beach Club, SA (San Jorge, Ibiza, Spain) (represented by: A. I. Alejos Cutili, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. F. Crespo Carrillo, Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Miguel Ángel Flores Gómez (Madrid, Spain) (represented by: A. J. Vela Ballesteros and B. C. Lamas Begué, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 18 January 2010 (Case R 766/2009-2) concerning opposition proceedings between Space Beach Club, SA and Miguel Ángel Flores Gómez.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Space Beach Club, SA to pay the costs.

(1) OJ C 134, 22.5.2010.

9.7.2011

Official Journal of the European Union

C 204/22

Judgment of the General Court of 24 May 2011 — Longevity Health Products v OHIM — Tecnifar (E-PLEX)

(Case T-161/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark E-PLEX - Earlier national word mark EPILEX - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 204/40

Language of the case: English

Parties

Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tecnifar — Industria Tecnica Farmaceutica, SA (Lisbon, Portugal)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 5 February 2010 (Case R 662/2009-4), relating to opposition proceedings between Tecnifar — Industria Tecnica Farmaceutica, SA and Longevity Health Products, Inc.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Longevity Health Products, Inc. to pay the costs.

(1) OJ C 148, 5.6.2010.

9.7.2011

Official Journal of the European Union

C 204/23

Judgment of the General Court of 24 May 2011 — Euro-Information v OHIM (EURO AUTOMATIC CASH)

(Case T-392/10) (1)

(Community trade mark - Application for Community word mark EURO AUTOMATIC CASH - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)

2011/C 204/41

Language of the case: French

Parties

Applicant: Euro-Information — Européenne de traitement de l'information (Strasbourg, France) (represented by: A. Grolée, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 17 June 2010 (Case R 892/2010-2) concerning an application for registration of the word sign EURO AUTOMATIC CASH as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Euro-Information — Européenne de traitement de l'information to pay the costs.

(1) OJ C 301, 6.11.2010.

9.7.2011

Official Journal of the European Union

C 204/23

Order of the General Court of 19 May 2011 — Formenti Seleco v Commission

(Case T-210/09) (1)

(EEC-Turkey Association Agreement - Importation of colour televisions from Turkey - Application for damages - Statute barred - Inadmissibility)

2011/C 204/42

Language of the case: Italian

Parties

Applicant: Formenti Seleco SpA (Milan, Italy) (represented by: A. Malatesta, G. Terracciano and S. Malatesta, lawyers)

Defendant: European Commission (represented by: T. Scharf and D. Grespan, Agents)

Re:

Application for compensation for the damage allegedly suffered by the applicant as a result of the Commission’s failure to take measures preventing the Turkish authorities from infringing the Agreement establishing an Association between the European Economic Community and Turkey when determining the origin of colour televisions imported into the Community from Turkey.

Operative part of the order

1.	The action is dismissed as inadmissible;

2.	Formenti Seleco SpA is ordered to pay the costs.

(1) OJ C 167, 18.7.2009.

9.7.2011

Official Journal of the European Union

C 204/23

Order of the General Court of 23 May 2011 — Prezes Urzędu Komunikacji Elektronicznej v Commission

(Case T-226/10) (1)

(Action for annulment - Representation by lawyers who are not third parties - Inadmissibility)

2011/C 204/43

Language of the case: Polish

Parties

Applicant: Prezes Urzędu Komunikacji Elektronicznej (Warsaw, Poland) (represented by: H. Gruszecka and D. Pawłowska, lawyers)

Defendant: European Commission (represented by: G. Braun and K. Mojzesowicz, Agents)

Re:

Application for annulment of Commission Decision C(2010) 1234 of 3 March 2010, adopted pursuant to Article 7(4) of Directive 2002/21/EC of the European Parliament and of the Council (OJ 2008 L 108, p. 33), ordering the Polish regulatory authority in the field of electronic communications services and postal services to withdraw two notified draft measures concerning the national wholesale market for IP traffic exchange (IP transit) (Case PL/2009/1019) and the wholesale market for IP peering with the network of Telekomunikacja Polska S.A. (TP) (Case PL/2009/1020).

Operative part of the order

1.	The action is dismissed as inadmissible;

2.	Prezes Urzędu Komunikacji Elektronicznej is ordered to pay the costs.

(1) OJ C 209, 31.7.2010.

9.7.2011

Official Journal of the European Union

C 204/24

Action brought on 18 April 2011 — Staelen v Ombudsman

(Case T-217/11)

2011/C 204/44

Language of the case: French

Parties

Applicant: Claire Staelen (Bridel, Luxembourg) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Ombudsman

Form of order sought

—	The applicant requests the Court to:

—	order the Ombudsman to pay to the applicant the net amount of EUR 559 382,13 as compensation for past material damage, plus default interest calculated at the rate of two points above the European Central Bank rate;

—	order the Ombudsman to pay to the Community pension fund the pension contributions in favour of the applicant corresponding to the basic salaries calculated for the period from June 2005 to April 2011, that is, on the basis of a total amount of EUR 482 225,97;

—

order the Ombudsman to pay to the applicant on a monthly basis from May 2011 to March 2026 the net amounts corresponding to the fixed salaries for AD officials from grade AD 9, step 2, second year, taking account of the normal career path of an official of the same grade, together with corresponding contributions to the pension fund in favour of the applicant as well as sickness fund contributions;

—	order the Ombudsman to pay to the applicant the amount of EUR 50 000 as compensation for non-pecuniary damage;

—	order the Ombudsman to pay all the costs.

Pleas in law and main arguments

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

First plea in law, alleging a failure to carry out all the inquiries warranted to clarify any possible case of improper administration in the management of the applicant’s file by the European Parliament. The applicant alleges that the defendant’s actions were wrongful and, consequently, in breach of Article 3(1) of Decision 94/262/ECSC, EC, Euratom, on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15).

2.	Second plea in law, alleging a manifest error of assessment, insofar as the defendant exceeded the powers of assessment at his disposal to examine the merits of the complaint and erred in the exercise of his tasks so as to cause harm to the applicant.

Third plea in law, alleging a lack of impartiality, objectivity and independence, bad faith and misuse of powers, insofar as the defendant, firstly, entered into a cooperation agreement with the European Parliament and, secondly, evaded, without justification, the central questions concerning the complaint lodged.

Fourth plea in law, alleging a breach of the principles of the duty of care and proper administration. The applicant alleges that the defendant, firstly, did not take into consideration all the elements capable of influencing the decision taken at the time of the examination of the applicant’s situation, secondly, refused to produce the documents upon which the defendant based his decision and, thirdly, breached the principle that the procedure must take place within a reasonable time.

9.7.2011

Official Journal of the European Union

C 204/24

Action brought on 28 April 2011 — Hellenic Republic v Commission

(Case T-233/11)

2011/C 204/45

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Αsimakopoulos, G. Κanellopoulos, Α. Ιosifidou and P. Μilonopoulos)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul the contested decision and

—	order the Commission to pay the costs.

Pleas in law and main arguments

By this action the applicant seeks the annulment of the decision of the European Commission of 23 February 2011, Ε(2011) 1006 final, on the State Aid No C 48/2008 (ex ΝΝ 61/2008) implemented by Greece in favour of Εllinikos Xrysos SA.

The applicant relies on the following grounds for annulment:

The applicant claims, first, that the defendant infringed the provisions of the Treaties (Articles 107(1) and 108(2) TFEU, formerly Articles 87(1) and 88(2) ΕC) by interpreting and applying them erroneously, due to error as to the combination and assessment of the facts of the case in relation to the definition of State Aid.

In support of the first part of that ground, in connection with the first measure of State Aid (sale of the Cassandra mines at a price lower than their market value) the applicant claims that there was: (a) an erroneous assessment in relation to the existence of State aid, caused by the manifest error in relation to the role of the Greek State as a mere intermediary and the absence of involvement of State resources in the transfer at issue, (b) (further) an erroneous assessment in relation to the application of the private investor test, (c) (further) an erroneous assessment in relation to the granting of an advantage, caused by the manifestly erroneous estimate of the value of the mines, the land and the stock of concentrates, as well as of the supposedly real, at the time of the sale, operation of the mines, (d) (further) an erroneous assessment in relation to the distortion of competition and the effect on trade between Member States.

In support of the second part of that ground, in connection with the second measure of State Aid (waiver of taxes on the transfer) the applicant claims that there was an erroneous assessment of the alleged advantage, as well as of the alleged distortion of competition and effect on trade between Member States.

In support of the second ground for annulment, the applicant claims that the defendant infringed the provisions of Article 14(1)(b) of Regulation (EC) No 659/1999 (1) in relation to the demand for recovery of the aid, contrary to the principles of proportionality, sincere cooperation, legal certainty and the protection of legitimate expectations.

In support of that ground the applicant claims that in the light of those principles the defendant erred in the exercise of balancing the threatened distortion of competition and the benefit from the continued activity of the mines at issue.

Lastly, in support of the third ground for annulment, the applicant claims that the defendant infringed the rules relating to stating reasons (Article 296 TFEU, formerly Article 253 ΕC) in connection with the existence of State Aid, and in relation to its compatibility with the internal market.

In support of that ground, the applicant claims that the defendant did not explain why the price for the sale of the Cassandra mines deriving entirely from private resources constitutes the direct or indirect loss of State resources which can be attributed to the Greek State, nor why it regarded as payable in the present case both taxes on the transfer of the mines and on the transfer of land, and not only the tax on the mines. Moreover, in relation to the value of the mines, the land and the stock of minerals, the defendant did not explain the granting of an advantage, relying selectively partly on the Behre Dolbear report and partly on its own arbitrary arguments which it also applied inconsistently in connection with the negative value of the idle mines.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.

9.7.2011

Official Journal of the European Union

C 204/25

Action brought on 4 May 2011 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM)

(Case T-237/11)

2011/C 204/46

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: T. Träger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Lactimilk, SA (Madrid, Spain)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 1154/2009-4; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘BELLRAM’, for goods in class 29 — Community trade mark application No 5074281

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

Mark or sign cited in opposition: Spanish trade mark registration No 2414439 of the figurative mark ‘RAM’, for goods in class 29; Spanish trade mark registration No 98550 of the figurative mark ‘Ram’, for goods in class 29; Spanish trade mark registration No 151890 of the word mark ‘RAM’, for goods in class 29

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant advances five pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 63(2), 75 and 76 of Council Regulation (EC) No 207/2009 (hereinafter ‘CTMR’) and breaches its right to be heard, as the Board of Appeal did not invite the parties to comment on its intent to replace the relevant opposing registration.

By its second plea, the applicant considers that the contested decision infringes Article 41 of CTMR in conjunction with Rule 15(2)(f) of the Implementing Regulation, as the board of Appeal took into account goods that were not properly identified in the notice of opposition and within the deadline for filing the opposition.

By its third plea, the applicant states that the contested decision infringes Articles 42(2), 42(3) and 15 CTMR, as the Board of Appeal did not properly assess the scope of the registered goods against the evidence of use submitted.

By its fourth plea, the applicant claims that the contested decision infringes Articles 76 CTMR in conjunction with Rule 50(1), and Rule 19(1) and (3) of the Implementing Regulation, as the Board of Appeal falsely took into account an enhanced distinctiveness of the earlier mark.

Finally, on the basis of its fifth plea, the applicant considers that the contested decision infringes Article 8(1)(b) of CTMR, as the Board of Appeal falsely assumed a high similarity between the goods. With respect to the similarity between the signs the Board of Appeal failed to assume that the signs are dissimilar or remotely similar owing to the uniform character of ‘BELLRAM’ in the Spanish language. The signs ‘BELLRAM’ and ‘RAM’ are not confusable because the goods are remotely similar and the signs dissimilar or remotely similar.

9.7.2011

Official Journal of the European Union

C 204/26

Action brought on 3 May 2011 — Sigma Alimentos Exterior v Commission

(Case T-239/11)

2011/C 204/47

Language of the case: Spanish

Parties

Applicant: Sigma Alimentos Exterior SL (Madrid, Spain) (represented by: M. Ferre Navarrete, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of the Texto Refundido de la Ley del Impuesto sobre Sociedades (‘TRLIS’) (the consolidated text of the Spanish Company Tax Act) contains elements of State aid;

—	alternatively, annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of TRLIS contains elements of State aid when applied to acquisitions of shareholdings which involve acquisition of control;

—	alternatively, annul Article 4 of the contested decision to the extent that it orders recovery in respect of transactions carried out prior to the publication in Official Journal of the European Union of the final decision under appeal;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings acquired shareholdings in companies established in the United States and in Peru during the tax years 2008 to 2010 and amortized the financial goodwill generated in the acquisition of majority shareholdings in those companies, pursuant to Article 12(5) of TRLIS.

On 12 January 2011 the Commission adopted the contested decision C(2010) 9566 final on the tax amortization of financial goodwill for foreign shareholding acquisitions No C 45/2007 (ex NN 51/2007, ex CP 9/2007). As a consequence of that decision, the Administración Tributaria (Spanish tax authority) commenced verification procedures with the objective of correcting the amortizations applied by the applicant.

In support of its action the applicant relies on two pleas in law:

First plea, based on the failure to satisfy the requirements necessary to consider the measure as State aid.

—

The applicant maintains in this regard that the main reason why the tax system at issue cannot be considered to be State aid is the fact that the measure concerned is not selective. The Commission commits an error when it holds that there is de facto selectivity because the measure favours national acquisitions and because a shareholding of at least 5 % is required. The applicant claims that the Commission arrives at that conclusion by dispensing with any analysis of the types of businesses and business sectors in which the companies which have applied that system intervene.

2.	Second plea, based on the failure to state reasons for the decision.

The applicant considers that the grounds on which the Commission bases its view that there are no explicit legal obstacles in the acquisition of companies in the United States and in Peru are manifestly insufficient.

9.7.2011

Official Journal of the European Union

C 204/27

Action brought on 4 May 2011 — L'Oréal v OHIM — United Global Media Group (MyBeauty)

(Case T-240/11)

2011/C 204/48

Language in which the application was lodged: English

Parties

Applicant: L'Oréal (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

Other party to the proceedings before the Board of Appeal: United Global Media Group, Inc. (El Segundo, U.S.A.)

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 3 February 2011 in case R 898/2010-1;

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

—	Alternatively order the other party to the proceedings before the Board of Appeal should it become an intervener before the General Court, to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘MyBeauty TV’, for goods in classes 3, 35 and 41 — Community trade mark application No 6406755

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

Grounds for the opposition: The other party to the proceedings based its opposition on Article 8(4) CTMR, by claiming to be the proprietor of a number of earlier unregistered marks which were similar to the applicant’s mark.

Decision of the Opposition Division: Rejected the opposition. Regarding the costs, the Opposition Division noted that the opponent, as losing party, would normally have to bear the costs incurred by the applicant’s representation, but as the latter did not appoint a representative within the meaning of Article 93 CTMR, it did not incur such costs.

Decision of the Board of Appeal: Dismissed the appeal and ordered the applicant to bear the costs of the opponent.

Pleas in law: The applicant claims that the contested decision must be annulled because it violates Article 85(1) of Council Regulation No 207/2009. According to that provision, the losing party in an opposition provision must pay the costs incurred by the prevailing party essential to the proceedings. Article 85(1) of CTMR does not limit that obligation to the costs incurred by instructing a professional representative within the meaning of Article 93(1) of CTMR. Rule 94 of CTMIR also does not contain a provision to the effect that only the costs of professional representation may be recovered. Rather, Rule 94 CTMIR merely places a ‘cap’ on the costs recoverable in case a professional representative was acting on behalf of the prevailing party. To the extent that Rule 94 of CTMIR is to be interpreted as precluding any recovery of costs in case like the present one, this rule would be in plain contradiction to Article 85(1) of CTMR and thus void or inapplicable.

9.7.2011

Official Journal of the European Union

C 204/27

Action brought on 10 May 2011 — Sanco v OHIM — Marsalman (Representation of a chicken)

(Case T-249/11)

2011/C 204/49

Language in which the application was lodged: Spanish

Parties

Applicant: Sanco SA (Barcelona, Spain) (represented by: A. Segura Roda, lawyer)

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

Other party to the proceedings before the Board of Appeal: Marsalman SL (Barcelona, Spain)

Form of order sought

The applicant claims that the General Court should:

—

Hold that the action brought against the Decision of the Second Board of Appeal of OHIM dated 17 February 2011 in Case R 1073/2010-2 is brought in time and in the prescribed manner, and in due course annul that decision, refuse registration of the Community mark No 6.675.383 for all its Classes and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Marsalman SL

Community trade mark concerned: Figurative mark without text containing the graphic representation of a chicken framed in a semicircle (application for registration No 6.675.383) for goods in Class 29 and services in Classes 35 and 39.

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

Mark or sign cited in opposition: Spanish mark without text containing the graphic representation of a chicken framed in an oval (No 2.727.182) for goods in Classes 29 and 31.

Decision of the Opposition Division: Partial upholding of the opposition.

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

Pleas in law: Incorrect application and interpretation of Article 8(1)(b) of Regulation No 207/2009.

9.7.2011

Official Journal of the European Union

C 204/28

Action brought on 20 May 2011 — Ezz and Others/Council

(Case T-256/11)

2011/C 204/50

Language of the case: English

Parties

Applicants: Ahmed Abdelaziz Ezz (Giza, Egypt), Abla Mohammed Fawzi Ali Ahmed (London, United Kingdom), Khadiga Ahmed Ahmed Kamel Yassin (London, United Kingdom) and Shahinaz Abdel Azizabdel Wahab Al Naggar (Giza, Egypt) (represented by: M. Lester, Barrister, and J. Binns, Solicitor)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) and Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4), insofar as they apply to the applicants.

—	Order the defendant to pay the costs.

Pleas in law and main arguments

By means of their application the applicants seek, pursuant to Article 263 TFEU, the annulment of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt and Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, insofar as they apply to the applicants.

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

First plea in law, alleging that the criterion for adopting restrictive measures against the applicants, as set out in Article 1 of Council Decision 2011/172/CFSP and in Article 2 of Council Regulation (EU) No 270/2011, is not fulfilled. In addition, it is being alleged that the grounds used by the defendant as justification for the adoption of restrictive measures against the applicants are entirely vague, non-specific, unsubstantiated, unjustified, and insufficient to justify the application of such measures.

Second plea in law, alleging that the defendant has violated the applicants’ rights of defence and the right to effective judicial protection, as:

—	The restrictive measures provide no procedure for communicating to the applicants the evidence on which the decision to freeze their assets was based, or for enabling them to comment meaningfully on that evidence;

—	The reasons given in the contested measures contain a general, unsupported, vague allegation of judicial proceedings; and

—	The defendant has not given sufficient information to enable the applicants effectively to make known their views in response, which does not permit a Court to assess whether the Council’s decision and assessment was well founded and based on compelling evidence.

Third plea in law, alleging that the defendant has failed to give the applicants sufficient reasons for their inclusion in the contested measures, in violation of its obligation to give a clear statement of the actual and specific reasons justifying its decision, including the specific individual reasons that led it to consider that the applicants were responsible for misappropriating Egyptian State funds.

Fourth plea in law, alleging that the defendant has infringed, without justification or proportion, the applicants’ right to property and to reputation, as:

—	The asset freezing measures have a marked and long-lasting impact on their fundamental rights;

—	They are unjustified in their application to the applicants; and

—	The defendant has not demonstrated that a total asset freeze is the least onerous means of ensuring such an objective, nor that the very significant harm to the applicants is justified and proportionate.

5.	Fifth plea in law, alleging that defendant’s inclusion of the applicants in the list of persons against whom restrictive measures will apply is based on a manifest error of assessment.

9.7.2011

Official Journal of the European Union

C 204/30

Action brought on 4 May 2011 — ZZ v European Ombudsman

(Case F-54/11)

2011/C 204/55

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi and A. Blot, lawyers)

Defendant: European Ombudsman

Subject-matter and description of the proceedings

Annulment of the decision to apply to the applicant the disciplinary measure of dismissal without loss of pension rights. Consequently, a claim to restore the applicant to his post and, in the alternative, to grant him a sum corresponding to the remuneration which he would have received between the date of effect of the dismissal and the date at which he will reach retirement age. In any event, the grant of a sum to the applicant in respect of the non-material damage suffered.

Form of order sought

—	Annul the disciplinary decision of the European Ombudsman of 20 July 2010 to apply to the applicant the disciplinary measure of dismissal without loss of pension rights;

—	in so far as is necessary, annul the decision of 18 January 2011 expressly rejecting the complaint;

In so far as is necessary:

—

declare that the annulment of the decision to dismiss carries with it the restoration of the applicant, with retroactive effect from the date of effect of the decision to dismiss, to his position as administrator in Grade A5, step 2, and the payment of those financial entitlements due to him for the whole of that period, together with default interest at 2 points above the interest rate of the European Central Bank;

—	in the alternative, order the defendant to pay a sum corresponding to the remuneration that the applicant would have received from the date of effect of his dismissal in August 2010 until the month in which he will reach retirement age, July 2040, and to the applicant’s adjusted pension rights;

—	in any event, order the defendant to pay the sum of EUR 65 000 in respect of the non-material damage suffered by the applicant;

—	order the Ombudsman to pay the costs.

		ISSN 1725-2423 doi:10.3000/17252423.C_2011.204.eng
Official Journal of the European Union		C 204

English edition	Information and Notices	Volume 54 9 July 2011

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2011/C 204/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 194, 2.7.2011	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2011/C 204/02	Case C-47/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Civil-law notaries — Nationality condition — Article 45 EC — Connection with the exercise of official authority — Directive 89/48/EEC)	2

2011/C 204/03	Case C-50/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v French Republic (Failure by a Member State to fulfil its obligations — Article 43 EC — Freedom of establishment — Notaries — Nationality requirement — Article 45 EC — Connection with the exercise of official authority)	2

2011/C 204/04	Case C-51/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Civil-law notaries — Nationality condition — Article 45 EC — Connection with the exercise of official authority — Directive 89/48/EEC)	3

2011/C 204/05	Case C-52/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Portuguese Republic (Failure by a Member State to fulfil its obligations — Notaries — Directive 2005/36/EC)	3

2011/C 204/06	Case C-53/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Civil-law notaries — Nationality condition — Article 45 EC — Connection with the exercise of official authority — Directives 89/48/EEC and 2005/36/EC)	4

2011/C 204/07	Case C-54/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Civil-law notaries — Nationality condition — Article 45 EC — Connection with the exercise of official authority — Directives 89/48/EEC and 2005/36/EC)	4

2011/C 204/08	Case C-61/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Hellenic Republic (Failure by a Member State to fulfil its obligations — Article 43 EC — Freedom of establishment — Notaries — Nationality requirement — Article 45 EC — Connection with the exercise of official authority — Directive 89/48/EEC)	5

2011/C 204/09	Case C-83/09 P: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG, Zellstoff Stendal GmbH, Federal Republic of Germany, Land Sachsen-Anhalt (Appeal — State aid — Article 88(2) and (3) EC — Regulation (EC) No 659/1999 — Decision not to raise any objections — Action for annulment — Conditions for admissibility — Pleas in law that may be relied upon in an action for annulment — Notion of interested party — Competitive link — Assignment — Market for supply)	5

2011/C 204/10	Case C-115/09: Judgment of the Court (Fourth Chamber) of 12 May 2011 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein Westfalen — Germany) — Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen e.V. v Bezirksregierung Amsberg (Directive 85/337/EEC — Environmental impact assessment — Århus Convention — Directive 2003/35/EC — Access to justice — Non-governmental organisations for the protection of the environment)	6

2011/C 204/11	Case C-176/09: Judgment of the Court (Third Chamber) of 12 May 2011 — Grand Duchy of Luxembourg v European Parliament and Council of the European Union (Action for annulment — Directive 2009/12/EC — Airport charges — Scope — Airports whose annual traffic is over 5 million passenger movements per year and those with the highest passenger movements in each Member State — Validity — Principles of equal treatment, proportionality and subsidiarity)	6

2011/C 204/12	Case C-376/09: Judgment of the Court (Second Chamber) of 19 May 2011 — European Commission v Republic of Malta (Failure of a Member State to fulfil obligations — Regulation (EC) No 2037/2000 — Article 4(4)(v) and Article 16 — Requirement to decommission fire protection systems and fire extinguishers containing halons for non critical uses on board ships — Exceptions — Critical uses of halons 1301 and 2402)	7

2011/C 204/13	Case C-410/09: Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Republic of Poland) — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (Act concerning the conditions of accession to the European Union — Article 58 — Directive 2002/21/EC — Commission guidelines — No publication in the OJ in the language of a Member State — Enforceability)	7

2011/C 204/14	Case C-441/09: Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Application of a reduced rate — Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption — Supply, importation and acquisition of certain live animals, in particular horses)	8

2011/C 204/15	Case C-452/09: Judgment of the Court (First Chamber) of 19 May 2011 (reference for a preliminary ruling from the Corte d’appello di Firenze (Italy)) — Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle v Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa (Directive 82/76/EEC — Freedom of establishment and freedom to provide services — Doctors — Acquisition of the title of medical specialist — Remuneration during the period of training — Five-year limitation period in respect of the right to payment of periodic remuneration)	8

2011/C 204/16	Case C-453/09: Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Application of a reduced rate — Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption — Supply, importation and acquisition of certain live animals, in particular horses)	9

2011/C 204/17	Case C-122/10: Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Marknadsdomstolen (Sweden)) — Konsumentombudsmannen v Ving Sverige AB (Reference for a preliminary ruling — Directive 2005/29/EC — Articles 2(i) and 7(4) — Commercial communication published in a newspaper — Meaning of invitation to purchase — Entry-level price — Information which an invitation to purchase has to contain)	9

2011/C 204/18	Case C-184/10: Judgment of the Court (Second Chamber) of 19 May 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mathilde Grasser v Freistaat Bayern (Directive 91/439/EEC — Mutual recognition of driving licences — Driving licence issued by a Member State in disregard of the residence condition — Refusal of recognition by the host Member State based solely on disregard of the residence condition)	10

2011/C 204/19	Joined Cases C-256/10 and C-261/10: Judgment of the Court (Seventh Chamber) of 19 May 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla León (Spain)) — David Barcenilla Fernández (C-256/10), Pedro Antonio Macedo Lozano (C-261/10) v Gerardo García, S.L. (Directive 2003/10/EC — Exposure values — Noise — Hearing protection — Effectiveness)	11

2011/C 204/20	Case C-308/10 P: Judgment of the Court (Eighth Chamber) of 19 May 2011 — Union Investment Privatfonds GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Unicre-Cartão International De Crédito SA (Appeal — Community trade mark — Opposition proceedings — Regulation (EC) No 40/94 — Article 74(2) — Evidence not submitted in support of the opposition within the period prescribed for that purpose — Failure to take account thereof — Discretion of the Board of Appeal)	11

2011/C 204/21	Case C-423/10: Judgment of the Court (Eighth Chamber) of 18 May 2011 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf (Common Customs Tariff — Combined Nomenclature — Classification for customs purposes — Electrical connectors — Subheading 853669 — Plugs and sockets)	12

2011/C 204/22	Case C-133/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 18 March 2011 — Folien Fischer AG and Fofitec AG v RITRAMA SpA	12

2011/C 204/23	Case C-151/11: Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 28 March 2011 — Condor Flugdienst GmbH v Jürgen Dörschel	12

2011/C 204/24	Case C-152/11: Reference for a preliminary ruling from the Arbeitsgericht Munich (Germany) lodged on 28 March 2011 — Johann Odar v Baxter Deutschland GmbH	13

2011/C 204/25	Case C-160/11: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 1 April 2011 — Bawaria Motors Spółka z o.o. and Minister Finansów	13

2011/C 204/26	Case C-175/11: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 13 April 2011 — HID, BA v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General	14

2011/C 204/27	Case C-190/11: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 22 April 2011 — Daniela Mühlleitner v Ahmad Yusufi and Wadat Yusufi	14

2011/C 204/28	Case C-193/11: Action brought on 20 April 2011 — European Commission v Republic of Poland	15

2011/C 204/29	Case C-200/11 P: Appeal brought on 28 April 2011 by the Italian Republic against the judgment delivered by the General Court (Eighth Chamber) on 3 February 2011 in Case T-3/09 Italian Republic v European Commission	15

2011/C 204/30	Case C-201/11 P: Appeal brought on 27 April 2011 by Union of European Football Associations (UEFA) against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-55/08: Union of European Football Associations (UEFA) v European Commission	16

2011/C 204/31	Case C-231/11 P: Appeal brought on 13 May 2011 by the European Commission against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.	17

2011/C 204/32	Case C-232/11 P: Appeal brought on 16 May 2011 by Siemens Transmission & Distribution Limited against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.	18

2011/C 204/33	Case C-233/11 P: Appeal brought on 16 May 2011 by Siemens Transmission & Distribution SA and Nuova Magrini Galileo SpA against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission	18

	General Court
2011/C 204/34	Joined Cases T-109/05 and T-444/05: Judgment of the General Court of 24 May 2011 — NLG v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents concerning the cost elements arising from public service obligations relating to State aid — Refusal of access — Exception concerning the protection of the commercial interests of a third party — Professional secrecy — Obligation to state reasons — Equal treatment — Documents originating from a Member State)	20

2011/C 204/35	Case T-250/08: Judgment of the General Court of 24 May 2011 –Batchelor v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents exchanged in the course of the assessment of the compatibility with Community law of measures taken with respect to television broadcasting activities — Refusal to grant access — Exception relating to the protection of the decision-making process — Exception relating to the protection of the purpose of inspections, investigations and audits)	20

2011/C 204/36	Case T-397/09: Judgment of the General Court of 25 May 2011 — Prinz von Hannover v OHIM (Representation of a coat of arms) (Community trade mark — Application for Community figurative mark representing a coat of arms — Absolute ground for refusal — Imitation from a heraldic point of view of the symbol of a State — Article 7(1)(h) of Regulation (EC) No 207/2009 — Article 6 ter of the Paris Convention)	21

2011/C 204/37	Case T-408/09: Judgment of the General Court of 24 May 2011 — ancotel v OHIM — Acotel (ancotel.) (Community trade mark — Opposition proceedings — Application for Community figurative mark ancotel — Earlier Community figurative mark ACOTEL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Relevant public)	21

2011/C 204/38	Case T-422/09: Judgment of the General Court of 25 May 2011 — São Paulo Alpargatas v OHIM — Fischer (BAHIANAS LAS ORIGINALES) (Community trade mark — Opposition proceedings — Application for Community figurative mark BAHIANAS LAS ORIGINALES — Earlier Community and national figurative trade marks havaianas and earlier national word mark HAVAIANAS — Relative ground for refusal — Likelihood of confusion — Similarity of signs — Article 8(1)(b) of Regulation (EC) No 207/2009)	22

2011/C 204/39	Case T-144/10: Judgment of the General Court of 24 May 2011 — Space Beach Club v OHIM — Flores Gómez (SpS space of sound) (Community trade mark — Opposition proceedings — Application for Community figurative mark SpS space of sound — Earlier national and Community figurative marks space ibiza, space DANCE BARCELONA, space DANCE MADRID, space DANCE VALENCIA, space DANCE MALLORCA, space DANCE EIVISSA, space SPACE IBIZA WORLD, space DANCE and earlier national word mark SPACE VIVA — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)	22

2011/C 204/40	Case T-161/10: Judgment of the General Court of 24 May 2011 — Longevity Health Products v OHIM — Tecnifar (E-PLEX) (Community trade mark — Opposition proceedings — Application for Community word mark E-PLEX — Earlier national word mark EPILEX — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)	22

2011/C 204/41	Case T-392/10: Judgment of the General Court of 24 May 2011 — Euro-Information v OHIM (EURO AUTOMATIC CASH) (Community trade mark — Application for Community word mark EURO AUTOMATIC CASH — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)	23

2011/C 204/42	Case T-210/09: Order of the General Court of 19 May 2011 — Formenti Seleco v Commission (EEC-Turkey Association Agreement — Importation of colour televisions from Turkey — Application for damages — Statute barred — Inadmissibility)	23

2011/C 204/43	Case T-226/10: Order of the General Court of 23 May 2011 — Prezes Urzędu Komunikacji Elektronicznej v Commission (Action for annulment — Representation by lawyers who are not third parties — Inadmissibility)	23

2011/C 204/44	Case T-217/11: Action brought on 18 April 2011 — Staelen v Ombudsman	24

2011/C 204/45	Case T-233/11: Action brought on 28 April 2011 — Hellenic Republic v Commission	24

2011/C 204/46	Case T-237/11: Action brought on 4 May 2011 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM)	25

2011/C 204/47	Case T-239/11: Action brought on 3 May 2011 — Sigma Alimentos Exterior v Commission	26

2011/C 204/48	Case T-240/11: Action brought on 4 May 2011 — L'Oréal v OHIM — United Global Media Group (MyBeauty)	27

2011/C 204/49	Case T-249/11: Action brought on 10 May 2011 — Sanco v OHIM — Marsalman (Representation of a chicken)	27

2011/C 204/50	Case T-256/11: Action brought on 20 May 2011 — Ezz and Others/Council	28

2011/C 204/51	Case T-206/96: Order of the General Court of 17 May 2011 — Van Bennekom v Council and Commission	28

2011/C 204/52	Case T-207/96: Order of the General Court of 17 May 2011 — Van Rossum v Council and Commission	29

2011/C 204/53	Case T-385/10: Order of the General Court of 19 May 2011 — ArcelorMittal Wire France and Others v Commission	29

	European Union Civil Service Tribunal
2011/C 204/54	Case F-34/11: Action brought on 4 April 2011 — ZZ v Europol	30

2011/C 204/55	Case F-54/11: Action brought on 4 May 2011 — ZZ v European Ombudsman	30