13.8.2011

Official Journal of the European Union

C 238/2

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Palermo (Italy) lodged on 28 February 2011 — Amia SpA, in liquidation v Provincia Regionale di Palermo

(Case C-97/11)

2011/C 238/02

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Palermo

Parties to the main proceedings

Applicant: Amia SpA, in liquidation

Defendant: Provincia Regionale di Palermo

Question referred

In the light of the judgment in Case C-172/08 (1), may paragraphs 26 and 31 of Article 3 of Law No 549 of 28 December 1995 be treated as not to be applied because they are contrary to Article 10 of Directive 1999/31/EC (2) and similarly because they are contrary to Articles 1, 2 and 3 of Directive 2000/35/EC (3)?

(1) Judgment of the Court of 25 February 2010 (Case C-172/08 Pontina Ambiente v Regione Lazio [2010] ECR I-0000).

(2) OJ 1999 L 182, p. 1.

(3) OJ 2000 L 200, p. 35.

13.8.2011

Official Journal of the European Union

C 238/2

Appeal brought on 1 March 2011 by Stichting Nederlandse Publieke Omroep, formerly Nederlandse Omroep Stichting (NOS), against the judgment of the General Court (First Chamber, extended composition) delivered on 16 December 2010 in Joined Cases T-231/06 and T-237/06 Kingdom of the Netherlands (T-231/06) and Nederlandse Omroep Stichting (NOS) (T-237/06) v European Commission

(Case C-104/11 P)

2011/C 238/03

Language of the case: Dutch

Parties

Appellant: Stichting Nederlandse Publieke Omroep, formerly Nederlandse Omroep Stichting (NOS) (represented by: J.J. Feenstra, advocaat)

Other parties to the proceedings: Kingdom of the Netherlands, European Commission

Form of order sought

—	Set aside the judgment of the General Court of 16 December 2010 in Joined Cases T-231/06 and T-237/06;

—	since the state of the proceedings so permits, annul Commission Decision 2008/136/EC (1) of 22 June 2006 on the ad hoc financing of Dutch public service broadcasters (NPO);

—	order the Commission to pay the costs of the proceedings at first instance and of the appeal before the Court of Justice.

Pleas in law and main arguments

First plea in law: infringement of Articles 107 TFEU, 108 TFEU and 296 TFEU in so far as the General Court erroneously and on the basis of insufficient reasoning considered the Broadcasting Reserve Fund (FOR) monies and transfer back to the NPO of certain built-up reserves by individual broadcasting entities to be a form of grant of new aid

The General Court erred in interpreting and applying the concepts of aid, existing aid and new aid within the meaning of Article 107 TFEU et seq. by finding that the availability of FOR funds and the transfer back to the NPO by individual Dutch broadcasting entities of certain built-up reserves must be deemed to be a grant of new aid, without providing sufficient reasoning in that regard.

Second plea in law: infringement of the rights of the defence.

The General Court infringed the requirement to observe the rights of the defence enshrined in European Union law and the procedure laid down in Article 108(2) TFEU and Regulation (EC) No 659/1999 (2) by wrongly and on the basis of erroneous and insufficient reasoning rejecting the appellant’s plea for observance of the rights of the defence and by ruling that the NPO’s rights of defence had not been infringed.

(1) OJ 2008 L 49, p. 1.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

13.8.2011

Official Journal of the European Union

C 238/3

Appeal brought on 2 March 2011 by Kingdom of the Netherlands against the judgment of the General Court (First Chamber, extended composition) delivered on 16 December 2010 in Joined Cases T-231/06 and T-237/06 Kingdom of the Netherlands (T-231/06) and Nederlandse Omroep Stichting (NOS) (T-237/06) v European Commission

(Case C-105/11 P)

2011/C 238/04

Language of the case: Dutch

Parties

Appellant: Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, acting as Agents)

Other parties to the proceedings: European Commission, Stichting Nederlandse Publieke Omroep, formerly Nederlandse Omroep Stichting (NOS)

Form of order sought

—	Set aside the judgment of the General Court of 16 December 2010 in Joined Cases T-231/06 and T-237/06;

—	give judgment itself in this case by annulling Commission Decision 2008/136/EC (1) of 22 June 2006 in so far as the Commission found that an amount of EUR 42 457 million must be deemed to be new State aid and must be recovered as part of a total sum of EUR 76 327 million (plus interest);

—	order the Commission to pay the costs, including the costs of the proceedings in the General Court.

Pleas in law and main arguments

By its plea, the appellant submits that the General Court infringed European Union law by proceeding on the basis of an erroneous interpretation of Article 107(1) TFEU and Article 108(1) and (3) TFEU, in conjunction with Article 1(b) of Regulation (EC) No 659/1999, (2) and by failing to give reasons or by giving insufficient reasons for its findings.

The plea is in the following parts:

1.	the General Court erred in basing its finding that the transfer constitutes new aid on the fact that Article 109a of the Law on media (Mediawet) was introduced after the entry into force of the Treaty;

2.	the General Court erred in basing its finding that the transfer constitutes new aid on the criterion that the aid meets the ‘specific needs’ (of the public broadcaster);

the General Court erred in basing its finding that the transfer constitutes new aid on the consideration that the public broadcaster was thereby (particularly) overcompensated. The amount of any overcompensation does not determine whether the transfer constitutes new aid. In any event, the General Court gave insufficient reasons for its finding;

4.	the General Court erred in deciding that the source of the transfer is not relevant to the issue whether the transfer constitutes new aid. The General Court thus disregards the distinction between new and existing aid. In any event, the General Court gave insufficient reasons for its finding;

5.	the General Court gave insufficient reasons for its finding that the reserves transferred cannot be assumed to come from the annual financing of the public broadcasters and thus from existing aid;

6.	the General Court gave insufficient reasons for its finding that the funds transferred come from ad hoc payments and therefore constitute new aid;

7.	even if the General Court’s grounds as contested above have to be read in conjunction with each other, they cannot lead to the conclusion that the transfer constitutes new aid.

(1) Commission Decision 2008/136/EC of 22 June 2006 on the ad hoc financing of Dutch public service broadcasters C 2/2004 (ex NN 170/2003) (OJ 2008 L 49, p. 1).

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

13.8.2011

Official Journal of the European Union

C 238/4

Action brought on 17 May 2011 — European Commission v Italian Republic

(Case C-236/11)

2011/C 238/06

Language of the case: Italian

Parties

Applicant: European Commission (represented by C. Soulay and D. Recchia, Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

—

declare that, by applying the special scheme for travel agents even when the travel service is sold to someone other than the traveller, the Italian Republic has failed to fulfil its obligations under Articles 306-310 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission is of the view that the Italian Republic’s application of the special scheme for travel agents, inasmuch as it is not limited to services to travellers, as provided by the directive, but is extended to cover transactions between travel agencies too, is contrary to the provisions of the VAT legislation.

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

13.8.2011

Official Journal of the European Union

C 238/4

Reference for a preliminary ruling from the Tribunal administratif de Rennes (France) lodged on 23 May 2011 — Martial Huet v Université de Bretagne occidentale

(Case C-251/11)

2011/C 238/07

Language of the case: French

Referring court

Tribunal administratif de Rennes

Parties to the main proceedings

Applicant: Martial Huet

Defendant: Université de Bretagne occidentale

Question referred

In circumstances where the State decides to renew the appointment of a staff member previously appointed for a period of six years under a fixed-term contract, does the obligation to use a contract of indefinite duration pursuant to Article 13 of the Law of 26 July 2005 necessarily mean, in light of the objectives of Directive 1999/70 of 28 June 1999, (1) that the new contract must reproduce in identical terms the principal clauses of the previous contract, in particular, those clauses concerning the job title and remuneration?

(1) Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

13.8.2011

Official Journal of the European Union

C 238/4

Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 26 May 2011 — SC Gran Via Moinești srl v Agenția Naționala de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București

(Case C-257/11)

2011/C 238/08

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: SC Gran Via Moinești Srl

Defendants: Agenția Naționala de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București

Questions referred

In the light of Articles 167 and 168 of Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, can the purchase, by a commercial company liable for VAT, of a number of buildings scheduled for demolition, together with a plot of land, with a view to developing a residential complex on that land constitute a preparatory activity, that is to say, investment expenditure for the purposes of developing a residential complex, entitling that company to deduct the VAT on the purchase of the buildings?

In the light of Article 185(2) of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, is the demolition of the buildings scheduled for demolition, which were purchased together with the plot of land, with a view to developing a residential complex on the land, subject to adjustment of the VAT on the purchase of the buildings?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

13.8.2011

Official Journal of the European Union

C 238/5

Action brought on 26 May 2011 — European Commission v Kingdom of Denmark

(Case C-261/11)

2011/C 238/09

Language of the case: Danish

Parties

Applicant: European Commission (represented by: R. Lyal and N. Fenger, acting as Agents)

Defendant: Kingdom of Denmark

Form of order sought

—

declare that, by introducing and maintaining legislation on immediate taxation on exit of companies’ transfers of assets to another Member State without taxing corresponding transfers of assets within Denmark, the Kingdom of Denmark has failed to fulfil its obligations under Article 49 TFEU and Article 31 of the EEA Agreement;

—	order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Under Danish tax legislation, the transfer of an undertaking’s assets for use outside Denmark is regarded as a sale and is taxed accordingly, whereas an undertaking within the country is regarded as having ceased only when the assets in question are in actual fact sold. An undertaking which transfers assets between different establishments within Denmark is thus not taxed on the value of those assets in connection with such a transfer. If, however, the same undertaking transfers assets to a fixed establishment outside Denmark, it will immediately pay tax on the value of the assets in the same way as if the assets had been sold.

In the Commission’s view, that difference in treatment constitutes an obstacle to the freedom of establishment, contrary to Article 49 TFEU. The Commission does not call into question Denmark’s ability to impose tax on increases in value received by an undertaking while it is established in Denmark. However, the Commission finds that the circumstances on the basis of which the tax liability arises should be the same, that is, the realisation of an asset or a factor as a result of which depreciation can be adjusted, regardless of whether the capital values concerned are transferred abroad or remain in Denmark.

In the Commission’s view, there is no reason for tax to be collected immediately with respect to unrealised increases in value in connection with the transfer of assets in Denmark to another Member State if such a tax is not imposed in equivalent national situations. The Kingdom of Denmark could thus, for example, determine the value of the unrealised increases in value which it considers it has the right to tax, without that implying the immediate collection of tax or compliance with further conditions for deferring payment of tax.

13.8.2011

Official Journal of the European Union

C 238/5

Appeal lodged on 3 June 2011 by Viega GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-375/06, Viega GmbH & Co. KG v European Commission

(Case C-276/11 P)

2011/C 238/10

Language of the case: German

Parties

Applicant: Viega GmbH & Co. KG (represented by: J. Burrichter, T. Mäger and M. Röhrig, lawyers)

Other party to the proceedings: European Commission

Forms of order sought

—	annul the judgment under appeal in so far as it adversely affects the appellant;

—	annul, in so far as it concerns the appellant, Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Joints);

—	in the alternative to the heads of claim appearing in points 1 and 2, refer the case back to the General Court for a ruling;

—	order the defendant at first instance to pay the costs in relation to the whole dispute.

Pleas in law and main arguments

This appeal is directed against the judgment of the General Court whereby the latter dismissed the action by the appellant against Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Joints).

The appellant bases its appeal on the following grounds.

The General Court infringed the appellant’s right to be heard, the principles governing the taking of evidence and the duty to state reasons for the decision given. In order to demonstrate the appellant’s participation in the cartel, the judgment under appeal relied mainly on handwritten notes of a single witness and a plea for leniency without making any mention of the appellant’s arguments on the subject of those documents. The appellant expressly cast doubt on the accuracy of those documents (the witness did not take part in the German meetings and did not speak German).

The appellant considers that the General Court should have ordered measures of inquiry in relation to the accuracy of the witness notes and the plea for leniency. By using those notes and the plea for leniency as evidence without verifying their accuracy, the General Court infringed the principles governing the taking of evidence.

The judgment under appeal infringed Article 81(1) EC inasmuch as the General Court held that the appellant had participated, on 30 April 1999, in a meeting ‘of an anti-competitive nature’. Moreover, the judgment under appeal also infringed Article 23(1) of Regulation No 1/2003 insamuch as participation at that meeting was taken into account when determining the amount of the fine. As regards that meeting, the General Court merely held that the evidence pointed ‘rather’ to an anti-competitive purpose than to a purpose in accordance with the competition rules. The General Court thus infringed the criterion for assessing evidence that it itself had fixed, which requires that the infringement be proved certainly and beyond dispute.

The appellant argues that the finding that the meeting of 30 April 1999 was of an anti-competitive nature has an effect on the amount of the fine imposed. The taking into account of that meeting served as evidence of the appellant’s participation in a pressfittings cartel. The appellant’s turnover in the pressfittings sector was thus fixed, in the context of fixing the starting amount for the calculation of the fine, at an amount 11 times higher.

As regards the taking into account of turnover in pressfittings, the judgment further showed a defect in reasoning and offended the laws of logic. The imposition of a fine of more than EUR 50 million was, in the final analysis, based solely, in paragraph 85 of the judgment under appeal, on two meetings the relation of which to pressfittings is dealt with in two half-sentences and established without any assessment of the evidence. Moreover, the General Court assumed that the appellant had participated in anti-competitive agreements concerning pressfittings at the meeting of 30 April 1999, whereas it also held that the latter’s competitors debated until June 2000 whether pressfittings (in which the appellant had a monopoly) should be the subject-matter of a cartel at all.

Finally, the judgment under appeal infringed the principle of proportionality. The Commission — with the approval of the General Court — applied the guidelines for the calculation of fines as follows: it first fixed a starting amount by taking account of the turnover for pressfittings, even though, according to the findings of the General Court itself, pressfittings could have been the subject-matter of an anti-competitive agreement only in 2000 and 2001. It then increased the starting amount by 90 % in order to reflect the alleged overall duration of the appellant’s participation in the cartel (nine years and three months). The turnover figure for pressfittings having thus been taken into account for the whole of the period and not for the last part, of one year and three months, which was the most that could be relevant, the fixing of the amount of the fine infringed the principle of proportionality.

13.8.2011

Official Journal of the European Union

C 238/6

Appeal brought on 6 June 2011 by Council of the European Union against the judgment of the General Court (Third Chamber) delivered on 22 March 2011 in Case T-233/09: Access Info Europe v Council of the European Union

(Case C-280/11 P)

2011/C 238/11

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: G. Maganza, B. Driessen, Cs. Fekete, Agents)

Other parties to the proceedings: Access Info Europe, Hellenic Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

—	set aside the contested judgement by which the General Court annulled the Council's decision of refusing public access to the requested document;

—	give a final judgment in the matters that are the subject of this appeal; and

—	order the Applicant in Case T-233/09 to pay the costs of the Council arising from that case and from the present appeal.

Pleas in law and main arguments

At the outset, the Council would like to recall that the adoption of the contested decision, on 26 February 2009, pre-dates the entry into force of the Lisbon Treaty on 1 December 2009. Accordingly, the applicable Treaty framework for the purposes of the present action is the one established by the Treaty on European Union and Treaty establishing the European Community, prior to the entry into force of the Lisbon Treaty.

The Council respectfully submits that first, the General Court has erred in law in its interpretation and application of the exception laid down in Article 4(3) first subparagraph of Regulation 1049/2001 (1), since its findings are inconsistent with the applicable Treaty provisions, and in particular, disregard the limits of the principle of wider access of the institutions' legislative activities set by the Treaty and reflected by secondary law, on account of the preservation of the effectiveness of the institution's decision-making.

Second, the Council argues that the General Court's reasoning is inconsistent with the case-law of the Court which allows the institution to rely upon general considerations.

Third, the Council submits that the General Court has erred in law in applying the ‘requisite legal and factual standard’ to the present case in order to review the reasons the Council brought to justify invocation of the exception laid down in Article 4(3) first sub-paragraph of the Regulation. In its assessment, the General Court committed legal errors in so far as it required evidence of an adverse effect on the decision-making process, disregarded the importance of the early stage of the decision-making for appreciating the impact of full disclosure, and failed to take account of the sensitivity of the requested document.

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

OJ L 145, p. 43

13.8.2011

Official Journal of the European Union

C 238/7

Reference for a preliminary ruling from the Varhoven Administrativen Sad na Republika Balgaria lodged on 8 June 2011 — EMS Bulgaria TRANSPORT OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite gr. Plovdiv

(Case C-284/11)

2011/C 238/12

Language of the case: Bulgarian

Referring court

Varhoven Administrativen Sad na Republika Balgaria

Parties to the main proceedings

Applicant: EMS Bulgaria TRANSPORT OOD

Defendant: Direktor na Direktsia‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite gr. Plovdiv

Questions referred

Are Articles 179(1), 180 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of effectiveness in the field of indirect taxation, which is discussed in the judgment of the Court of Justice in Joined Cases C-95/07 and C-96/07 Ecotrade, to be interpreted as permitting an exclusion period such as that in the present case under Article 72(1) of the Law on value added tax (2008 version), which period was extended — under Section 18 of the transitional and concluding provisions of the Law amending and complementing the Law on value added tax — until the end of April 2009 only for recipients of supplies who became taxable before 1 January 2009, taking into account the circumstances of the dispute in the main proceedings, that is to say:

—

the requirement under national law that a person who has made an intra-Community acquisition and who is not registered under the Law on value added tax register voluntarily as a precondition for exercising the right to deduct input VAT, even though that person does not meet the conditions for compulsory registration;

—

the new rule under Article 73a of the Law on value added tax (in force since 1 January 2009) whereby the right to deduct input value added tax is to be granted irrespective of whether the time-limit under Article 72(1) of the Law on value added tax was complied with, if the tax is chargeable to the recipient of the supply, provided the supply was not concealed and is documented in the accounts;

—	the subsequent amendment of Article 72(1) of the Law on value added tax (in force since 1 January 2010), whereby the right to deduct input value added tax may be exercised during the tax period in which that right arose or in one of the subsequent twelve tax periods?

Is the principle of tax neutrality as a fundamental principle, which is of importance for the establishment and functioning of the common system of value added tax, to be interpreted as meaning that a tax assessment practice such as that at issue in the main proceedings — which acknowledges the late charging of value added tax, levies interest as a penalty and imposes an additional penalty of denial of the right to deduct input value added tax — is permissible in the actual circumstances of the appellant’s case, taking into account the fact that the transaction was not concealed, it was documented in the accounts, the tax authorities had the necessary information, no abuse occurred and the budget was not adversely affected?

13.8.2011

Official Journal of the European Union

C 238/8

Reference for a preliminary ruling from the Varnenski administrativen sad (Bulgaria) lodged on 8 June 2011 — Bonik EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Varna

(Case C-285/11)

2011/C 238/13

Language of the case: Bulgarian

Referring court

Varnenski administrativen sad

Parties to the main proceedings

Applicant: Bonik EOOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Varna

Questions referred

Can the concept ‘absence of actual supply’ be inferred by interpretation from the provisions of Articles 178(a) and (b), 14, 62, 63, 167 and 168 of Directive 2006/112 (1) and, if so, is ‘absence of actual supply’ coextensive, as regards its definition, with the concept ‘tax evasion’ or is it included in that concept? What does the concept ‘tax evasion’ cover within the meaning of the Directive?

In the light of the definition of ‘tax evasion’ and of recitals 26 and 59 in the preamble in conjunction with Article 178(b) of the Directive, does the Directive require that the formalities be expressly laid down by means of legislation in the form of an act of the Member State’s highest legislative body or does it allow those formalities not to be laid down by means of legislation, but to constitute an administrative (and tax investigation) practice and case-law? May formalities be introduced by legislative acts of the administrative authorities and/or by instructions of the administration?

If it is a concept which differs from ‘tax evasion’ and is not covered by the definition of the latter, does ‘absence of actual supply’ constitute a formality as referred to in Article 178(b) or a measure as referred to in recital 59 in the preamble to the Directive, the introduction of which results in refusal of the right of deduction and jeopardises the neutrality of VAT, a fundamental principle of the common system of value added tax which was introduced by the relevant Community legislation?

Is it permissible to lay down formalities for taxable persons according to which they must provide evidence of supplies which preceded the supply between them (that is, the final customer and his supplier) in order for the supply to be deemed to have been actually carried out, if the authority does not dispute that the persons concerned (the final suppliers) have carried out downstream supplies of the same goods in the same quantities to downstream customers?

Under the common system of value added tax and the provisions of Articles 168 and 178 of Directive 2006/112, is the right of the trader to recognition of VAT payments in respect of a given transaction

(a)	to be assessed solely in relation to the specific transaction to which the trader is party, having regard to the trader’s intention to be a party to the transaction, and/or

(b)

to be assessed taking account of all transactions, including upstream and downstream transactions, which form a supply chain of which the transaction in question is part, having regard to the intentions of the other parties in the chain, which the trader does not know and/or about which he cannot find out, or to the acts and/or omissions of the issuer of the invoice and of the other parties in the chain, namely his upstream suppliers, whom the person to whom the supply is made cannot control and of whom he cannot demand particular conduct, and/or

(c)

to be assessed taking account of fraudulent acts and intentions of other parties in the chain, of whose participation the trader did not know and about whose acts or intentions it cannot be established whether he was able to find out, regardless of whether those acts or intentions date from before or after a given transaction?

Depending on the answer to question 5: Are transactions such as those at issue in the main proceedings to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 or as part of the taxable person’s economic activity within the meaning of Article 9(1) of the Directive?

Is it permissible for transactions such as those at issue in the main proceedings, which were properly documented and declared for VAT purposes by the supplier, in respect of which the customer has in fact acquired the right of ownership of the goods invoiced and there are no indications as to whether he actually received the goods from a person who was not the issuer of the invoice, not to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 merely because the supplier was not found at the address indicated and did not produce the documents requested during the tax investigation or did not provide evidence to the tax authorities for all the circumstances under which the supplies were carried out, including the origin of the goods sold?

8.	Does it constitute a permissible measure for the purpose of ensuring the collection of tax and preventing tax evasion that the right of deduction is made dependent on the conduct of the supplier and/or his upstream suppliers?

Depending on the answers to questions 2, 3 and [4]: Do measures of the tax authorities such as those at issue in the main proceedings, which lead to exclusion of the VAT arrangements in relation to the transactions concluded by a bona fide trader, infringe the principles of Community law of proportionality, equal treatment and legal certainty?

10.	Depending on the answers to the above questions: In circumstances such as those of the main proceedings, does the person to whom the supplies are made have a right to deduct the tax invoiced to him by the suppliers?

(1) OJ L 347, p. 1;

13.8.2011

Official Journal of the European Union

C 238/9

Appeal brought on 7 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-382/06: Tomkins plc v European Commission

(Case C-286/11 P)

2011/C 238/14

Language of the case: English

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka, R. Sauer, Agents)

Other party to the proceedings: Tomkins plc

Form of order sought

The appellant claims that the Court should:

—	set aside the Judgment under Appeal;

—	dismiss the action before the General court in its entirety;

—	require the applicant to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

Pleas in law and main arguments

The Commission raises the following five grounds of appeal:

In the first ground of appeal it is submitted that by annulling part of the duration established in the Decision on the basis of elements never raised by Tomkins, the General Court clearly ruled ultra petita. The case law of the Union Courts does not recognise exceptions to the rule defined in the C-310/97 P AssiDomän case law on the basis that two applicants belonged to the same undertaking. Recently, the Court of Justice has made it clear in ArcelorMittal Luxembourg (Joined Cases C-201/09 P and C-216/09 P) that a case lodged by one entity within a group does not affect the legal position of other entities within the same undertaking.

In its second ground of appeal the Commission contends that the General Court equally erred in law in finding that the forms of order of Pegler (the subsidiary, in Case T-386/06) and Tomkins (the parent company, in Case T-382/06) had the ‘same object’. Although, the period contested by Tomkins was much shorter than that contested in the separate case by Pegler, the same reduction in terms of duration was granted to both companies. However, Pegler not only challenged a much longer period, but it also based its Application on different and even opposing pleas to those of Tomkins. In contesting the initial period of the duration, Pegler's object was to exculpate itself and inculpate Tomkins, whereas Tomkins' aim was a rather limited one, i.e. to contest the evidence related to the first 38 days (which would not even have affected the duration taken into account for the fine).

Moreover the assessment of the General Court is based on the factually incorrect premiss that Tomkins would have claimed that ‘if that decision were to be annulled with respect to Pegler, it should also be annulled in so far as it relates to the applicant’ (paragraph 42 of the Judgment under Appeal). Tomkins made no such plea either in the Application or in its Reply (which in any event would have been too late). This constitutes a distortion of the applicant's plea which is in itself sufficient to set aside the Judgment under Appeal

The third ground of appeal relates to disregarding that Tomkins was part of an undertaking which admittedly committed an infringement. The General Court committed an error of law because it reduced the liability of an entity (the parent company Tomkins) within the ‘Tomkins undertaking’ for the reason that for another part of that undertaking, the subsidiary Pegler, the duration was reduced. However, the reduction of Pegler's liability for the infringement was based on Pegler's status as a ‘dormant company’ and was not based on the fact that the group in question did not participate in the infringement. In the Commission's view the fact that this particular subsidiary (Pegler) of the group may not have been the right addressee within the group for a certain period concerns only that subsidiary and does not exonerate the entire ‘undertaking’. This holds especially true in a situation where it was not contested by the General Court (nor by Tomkins itself) that the undertaking headed by Tomkins participated in the infringement during much of the relevant period.

The Commission bases its fourth ground of appeal on lack of motivation and contradictions in the judgment under appeal. The fourth ground of appeal is subsidiary to the first, that is even if the General Court did not act ultra petita, the judgment should still be annulled because it fails to provide sufficient and clear reasoning for the partial annulment (lack of motivation). There are at least two important instances on which the Judgment under Appeal lacks clarity.

—	o First, when describing the exception that the General Court considers should be made from the AssiDomän case law the conditions of such departure are unclear and contradictory.

—

o The second incoherence or unclear aspect in the reasoning of the General Court is the fact that at paragraph 57 of the Judgment under Appeal on the multiplier for deterrence the Commission is asked ‘in accordance with Article 266 TFEU, to draw the appropriate conclusions from that mistake and from the joint and several liability for the fine so far as concerns the applicant.’ However, at paragraph 59 the General Court exercises its unlimited jurisdiction on the fine and determines the fine amount applicable to Tomkins. The operative part of the Judgment under Appeal repeats the final amount of the fine without any mentioning of the need to modify that amount further. Regardless of the exact meaning of paragraph 57, the Commission notes that the annulment of the multiplier for deterrence in Case T-386/06 Pegler v Commission should be of no consequence for the multiplier of Tomkins.

Finally, in the fifth ground of appeal it is submitted that the General Court breached the ‘principe du contradictoire’ and the right to a fair hearing because it failed to give an opportunity to the Commission to comment on its intention to reduce Tomkins' fine on the basis of pleas raised in a separate case by Pegler.

13.8.2011

Official Journal of the European Union

C 238/10

Appeal brought on 6 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-385/06: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG v European Commission

(Case C-287/11 P)

2011/C 238/15

Language of the case: English

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka, R. Sauer, Agents)

Other parties to the proceedings: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

—	set aside the Judgment under Appeal;

—	dismiss the action before the General Court in its entirety;

—	require the tree applicants to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

Pleas in law and main arguments

The Commission bases its Appeal on the following three grounds of appeal:

In the first ground of appeal it is submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. Although the General Court recalls the case law on the need to consider the overall body of evidence, the subsequent assessment reveals a very fragmentary approach by which evidence is viewed in isolation and dismissed on a piece-by-piece basis. This affects the analysis of individual contacts, which the Decision considers as manifestations of the Aalberts undertakings' participation in the on-going infringement. Evidence on the participation of the subsidiary companies Simplex and Aquatis in the continuous infringement are assessed by the General Court in isolation, although they belonged to one and the same undertaking (Aalberts). In addition, and with regard to these contacts, the General Court distorts certain key pieces of evidence or at least does not provide sufficient reasons for its conclusions as regards the probative value of certain pieces of evidence. The second ground of appeal is an alternative plea, in that even if its factual findings were to be upheld, the General Court was wrong to annul the decision in full, insofar as it only found a partial mistake in the Decision. The Judgment under Appeal is affected by at least two errors of law:

—

First , the General Court annulled the Commission's Decision on the ground that Aquatis

had a different degree of awareness of the cartel, compared to the other participants of the FNAS meetings in France. However, in line with established case law, the differing degree of awareness by a cartel participant should not lead to the total annulment of the single and continuous infringement but it could, at most, lead to a partial annulment of the finding of an infringement, and probably a reduction of the fine.

—	Second , by completely annulling the Decision for Aalberts and its two subsidiaries in a case where a partial annulment would have been the most appropriate solution in line with the case law, the General Court exceeded its powers

Finally, the third ground of appeal is also in the alternative, should the Court of Justice dismiss the first and second ground of appeal, as it concerns the calculation of the fine for Simplex and Aquatis in the first period in the event the finding of an infringement in the second period would be annulled in full. The Commission submits that the annulment of Article 2(b)(2) of the Decision lacks motivation and that, if the General Court relied on the so-called 10 % cap under Article 23(2) of Regulation No 1/2003 (1), it ruled ultra petita and violated the principle of the contradictory procedure and thus the right to a fair hearing as this was not discussed during the proceedings at first instance.

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

OJ L 1, p. 1

13.8.2011

Official Journal of the European Union

C 238/11

Action brought on 14 June 2011 — European Commission v Hellenic Republic

(Case C-297/11)

2011/C 238/16

Language of the case: Greek

Parties

Applicant: European Commission (represented by: I. Chatzigiannis and A. Margelis, Agents)

Defendant: Hellenic Republic

Form of order sought

The Commission requests that the Court:

—

declare that the Hellenic Republic, by not having produced river basin management plans (either for those river basin districts falling wholly within its territory or for international river basin districts) by 22 December 2009, and by not having sent copies of the river basin management plans to the Commission by 22 March 2010, failed to fulfil its obligations under Articles 13(1), (2), (3) and (6) and 15(1) of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. Further, by not having commenced a procedure for public information and the related consultations in connection with the draft river basin management plans by 22 December 2008, the Hellenic Republic failed to fulfil its obligations under Article 14(1)(c) of that directive;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

First, under Articles 13(1), (2), (3) and (6) and 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, Member States were obliged to produce, by 22 December 2009, river basin management plans (either for those river basin districts falling wholly within their territory or for international river basin districts) and to send copies of those plans to the Commission by 22 March 2010.

On the information currently provided by the Hellenic Republic to the Commission it appears that the Hellenic Republic has not yet produced any river basin management plan (either for those river basin districts falling wholly within its territory or for international river basin districts) and consequently has not sent any copy to the Commission. The Commission therefore considers that the Hellenic Republic failed to fulfil both its obligations under Article 13(1), (2), (3) and (6) of the directive and its obligations under Article 15(1) of the directive.

Secondly, under Article 14(1)(c) of the directive, Member States were obliged to make available the draft river basin management plans for public consultation by no later than 22 December 2008.

On the information currently provided by the Hellenic Republic to the Commission, it appears that the procedure concerned has not yet commenced. The Commission therefore considers that the Hellenic Republic failed to fulfil its obligations under Article 14(1)(c) of the directive.

(1) OJ 2000 L 327, p. 1

13.8.2011

Official Journal of the European Union

C 238/12

Appeal brought on 14 June 2011 by XXXLutz Marken GmbH against the judgment of the General Court (Sixth Chamber) delivered on 24 March 2011 in Case T-54/09 XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Natura Selection S.L.

(Case C-306/11 P)

2011/C 238/17

Language of the case: German

Parties

Appellant: XXXLutz Marken GmbH (represented by: H. Pannen, Rechtsanwalt)

Other parties to the proceedings:

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

—	Natura Selection S.L.

Form of order sought

—	Set aside the judgment under appeal;

—	Refer the case back to the General Court;

—	Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

The General Court infringed Article 8(1)(b) of the Community Trade Mark Regulation (1) by concluding that the signs ‘Linea Natura Natur hat immer Stil’ and ‘natura selection’ were similar purely on the basis that both signs contained the word element ‘natura’. That word element is not, however, the dominant element of the earlier trade mark.

In its assessment of the similarity of the signs, the General Court started from a legally incorrect understanding of the concepts of ‘distinctive character’ and ‘descriptive character’.

Furthermore, the conclusions of the General Court concerning the similarity of the signs are contradictory and demonstrate in that regard a failure to state reasons.

In the judgment under appeal the General Court also proceeded on the basis of a distortion of the facts. Contrary to the findings of the General Court, the appellant has already demonstrated, in the proceedings before the Opposition Division and the Board of Appeal, that there is a connection between the goods at issue and the word element ‘natura’.

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

13.8.2011

Official Journal of the European Union

C 238/12

Appeal brought on 24 June 2011 by the European Commission against the order of the General Court (Sixth Chamber) delivered on 13 April 2011 in Case T-320/09 Planet AE v Commission

(Case C-314/11 P)

2011/C 238/18

Language of the case: Greek

Parties

Appellant: European Commission (represented by: F. Dintilhac and D. Triantafyllou)

Other party to the proceedings: Planet AE

Form of order sought

The appellant claims that the Court should:

—	Set aside the order of the General Court of 13 April 2011 in Case Τ-320/09;

—	Declare the action to be inadmissible;

—	Order the respondent to pay the costs.

Pleas in law and main arguments

— Misinterpretation of Decision 2008/969

The form in which the respondent was registered on the EWS, which (as distinct from other forms of registration) is based on mere suspicions, has no consequences other than reinforced monitoring measures (Article 16 of the Decision) which have no binding force vis-a -vis the respondent. The registrations at issue are erroneously confused in the order with other forms of registration, the consequences of which are different.

— The contested registrations caused no real change in legal situation

Mere monitoring of the person registered manifestly does not by itself change his legal situation.

— The respondent is not directly affected by the contested registrations

Such measures as were taken were decided on within the discretion of the competent authorising officer and subsequent to consultation and negotiation with the respondent and its bank. The measures are not direct and automatic consequences of the registrations. Direct effect is however an essential condition for admissibility (Article 263(4) TFEU).

— Failure to examine the relevant pleas and evidence in relation to indirect effect

While the action described the abovementioned consultations and negotiations, the General Court disregarded them and thereby was in breach of the principles of impartiality and objectivity.

— Failure to state reasons

The decision under appeal does not explain the nature of the ‘deterioration’ in the position of the applicant, who was not deprived of any economic advantage, but relieved of the obligation to transfer payments.

Τhe same is true of the consequences of the particular registrations at issue, the binding effect of which is nowhere explained.

— Confusion of legal remedies

The position of the respondent in the consortium is relevant to the form of the contract. As an inseparable part of the contractual framework that could be the subject matter of a contractual dispute (Article 272 TFEU) but not of an application for annulment, since the legal remedies in question have parallel and autonomous validity.

— Breach of contractual freedom and the principle of consent

First, the Commission is not obliged to enter into a contract without taking any precautions, secondly, the respondent agreed to the final contractual framework. Consequently, the General Court erred in seeking legal bases, hearings etc. which are required in cases of ‘penalties’ and are inconsistent with the equal status of the contracting parties.

— Incorrect characterisation of the registrations as decisions

The EWS registrations constitute internal measures, precautionary measures consistent with the principle of sound financial management (Article 27 of the Financial Regulation) which were established in the said Decision 2008/969 as an internal rule of the Commission (see Article 51 of the Financial Regulation) for the information of and use by all delegated authorising officers of that institution. The registrations at issue should not be linked, moreover, with the registrations which lead to exclusion from procedures, since in the present case the contract was concluded with the respondent.

— Linking the admissibility of the action to the question whether it is well-founded

The General Court justifies its order by the need to review the competence of the Commission to issue Decision 2008/969. However, the question of competence is relevant to whether the action is well-founded and cannot determine whether it is admissible.

13.8.2011

Official Journal of the European Union

C 238/14

Judgment of the General Court of 7 July 2011 — Valero Jordana v Commission

(Case T-161/04) (1)

(Access to documents - Regulation (EC) No 1049/2001 — Reserve list for an open competition and individual decisions concerning the appointment of officials - Refusal of access - Exception concerning privacy and the integrity of the individual - Protection of personal data - Regulation (EC) No 45/2001)

2011/C 238/19

Language of the case: Spanish

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. Merola, lawyer)

Defendant: European Commission (represented initially by: P. Aalto and E. Adserá Ribera, later by: E. Adserá Ribera and P. Costa de Oliveira, Agents)

Interveners in support of the applicant: Kingdom of Denmark (represented by: B. Weis Fogh and J. Jørgensen Søren, Agents); Kingdom of Sweden (represented initially by: A. Kruse and K. Norman, later by: A. Falk, S. Johannesson, K. Petkovska and C. Meyer-Seitz, Agents); and European Data Protection Supervisor (EDPS) (represented by: H. Hijmans, H. Kranenborg and R. Barceló, Agents)

Re:

Annulment of the decision of the Commission of 10 February 2004 refusing the applicant’ request for access to the reserve list for open competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Commission of the European Communities of 10 February 2004 refusing to give Mr Gregorio Valero Jordana access to the reserve list for open competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995;

2.	Orders the Commission to bear its own costs and to pay Mr Valero Jordana's costs;

3.	Orders the Kingdom of Sweden to bear its own costs;

4.	Orders the European Data Protection Supervisor (EDPS) to bear his own costs

5.	Removes the Kingdom of Denmark as an intervener in Case T-161/04;

6.	Orders the Kingdom of Denmark to bear its own costs;

7.	Orders Mr Valero Jordana, the Commission, the Kingdom of Sweden and the EDPS to bear their own costs in regard to the Kingdom of Denmark's intervention.

(1) OJ C 168, 26.06.2004.

13.8.2011

Official Journal of the European Union

C 238/14

Judgment of the General Court of 7 July 2011 — Longinidis v Cedefop

(Case T-283/08) (1)

(Appeal - Staff case - Members of the temporary staff - Contract for an indefinite period - Dismissal - Statement of reasons - Manifest error of assessment - Rights of the defence)

2011/C 238/20

Language of the case: Greek

Parties

Appellant: Pavlos Longinidis (Thessaloniki, Greece) (represented initially by: P. Giatagantzidis and S. Stavopoulou, later by: P. Giatagantzidis and K. Kyriazi, lawyers)

Other party to the proceedings: European Centre for the Development of Vocational Training (Cedefop) (represented by: M. Fuchs, Agent, assisted by P. Anestis, lawyer)

Re:

Appeal brought against the judgment of the Civil Service Tribunal (Second Chamber) of 24 April 2008 in Case F-74/06 Longinidis v Cedefop (not yet published in the ECR) seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Mr Pavlos Longinidis to bear his own costs and to pay the costs incurred by the European Centre for the Development of Vocational Training in the present instance.

(1) OJ C 272, 25.10.2008, corrigendum OJ C 313, 6.12.2008.

13.8.2011

Official Journal of the European Union

C 238/15

Judgment of the General Court of 30 June 2011 — Imagion v OHIM (DYNAMIC HD)

(Case T-463/08) (1)

(Community trade mark - Application for Community word mark DYNAMIC HD - Absolute grounds for refusal - Lack of distinctive character - Lack of distinctive character acquired through usage - Article 7(1)(b) and (3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (3) of Regulation (EC) No 207/2009))

2011/C 238/21

Language of the case: German

Parties

Applicant: Imagion AG (Trierweiler, Germany) (represented by: H. Blatzheim, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 13 August 2008 (Case R 488/2008-4) concerning an application for registration of the word mark DYNAMIC HD as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Imagion AG to pay the costs.

(1) OJ C 327, 20.12.2008

13.8.2011

Official Journal of the European Union

C 238/15

Judgment of the General Court of 6 July 2011 — i-content v OHIM (BETWIN)

(Case T-258/09) (1)

(Community trade mark - Application for Community word mark BETWIN - Absolute grounds for refusal - Descriptive nature - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 - Duty to state reasons - Equal treatment - Article 49 EC)

2011/C 238/22

Language of the case: German

Parties

Applicant: i-content Ltd Zweigniederlassung Deutschland (Berlin, Germany) (represented initially by: A. Nordemann, and subsequently by: A. Nordemann and T. Boddien, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 4 May 2009 (Case R 1528/2008-4) concerning an application for registration of the word sign BETWIN as a Community trade mark.

Operative part of the judgment

The Court:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 May 2009 (Case R 1528/2008-4) in so far as concerns services other than the services of ‘conception and development of events, games, lotteries, contests, balls, drawings by lot, competitions of all kinds; gaming halls; operation of casinos; services to sports, games, betting and lottery establishments, including on and via the internet; provision of sport, games, betting and lottery equipment, including on and via the internet; operation of gaming halls; provision of interactive computer games; operation and organisation of casinos, games of chance, card games, bets, sports betting, games of skill; gaming machines; operation of casinos, operation of gaming halls; operation of betting and lottery centres of all kinds’ in Class 41 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and services of ‘conception and development of events, games, lotteries, contests, balls, drawings by lot, competitions for business purposes, organisation of advertising’ in Class 35 of that Arrangement;

2.	Orders each party to bear its own costs.

(1) OJ C 205, 29.8.2009.

13.8.2011

Official Journal of the European Union

C 238/15

Judgment of the General Court of 6 July 2011 — Audi and Volkswagen v OHIM (TDI)

(Case T-318/09) (1)

(Community trade mark - Application for the Community word mark TDI - Absolute ground for refusal - Descriptive character - No distinctive character acquired through use - Article 7(1)(c) and 7(3) of Regulation (EC) No 207/2009 - Articles 75 and 76(1) of Regulation No 207/2009)

2011/C 238/23

Language of the case: German

Parties

Applicants: Audi AG (Ingolstadt, Germany) and Volkswagen AG (Wolfsburg, Germany) (represented by: P. Kather, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 May 2009 (Case R 226/2007-1), concerning an application for registration of the word sign TDI as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Audi AG and Volkswagen AG to pay the costs.

(1) OJ C 267, 7.11.2009.

13.8.2011

Official Journal of the European Union

C 238/16

Judgment of the General Court of 6 July 2011 — Timehouse v OHIM (Shape of a watch with jagged edges)

(Case T-235/10) (1)

(Community trade mark - Application for a three-dimensional mark - Shape of a watch with jagged edges - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)

2011/C 238/24

Language of the case: German

Parties

Applicant: Timehouse GmbH (Eystrup, Germany) (represented by: V. Knies, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 March 2011 (Case R 0942/2009-1), concerning an application for registration of a three-dimensional sign consisting of the shape of a watch as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Timehouse GmbH to pay the costs.

(1) OJ C 209, 31.7.2010.

13.8.2011

Official Journal of the European Union

C 238/16

Order of the General Court of 27 June 2011 — Amecke Fruchtsaft v OHIM — Uhse (69 Sex up)

(Case T-343/09) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2011/C 238/25

Language of the case: German

Parties

Applicant: Amecke Fruchtsaft GmbH & Co. KG (Menden, Germany) (represented by: R. Kaase and J.-C. Plate, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Schäffner and subsequently S. Schäffner and B. Schmidt, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Beate Uhse Einzelhandels GmbH (Flensburg, Germany) (represented by: W. Berlit, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 June 2009 (Case R 1728/2008-1) concerning opposition proceedings between Beate Uhse Einzelhandels GmbH and Amecke Fruchtsaft GmbH & Co. KG.

Operative part of the order

1.	There is no longer any need to adjudicate.

2.	The applicant shall pay the costs.

(1) OJ C 267, 7.11.2009.

13.8.2011

Official Journal of the European Union

C 238/16

Order of the General Court of 22 June 2011 — Evropaïki Dynamiki v Commission

(Case T-409/09) (1)

(Non-contractual liability - Public service contracts - Rejection of a tenderer’s bid - Annulment of the decision by a judgment of the General Court - Limitation period - Time-limits on account of distance - Action in part inadmissible and in part manifestly unfounded in law)

2011/C 238/26

Language of the case: English

Parties

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

Defendant: European Commission (represented by: M. Wilderspin and E. Manhaeve, acting as Agents)

Re:

Action for damages for the loss allegedly suffered by the applicant as a result of the decision of the Commission of 15 September 2004 rejecting its bid and awarding the contract to another tenderer in the course of the tendering procedure for the provision of computer and related services linked to the information systems of the Directorate-General for Fisheries.

Operative part of the order

1.	The action is dismissed.

2.	Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall pay the costs.

(1) OJ C 11, 16.1.2010.

13.8.2011

Official Journal of the European Union

C 238/16

Order of the General Court of 21 June 2011 — Rosenbaum v Commission

(Case T-452/09 P) (1)

(Appeal - Civil service - Officials - Classification in grade at the time of recruitment - Taking account of the professional experience of the person concerned - Article 31 of the Staff Regulations - Obligation to state reasons)

2011/C 238/27

Language of the case: German

Parties

Appellant: Eckehard Rosenbaum (Berlin, Germany) (represented by: H.-J. Rüber, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and E. Eggers, Agents); and Council of the European Union (represented by: K. Zieléskiewicz and M. Bauer, Agents)

Re:

Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) in Case F-9/08 Rosenbaum v Commission, judgment of 10 September 2009, not published in the ECR, asking for that judgment to be set aside.

Operative part of the order

The Court:

1.	Dismisses the appeal.

2.	Orders Mr Eckehard Rosenbaum to bear his own costs and to pay those incurred by the European Commission in the present proceedings.

3.	Orders the Council of the European Union to bear its own costs.

(1) OJ C 11, 16.1.2010.

13.8.2011

Official Journal of the European Union

C 238/17

Order of the General Court of 21 June 2011 — Marcuccio v Commission

(Case T-12/10 P) (1)

(Appeal - Civil service - Officials - Reimbursement of expenses - Note of the Commission informing the applicant of its intention to make a deduction from his invalidity allowance - Lack of any measure adversely affecting the appellant - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 238/28

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, and A. Dal Ferro, lawyer)

Re:

Appeal brought against the order of the European Union Civil Service Tribunal (First Chamber) of 29 October 2009 in Case F-94/08 Marcuccio v Commission, not yet published in the ECR, seeking the annulment of that order.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission at the present instance.

(1) OJ C 63, 13.3.2010.

13.8.2011

Official Journal of the European Union

C 238/17

Order of the General Court of 27 June 2011 — Amecke Fruchtsaft v OHIM — Uhse (69 Sex up)

(Case T-125/10) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2011/C 238/29

Language of the case: German

Parties

Applicant: Amecke Fruchtsaft GmbH & Co. KG (Menden, Germany) (represented by: R. Kaase and J.-C. Plate, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Schäffner and subsequently S. Schäffner and B. Schmidt, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Beate Uhse Einzelhandels GmbH (Flensburg, Germany) (represented by: W. Berlit, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 January 2010 (Case R 612/2009-1) concerning opposition proceedings between Beate Uhse Einzelhandels GmbH and Amecke Fruchtsaft GmbH & Co. KG.

Operative part of the order

1.	There is no longer any need to adjudicate.

2.	The applicant shall pay the costs.

(1) OJ C 148, 5.6.2010.

13.8.2011

Official Journal of the European Union

C 238/17

Order of the General Court of 20 June 2011 — Marcuccio v Commission

(Case T-256/10 P) (1)

(Appeal - Civil Service - Officials - Removal of personal effects - Implied and express rejection of the appellant’s requests - Duty to state reasons - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 238/30

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, and A. Dal Ferro, lawyer)

Re:

Appeal brought against the order of the European Union Civil Service Tribunal (First Chamber) of 25 March 2010 in Case F-102/08 Marcuccio v Commission, not yet published in the ECR, seeking the annulment of that order.

Operative part of the order

1.	The appeal is dismissed.

2.	Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission at the present instance.

(1) OJ C 221, 14.8.2010.

13.8.2011

Official Journal of the European Union

C 238/18

Action brought on 19 April 2011 — J v Parliament

(Case T-160/10)

2011/C 238/31

Language of the case: German

Parties

Applicant: J (Marchtrenk, Austria) (represented by: A. Auer, Rechtsanwalt)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Petitions Committee of the European Parliament of 2 March 2010, whereby the applicant’s Petition No 1673/2009 of 19 November 2009 was dismissed;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of the decision of the Petitions Committee of the European Parliament of 2 March 2010, whereby his petition concerning the alleged confiscation of various documents and works by Austrian officials was dismissed.

In support of his action, the applicant claims that his right to the admission of his petition has been infringed. The confiscation of the works by the Austrian authorities constituted an infringement of the right to property under Article 6(1) TFEU and Articles 17(1) and 51(1) of the The Charter of Fundamental Rights of the European Union.

13.8.2011

Official Journal of the European Union

C 238/18

Action brought on 2 May 2011 — Fraas v OHIM (Dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern)

(Case T-231/11)

2011/C 238/32

Language of the case: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of 4 March 2011 in Case R 2041/2010-4 relating to Community trade mark application No 008 423 626 (figurative mark);

—	Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern for goods in Classes 18, 24, and 25 — application No 8 423 626.

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation No 207/2009, as the Community trade mark at issue has distinctive character, and infringement of Articles 75 and 76 of Regulation No 207/2009, as the Board of Appeal did not examine the extensive factual and legal submissions of the applicant.

13.8.2011

Official Journal of the European Union

C 238/18

Action brought on 13 May 2011 — FairWild Foundation v OHIM — Wild (FAIRWILD)

(Case T-247/11)

2011/C 238/33

Language in which the application was lodged: German

Parties

Applicant: FairWild Foundation (Weinfelden, Switzerland) (represented by: P. Neuwald and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Rudolf Wild GmbH & Co. KG (Eppelheim, Germany)

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 March 2011 in the appeal proceedings in Case R 1014/2010-1;

—	reject the opposition to registration of international mark No 950 962‘FAIRWILD’;

—	order the defendant and the opponent to pay the applicant’s costs of the proceedings, including the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: FairWild Foundation.

Community trade mark concerned: Word mark ‘FAIRWILD’ for goods in classes 3, 5, 29 and 30 — international registration No 950 962.

Proprietor of the mark or sign cited in the opposition proceedings: Rudolf Wild GmbH & Co. KG.

Mark or sign cited in opposition: Community word mark ‘WILD’ for goods in classes 3, 9, 29, 30 and 32.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Decision of the Opposition Division annulled in part.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, as the Board of Appeal erroneously assumed that there was a likelihood of confusion between the opposing marks. The applicant complains that the Board of Appeal (i) wrongly assumed that the meaning of the sign ‘WILD’ is familiar only to the German and English-speaking public, and (ii) proceeded on the assumption that the term is not descriptive of the goods covered by the mark cited in opposition. On that basis, the Board of Appeal erred in law in ascribing average distinctiveness to the mark cited in opposition and in finding an average degree of similarity between the signs, as a result of which the assessment of the interrelated aspects of the likelihood of confusion had an unfavourable outcome as far as the applicant was concerned.

13.8.2011

Official Journal of the European Union

C 238/19

Action brought on 23 May 2011 — Bopp v OHIM (Octagon with green sides)

(Case T-263/11)

2011/C 238/34

Language of the case: German

Parties

Applicant: Carsten Bopp (Glashütten, Germany) (represented by C. Russ, lawyer)

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

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2011 in Case R 605/2010-4.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark consisting of an octagon with green sides — application No 8 248 965.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for is distinctive on account of the identifiable, spatial representation.

13.8.2011

Official Journal of the European Union

C 238/19

Action brought on 30 May 2011 — Hotel Reservation Service Robert Ragge v OHIM — Promotora Imperial (iHotel)

(Case T-277/11)

2011/C 238/35

Language in which the application was lodged: German

Parties

Applicant: Hotel Reservation Service Robert Ragge GmbH (Cologne, Germany) (represented by: M. Koch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Promotora Imperial, SA

Form of order sought

—	Vary the decision of the First Board of Appeal of 24 February 2011 in Case R 832/2010-1 so as to uphold the main appeal and annul opposition No B 1458571; order the opponent to pay the costs of the opposition and appeal proceedings; uphold the decision as to the remainder;

—	Order OHIM to pay the costs of this action.

Pleas in law and main arguments

Applicant for a Community trade mark: Hotel Reservation Service Robert Ragge GmbH.

Community trade mark concerned: Word mark ‘iHotel’ for services in Classes 35, 39, 41, 42 and 43 — application No 6912877.

Proprietor of the mark or sign cited in the opposition proceedings: Promotora Imperial, SA

Mark or sign cited in opposition: Community word mark ‘i-hotel’ for goods and services in Classes 16, 41 and 43.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the trade marks at issue. The applicant claims that the Board of Appeal was incorrect in holding there to be similarity both between the goods and services concerned and between the trade marks at issue.

13.8.2011

Official Journal of the European Union

C 238/20

Action brought on 31 May 2011 — Ewald v OHIM — Kin Cosmetics (Keen)

(Case T-280/11)

2011/C 238/36

Language in which the application was lodged: German

Parties

Applicant: Rita Ewald (Frauenwald, Germany) (represented by: S. Reinhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kin Cosmetics, SA (Sant Feliu de Guixols, Spain)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the First Board of Appeal of OHIM of 3 March 2011 in Case R 1383/2010-1;

—	Reject the opposition filed at OHIM on 24 July 2008 under No B 1359944 by KIN COSMETICS, SA against Community trade mark application No EM 006 498 621‘Keen’;

—	In the alternative, in the event that the Court cannot itself reach a decision under the second head of claim, refer the case back to OHIM for a fresh decision;

—	Order the defendant and KIN COSMETICS, SA, in so far as it decides to participate in the proceedings, 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 ‘Keen’ for goods and services in Classes 3 and 44 — application No 6 498 621

Proprietor of the mark or sign cited in the opposition proceedings: Kin Cosmetics, SA

Mark or sign cited in opposition: the Community and national word and figurative marks ‘KIN’, ‘KinBooKs’, ‘KINWORKS’ and ‘KINSTYLIUM’ for goods and services in Classes 3, 5, 35 and 44

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.

13.8.2011

Official Journal of the European Union

C 238/20

Appeal brought on 3 June 2011 by Diego Canga Fano against the judgment of the Civil Service Tribunal of 24 March 2011 in Case F-104/09, Canga Fano v Council

(Case T-281/11 P)

2011/C 238/37

Language of the case: French

Parties

Appellant: Diego Canga Fano (Brussels, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

The applicant claims that the Tribunal should:

—	declare the appeal admissible;

—	set aside the judgment delivered on 24 March 2011 by the Civil Service Tribunal of the European Union in Case F-104/09;

—	grant the applications for annulment and damages which the applicant brought before the Civil Service Tribunal, subject to the proviso that the applicant would be satisfied with the annulment of the decision adopted and would accept one euro as symbolic compensation for the damage caused to him;

—	order the Council to pay the costs of both instances.

Pleas in law and main arguments

In support of the appeal, the appellant relies on a single plea in law, divided into three parts and alleging an error of law.

—

In the first part, the applicant claims that the Civil Service Tribunal interpreted the applicable provisions in a manner contrary to that laid down by the Court of Justice and the General Court in their case-law concerning the appointing authority's discretion (paragraphs 35 and 36 of the judgment under appeal).

—

In the second part, the applicant claims that the Civil Service Tribunal drew conclusions unjustified in law in its review of the manifest error of assessment (paragraphs 48, 51, 52, 58, 78, and 79 of the judgment under appeal) and contradicted its own criteria, with which it claims to replace the case-law of the Court of Justice and the General Court.

—	In the third part, the applicant claims that the Civil Service Tribunal's statement of reasons is vitiated by inaccuracies of fact, linked to distortion of, or failure to take account of, evidence put before it (paragraphs 80, 81, 85, 88 and 90 of the judgment under appeal).

13.8.2011

Official Journal of the European Union

C 238/21

Action brought on 6 June 2011 — Gooré v Council

(Case T-285/11)

2011/C 238/38

Language of the case: French

Parties

Applicant: Charles Kader Gooré (Abidjan, Côte d’Ivoire) (represented by: F.L. Meynot, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—

annul in part Council Regulation (EU) No 330/2011 of 6 April 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, as regards the inclusion of the name of Mr Charles Kader Gooré in the list in Annex II thereto (and declare that it is inapplicable to him);

—	order the Council of the European Union to pay damages to Mr Charles Kader Gooré in the amount of fifty thousand euros (EUR 50 000) by way of compensation for the harm suffered;

—	order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The applicant puts forward two pleas in law in support of his action:

The first plea in law alleges infringement of essential procedural requirements. The applicant criticises the Council of the European Union, first, of failing to provide a statement of reasons and, second, of infringing the principle of proportionality, in that the restrictive measures go beyond what is necessary for achieving the objectives pursued by the Council of the European Union.

The second plea in law alleges infringement of the treaties. The applicant criticises the Council of the European Union, first, of infringing the rights of the defence in that all of the evidence in support of a measure were never communicated to the applicant and, second, of infringing the right to property.

13.8.2011

Official Journal of the European Union

C 238/21

Action brought on 6 June 2011 — Heitkamp BauHolding v Commission

(Case T-287/11)

2011/C 238/39

Language of the case: German

Parties

Applicant: Heitkamp BauHolding GmbH (Herne, Germany) (represented by: W. Niemann, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul the Commission's decision of 26 January 2011, as amended on 15 April 2011, which, to the applicant's knowledge, is yet to be published in the Official Journal of the European Union;

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

Pleas in law and main arguments

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

—

The Sanierungsklausel (Scheme on the fiscal carry-forward of losses in the case of restructuring of companies in difficulty) in Paragraph 8c(1a) of the German Law on Corporation Tax (Körperschaftssteuergesetz; ‘KStG’) is not State aid for the purposes of Article 107 TFEU. In classifying the system of reference the Commission erred in considering that system to be ‘the rules on … loss carry-forward for companies subject to change in their shareholding’. On the contrary, the applicant claims that the system of reference is actually the indefinite carry-forward of losses; the carry-forward is also used for the purposes of corporate taxation as a corollary of the objective net principle.

—

The loss of carry-forwards provided for in Paragraph 8c KStG must therefore be classed as an exception, whilst the Sanierungsklausel in Paragraph 8c(1a) KStG, for its part, constitutes an exception to the exception which merely reinstates the general rule, thereby rendering the principle that taxable persons should contribute to State financing in accordance with their means (the Leistungsfähigkeitsprinzip) applicable in cases of corporate restructuring.

—

It is true that the defendant acknowledges that ‘the system of reference is the KStG in its current form’, but it fails to appreciate that the legal situation in the Federal Republic was changed by the introduction of the Law on acceleration of growth (the Wachstumsbeschleunigungsgesetz). Since the introduction of the provision on hidden reserves in Paragraph 8c KStG, in healthy undertakings losses can still be deducted and carried forward where the changes made to the shareholding do not exceed the amount of the hidden reserves. Thus, for healthy undertakings, the provision on hidden reserves can be understood as the counterpart of the Sanierungsklausel for undertakings in difficulty, since otherwise, undertakings in need of restructuring would be disadvantaged in structural terms.

—

Contrary to the Commission's complaint, the Sanierungsklausel, which treats economically sound undertakings and those in need of restructuring unequally, is not a selective measure, but the concretisation of the principle that taxable persons should contribute to State financing in accordance with their means, which is a constitutional principle which has always been recognised by the German Basic Law (Grundgesetz). In the applicant’s view, it thus forms part of the internal logic of the system of reference. The Sanierungsklausel is thus in conformity with the basic or guiding principles of the German tax system.

—	In any case, on the basis of those guiding principles, the introduction of the Sanierungsklausel in Paragraph 8c KStG is a measure which is ‘justified by the nature and the logic of the [German tax] system’ and which, to an extent, revalidates that internal structure.

13.8.2011

Official Journal of the European Union

C 238/22

Action brought on 7 June 2011 — Deutsche Bahn a.o. v Commission

(Case T-289/11)

2011/C 238/40

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), DB Mobility Logistics AG (DB ML AG) (Berlin, Germany), DB Energie GmbH (Frankfurt-am- Main, Germany), DB Schenker Rail GmbH (Mainz, Germany) (represented by: W. Deselaers, J.S. Brückner and O. Mross, lawyers)

Defendant: European Commission

Forms of order sought

The applicants claim that the Court should:

—	annul the Commission’s inspection decision of 14 March 2011 notified on 29 March 2011;

—	annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

—	in particular order the Commission to return all the copies of documents made during the inspections, on pain of the annulment of the future Commission decision by the General Court; and

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 1774 of 14 March 2011 (Cases COMP/39.678 and COMP/39.731), ordering, in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (1), inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter by reason of a possible preference of subsidiary undertakings by means of a rebate system in the supply of electromotive power.

In support of their action, the applicants make five pleas in law.

1.	First plea: infringement of the fundamental right to inviolability of one’s premises by reason of lack of prior judicial authorisation.

2.	Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from the factual and the legal point of view.

3.	Third plea: infringement of defence rights by reason of a disproportionately wide and non-specific subject-matter of the inspection (‘fishing expedition’).

Fourth plea: infringement of the principle of proportionality. The inspection decision is disproportionate, since the rebate system for electromotive power has been practised by the applicants for years and has been monitored by the authorities and the German courts many times and found compatible with competition law, and since the answer to the question whether the rebate system is ‘objectively justified’, which the Commission regards as the decisive question, could have been answered by a less invasive measure, namely a request for information.

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

13.8.2011

Official Journal of the European Union

C 238/22

Action brought on 7 June 2011 — Deutsche Bahn and Others v Commission

(Case T-290/11)

2011/C 238/41

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), DB Mobility Logistics AG (DB ML AG) (Berlin, Germany), DB Netz AG (Frankfurt am Main, Germany), Deutsche Umschlaggesellschaft Schiene-Strasse mbH (DUSS) (Bodenheim, Germany) DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J.S. Brückner and O. Mross, lawyers)

Defendant: European Commission

Forms of order sought

The applicants claim that the Court should:

—	annul the Commission’s inspection decision of 30 March 2011 notified on 31 March 2011;

—	annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

—	in particular order the Commission to return all the copies of documents made during the inspections, on pain of the annulment of the future Commission decision by the General Court, and

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 2365 of 30 March 2011 (Cases COMP/39.678 and COMP/39.731), ordering, in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (1), inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group and of the provision of rail-linked services.

In support of their action, the applicants make five pleas in law.

1.	First plea: infringement of the fundamental right to inviolability of one’s premises by reason of lack of prior judicial authorisation.

2.	Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from the factual and the legal point of view.

Third plea: Unlawfulness of the inspection decision, as it is based on information obtained by the Commission in the course of implementing the inspection decision on the system of rebates for electric traction energy, in the context of a very broad inquiry (‘fishing expedition’), and thus in breach of the applicants’ defence rights.

4.	Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific subject-matter of the inspection.

Fifth plea: infringement of the proportionality principle, as the Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.

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

13.8.2011

Official Journal of the European Union

C 238/23

Action brought on 9 June 2011 — Cemex and Others v Commission

(Case T-292/11)

2011/C 238/42

Language of the case: Spanish

Parties

Applicants: Cemex S.A.B. de C.V. (Monterrey, Mexico), New Sunward Holding BV (Amsterdam, The Netherlands), Cemex España, SA (Madrid, Spain), CEMEX Deutschland AG (Düsseldorf, Germany), Cemex UK (Egham, United Kingdom), CEMEX Czech Operations s.r.o. (Prague, Czech Republic), Cemex France Gestion (Rungis, France), CEMEX Austria AG (Langenzersdorf, Austria) (represented by: J. Folguera Crespo, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

annul Article 1 of the Commission's decision of 30 March 2011; in the alternative, partially annul that article so as to exonerate the applicants from the requirement to provide information in response to the questions in Annex I to the decision with respect to all aspects which go beyond the limits of the rules and principles applicable to the Commission under European Union law;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The action has been brought against the Commission's decision of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003, adopted in relation to Case COMP/39.520 — Cement and related products.

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

First plea in law, alleging an infringement of Article 18 of Regulation (EC) No 1/2003.

—

The applicants submit in this regard that the Commission went beyond the limits of its powers laid down in that provision and the case-law of the Court of Justice, even going as far as requesting information which it knew that the applicants did not hold. Moreover, that request required the applicants not only to produce, but also to process, millions of items of data of an economic nature, thereby transferring to them the investigatory role incumbent upon the Commission.

Second plea in law, alleging an infringement of Article 18 of Regulation (EC) No 1/2003.

—

According to the applicants, the Commission required information to be provided which was not necessary for the investigation of the alleged restrictive practices identified in the contested decision. That information bears no relation to the purpose of the investigation, is public information, or is information which has already been provided in response to earlier requirements, or amounts to data processing.

Third plea in law, alleging an infringement of the principle of proportionality.

—

The applicants claim in this respect that the Commission requested the applicants to provide information whose collection or processing was not only unnecessary in many instances but also led to their incurring an excessive and disproportionate burden. Moreover, an extremely short time limit was imposed within which to reply and their applications to have that time limit extended were rejected.

4.	Fourth plea in law, based on an infringement of Article 296 TFEU in that the Commission has not given sufficient reasons regarding the necessity and proportionality of the requested information.

5.	Fifth plea in law, based on an infringement of the principle of legal certainty, in so far as the wording of the contested decision is uncertain and imprecise.

Sixth plea in law, based on a failure to have regard to Article 3 of Regulation (EEC) No 1/1958 which lays down the language regime of the European Economic Community.

—	The applicants submit in this regard that the Commission refused to transmit the contested decision to the subsidiaries to which it applies in the language of the Member States which have jurisdiction over them, thereby knowingly making the task of data collection more difficult.

13.8.2011

Official Journal of the European Union

C 238/24

Action brought on 9 June 2011 — Holcim (Deutschland) and Holcim v Commission

(Case T-293/11)

2011/C 238/43

Language of the case: German

Parties

Applicants: Holcim AG (Hamburg, Germany) and Holcim Ltd (Zurich, Switzerland) (represented by: P Niggemann and K Gaβner, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

—	annul the defendant's decision of 30 March 2011, adopted in proceedings under Article 18(3) of Council Regulation (EC) No 1/2003 in Case COMP/39520 — Cement and related products;

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

Pleas in law and main arguments

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

First plea in law: there was no valid notification of the information decision

Before issuing the information decision the defendant was provided with powers of attorney in respect of Holcim AG (the first applicant) and statements from all the Holcim group companies concerned agreeing to use English as the language of the case. However, the information decision was addressed to Holcim Ltd (the second applicant) and ‘served on’ Holcim AG (the first applicant), even though there was no power of representation to that effect. The working language of Holcim Ltd and of the vast majority of the other companies concerned of the Holcim group is English, with the result that it was not possible to take sufficient note of the decision.

Second plea in law: the time limit within which to reply was too short and the Commission refused to extend that time limit

The information decision concerns a vast amount of detailed information on 15 group companies (such as transaction data, imports and exports, production data, market shares etc) over a period of 10 years. On the basis of the draft decision, thus at an early stage, the applicants gave the Commission detailed reasons why the 12-week time limit to provide the requested information was clearly too short. Given that the proceedings had already been underway for two and a half years and the applicants had already cooperated extensively with the Commission it was appropriate to extend the time limit. Moreover, the Commission itself delayed the data collection and made it more difficult by drafting the information decision in German, in spite of the applicants' consent to continue using English as the language of the case, thereby making it impossible for two thirds of the Holcim group companies to work with it.

Third plea in law: the Commission required Holcim to provide data and information which the latter did not have at its disposal

To a large extent, the information decision requires data and information from the applicants which they do not have at their disposal in the required form. Moreover, data is required which the applicants could only have produced at an exorbitant cost in terms of staff and time as a result of a change in their IT system. Such efforts do not fall within the requirement to produce information in accordance with the decision.

4.	Fourth plea in law: infringement of the duty to give reasons In the information decision, sufficient grounds are neither given for the investigation nor the choice of means of investigation, that it to say one which prescribes a penalty.

Fifth plea in law: infringement of the requirement that the means be necessary

Thus far the applicants have complied extensively and in full with every request for information, with the result that there was no justification for adopting an information decision prescribing a penalty instead of the less drastic option of informal requests for information.

6.	Sixth plea in law: infringement of the principle of precision In several respects, the information decision is not sufficiently clear in relation to the requested data and information, the burden of which is borne exclusively by the applicants.

Seventh plea in law: infringement of the general principle of proportionality

Given that the proceedings have been under way for two and a half years the ambiguous and vague nature of the data and information collection on such a scale is disproportionate, particularly since the Commission has requested comparable information on various occasions in different formats. The Commission's refusal to extend the time limit is grossly disproportionate given the facts and that the proceedings have already been underway for two and a half years.

Eighth plea in law: the defendant did not have the authority to ask questions relating to Holcim (Česko) a.s. in respect of the period prior to the accession of the Czech Republic to the European Union

Requesting data for the period prior to a country's accession to the European Union is not admissible.

13.8.2011

Official Journal of the European Union

C 238/25

Action brought on 9 June 2011 — Hellenic Republic v Commission

(Case T-294/11)

2011/C 238/44

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

Annul the Commission implementing decision of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic, or alternatively vary it;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

By its action the Hellenic Republic seeks the annulment of the Commission decision of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), notified as C(2011) 2517, published in the official Journal of the European Union (OJ 2011 L 102, p. 33) and numbered 2011/244/EU, in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic, in the areas of (a) olive oil production aid, (b) expenditure on setting up the olive cultivation-GIS, and (c) direct aid (arable crops).

As regards the correction in the area of olive oil production aid, the applicant maintains, first, that the Commission made an erroneous assessment of the facts since the weaknesses in the way the basic checks to the system are generally carried out are minimal and do not justify a corresponding correction of 10 % and 15 %, particularly when since 1/11/2003 there has been established a fully functioning and reliable olive cultivation geographical information system (Olive cultivation-GIS) in Greece, as the main control tool of the entire system of olive oil production aid, and the cultivation information is checked in detail, and checks are also made on the olive grove production and the entire operation of oil mills.

The applicant claims, secondly, that: (a) the Commission’s decision has no valid and sufficient legal basis for the increase in the correction because of repeat offending, and the meaning which the Commission gives to that term is incorrect, given that it is clear that there are no recurrent weaknesses, and repeat offending, as assumed by the Commission, is based on a mistaken premise, because an incorrect meaning is given by the Commission to that term, and the consequence is a manifestly erroneous assessment of the allegedly recurrent weaknesses, since, moreover, the main control tool of the system, the Olive cultivation-GIS has been established and (b) the Commission made an erroneous assessment of the facts, since in any event there is no legal basis and no justification for the increase of the correction from 10 % for the period 2003-2004 to 15 % for the period 2004-2005, given that there were numerous improvements and continuous updating of the Olive cultivation-GIS in that period and indeed the control system not only did not deteriorate but substantially improved.

As regards the corrections in the area of expenditure in establishing the Olive cultivation-GIS, the applicant maintains, first, that there is no valid legal basis for the financial correction to the expenditure which relates to procedures for establishing the Olive cultivation-GIS, since the money which was made available for its development was deducted from aid to which the Greek producers were entitled, and the failure to recognise that expenditure invites an argument of unjustified enrichment of EAGGF and double financial penalty, since, in any event, all the expenditure which took place is ineligible, if it did not exceed the budget as determined by the Commission and the total amount which was deducted from Greek producers, since the critical time for the decision whether particular expenditure is or is not lawful is the time of acceptance of a legal commitment or the time when the expenditure is effected and not the time when the expenditure is declared.

The applicant secondly claims: (a) breach of the principle of proportionality as regards the expenditure amounting to 2 920 191,03 which ensued from the additional contracts and (b) the erroneous assessment of the facts as regards the expenditure which ensued from the contract 5190/ES/2003.

In connection with the corrections in the area of direct aid (arable crops), the applicant maintains, first, that: (a) there was no valid legal basis for applying the old guidelines, which laid down fixed percentages for the application of corrections to the new common agricultural policy (CAP), to the new single payment scheme and (b) their application seriously infringes the principle of proportionality.

The applicant maintains, secondly, that the Commission made an erroneous assessment of the facts: (a) in relation to the alleged weakness of the LPIS-GIS, (b) in relation to the fact that if a comparison is made of information from the LPIS-GIS which was used for the claim year 2007 with the information from the complete and reliable 2009 LPIS-GIS, which the Commission checked by an on-the-spot inspection, it is clear that the differences and deficiencies are minimal and do not exceed 2 % and, accordingly, any correction should not exceed that percentage and (c) in relation to the alleged weaknesses in management checks, cross-checks and on-the-spot checks and their quality and in particular the alleged failure to measure grazing land and the alleged lateness in carrying out on-the-spot checks, since the multiplicity of improvements made in the 2007 claim year should lead the Commission to the conclusion that no correction is necessary.

Lastly, the applicant claims that there was an erroneous interpretation and application of Article 33 of Regulation 1290/05 (1) in relation to the correction to expenditure on rural development measures.

(1) Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy

13.8.2011

Official Journal of the European Union

C 238/26

Action brought on 9 June 2011 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)

(Case T-295/11)

2011/C 238/45

Language in which the application was lodged: English

Parties

Applicant: Duscholux Ibérica, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Duschprodukter i Skandinavien AB (Hisings Backa, Sweden)

Form of order sought

—	Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

—	Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

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

Pleas in law and main arguments

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

Community trade mark concerned: The international figurative mark ‘duschy’, for goods in classes 11 and 20 — Community trade mark application No W927073

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

Mark or sign cited in opposition: Community trade mark registration No 2116820, of the figurative mark ‘DUSCHO Harmony’, for goods in classes 6, 11 and 19

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial; infringement of Articles 75 and 76 of Council Regulation No 207/2009, because the Board of Appeal disregarded facts and evidences that were submitted in due time by the applicant; and, infringement of Article 8(1)(b) of Council Regulation No 207/2009, because the Board of Appeal wrongly found that there was no risk of confusion between the conflicting trademarks.

13.8.2011

Official Journal of the European Union

C 238/26

Action brought on 8 June 2011 — Cementos Portland Valderrivas v Commission

(Case T-296/11)

2011/C 238/46

Language of the case: Spanish

Parties

Applicant: Cementos Portland Valderrivas, SA (Pamplona, Spain) (represented by: L. Ortiz Blanco, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	declare the action admissible;

—	annul the Commission's decision of 30 March 2011;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on a single plea of nullity, alleging an infringement of Article 18 of Regulation No 1/2003 and the principle of proportionality.

—

First, the applicant submits that the information requested in the contested decision bears no relation to the infringement under investigation and, as such, cannot assist the Commission in its task of verifying any evidence which justifies the investigation in relation to Valderrivas. Consequently, the applicant claims that the requirement of necessity to which requests for information are subject by way of Article 18 of Regulation No 1/2003 is not satisfied. Moreover, the applicant submits that the fact that the decision does not contain any references to such evidence cannot prevent the General Court from carrying out its task of reviewing the requirement of necessity.

—

Second, the applicant alleges that the contested decision infringes the principle of proportionality in that it imposes on it a disproportionate burden in relation to the requirements of the investigation. The disproportionate nature of the decision is reflected in the excessive scope of the information requested, the high level of detail required, the requirement to process and submit the requested information in the stated formats and within the time limit set out to that effect.

13.8.2011

Official Journal of the European Union

C 238/27

Action brought on 31 May 2011 — Ghost Brand v OHIM — Procter & Gamble International Operations (GHOST)

(Case T-298/11)

2011/C 238/47

Language in which the application was lodged: English

Parties

Applicant: Ghost Brand Ltd (London, United Kingdom) (represented by: N. Caddick, QC)

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

The Appellant to the proceedings before the Board of Appeal: Procter & Gamble International Operations SA (Geneva, Switzerland)

Form of order sought

—

Order that transfer of ownership in respect of Community Trade Mark Registration No 000282350 ‘GHOST’ to Procter & Gamble International Operations S.A. should be recorded and published only in respect of ‘cosmetics’, and that ownership of the registration in relation to all goods in class 25, and ‘soaps, perfumery, essential oils, hair lotions’ in class 3 should remain in the name of Ghost Brand Limited.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for transfer of ownership has been made: The word mark ‘GHOST’, for goods in class 3 (‘soaps, perfumery, essential oils, cosmetics, hair lotions’) — Community trade mark registration No 282350

Proprietor of the Community trade mark: The applicant

Party applying for the transfer of ownership of the Community trade mark: The Appellant to the proceedings before the Board of Appeal

Decision of the Department for Designs and Register: Rejected the application for a partial transfer of ownership

Decision of the Board of Appeal: Annulled the contested decision and decided that the Department for Designs and Register shall record and publish the transfer of ownership

Pleas in law: The applicant advances three pleas in law, mainly that: (i) the Second Board of Appeal erred in not notifying the applicant of the appeal proceedings, or the appeal decision; (ii) the Second Board of Appeal was not provided with all of the necessary information, and the appellant’s appeal was based on deception; and, (iii) the appellant acted in bad faith in appealing the decision of the Office for Harmonisation in the Internal Market.

13.8.2011

Official Journal of the European Union

C 238/27

Action brought on 10 June 2011 — Otto v OHIM — Nalsani (TOTTO)

(Case T-300/11)

2011/C 238/48

Language in which the application was lodged: German

Parties

Applicant: Otto GmbH & Co. KG (Hamburg, Germany) (represented by: P. Schäuble and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nalsani, SA (Bogota, Colombia)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 March 2011 in Case R 1291/2010-2;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Nalsani, SA

Community trade mark concerned: the figurative mark ‘TOTTO’ for goods in Classes 3, 9, 14, 18 and 25 — application No 6 212 451

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

Mark or sign cited in opposition: the national figurative mark ‘OTTO’ for goods in Classes 3, 9, 14, 18 and 25

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is a likelihood of confusion between the marks at issue. The Board of Appeal focused on the wrong factors in assessing the visual similarity of the signs.

13.8.2011

Official Journal of the European Union

C 238/28

Action brought on 10 June 2011 — HeidelbergCement v Commission

(Case T-302/11)

2011/C 238/49

Language of the case: German

Parties

Applicant: HeidelbergCement AG (Heidelberg, Germany) (represented by: U. Denzel and T. Holzmüller, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul Articles 1 and 2 of the Commission's decision of 30 March 2011 in Case COMP/39520 — Cement and related products, in accordance with the fourth paragraph of Article 263 TFEU, in so far as they concern the applicant;

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

Pleas in law and main arguments

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

First plea in law: infringement of Article 18(3) of Regulation (EC) No 1/2003 (1)

The contested decision infringes Article 18(3) of Regulation No 1/2003 since it does not give sufficient detail on the purpose of the investigation and requests company information which is not ‘necessary’, within the meaning of Article 18 of Regulation No 1/2003, to investigate the allegations made.

—

The applicant was not informed in the contested decision or at any other stage of the investigation procedure of what exactly is being investigated. The decision thus infringes the duty in Article 18(3) of Regulation No 1/2003 to communicate the purpose of the investigation. According to settled case-law of the Courts of the European Union, sufficient detail of allegations needs to be given so that the addressees and Courts can assess the necessity of the information requested for the investigation.

—

The decision largely requests the resubmission of information which has already been provided to the Commission in response to earlier requests for information. The information which is already at the Commission's disposal is not ‘necessary’ information within the meaning of Article 18(3) of Regulation No 1/2003.

—

There is no apparent link between the requested information and the Commission's ‘suspicion’. The Commission misused its powers under Article 18(3) of Regulation No 1/2003 to go on a general ‘fishing expedition’ in relation to the applicant. For such general investigations of the market the Commission has Article 17 of Regulation No 1/2003 at its disposal.

—	The Commission goes beyond its powers in Article 18(3) of Regulation No 1/2003 since, in the contested decision, it requires the applicant to analyse and evaluate the requested information.

Second plea in law: infringement of the principle of proportionality

The breadth of the requested information, the choice of means and the short time limit infringe the principle of proportionality.

—	The composition and processing of the requested information in the prescribed form was too cumbersome for the applicant and was not proportionate to the general nature of the requested information and the purpose of the investigation.

—	the 12-week time limit within which to reply and the Commission's refusal to extend that time limit were disproportionate. It was objectively impossible for the applicant to respect that time limit.

Third plea in law: infringement of the duty to give reasons in the second paragraph of Article 296 TFEU

The contested decision infringes the requirements in the second paragraph of Article 296 TFEU that legal acts are to state the reasons on which they are based in a proper manner, since it is not apparent from that decision why the Commission requested such extensive information, why it proceeded on the basis of Article 18(3) of Regulation No 1/2003 and why it imposed such a time constraint.

—	The contested decision neither sets out the Commission's concrete allegations, nor why the Commission required such exceptionally detailed and extensive information.

—	In contrast to earlier investigations, the Commission does not state the reasons why it considered it appropriate and necessary to proceed on the basis of Article 18(3) of Regulation No 1/2003 in relation to the applicant.

—	The Commission does not give sufficient reasons why it set such a short time limit and why it refused to extend that time limit.

Fourth plea in law: infringement of the general principle of precision

In the applicant's view, the contested decision and the questionnaire sent with it infringe the requirements of the general principle of precision, since, in many respects, they are unclear, uncertain and contradictory and do not contain any clear guidance for the applicant on how to proceed. The applicant is unable to determine, beyond doubt, what it is required to do in order to avert the risk of being sanctioned. The Commission failed to respond, or at least in a sufficient manner, to the applicant's extensive enquiries and requests for clarification.

Fifth plea in law: infringement of the applicant's rights of defence

The contested decision infringes the applicant's rights of defence which are laid down in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 48(2) of the Charter of Fundamental Rights of the European Union in so far as it requires the applicant's active involvement in the evaluation and analysis of company data, which are tasks falling within the Commission's duty to adduce evidence.

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

13.8.2011

Official Journal of the European Union

C 238/29

Action brought on 14 June 2011 — Leopardi Dittajuti v OHIM — Llopart Vilarós (CONTE LEOPARDI DITTAJUTI)

(Case T-303/11)

2011/C 238/50

Language in which the application was lodged: English

Parties

Applicant: Piervittorio Francesco Leopardi Dittajuti (Numana, Italy) (represented by: D. De Simone, D. Demarinis, and G. Orsoni, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pedro Llopart Vilarós (Sant Sadurní D'Anoia, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1437/2010-2, and consequently require the Office to take the necessary measures to comply with the given judgment; and

—	Order the defendant to pay the costs of all instances of proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CONTE LEOPARDI DITTAJUTI’, for goods and services in classes 33, 35, 40, and 43 — Community trade mark application No 6428338

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 2073540 of the figurative mark ‘Leopardi’, for goods in class 33

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

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

Pleas in law: Misinterpretation of article 60 of Council Regulation No 207/2009, of Rules 49(1), 20(7)(c) of Commission Regulation (EC) No 2868/95, applicable to the appeal proceedings pursuant to Rule 50(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal: (i) incorrectly deemed not to grant a suspension of the proceedings and postponing the deadline as jointly requested by the parties; (ii) incorrectly took into account the parties’ joint request only after the lapse of the deadline of submission of the statement of grounds, thus factually keeping the concerned party from submitting the same within the due date and causing the time-limit to expire; and (iii) infringement of the procedural requirements by the Board of Appeal, as it did not take into account the grounds of appeal, although the relevant statements had been submitted beyond the time-limit, also in breach of the general principle of procedural economy and of preservation of the validity of case-file records.

13.8.2011

Official Journal of the European Union

C 238/29

Action brought on 10 June 2011 — Schwenk Zement v Commission

(Case T-306/11)

2011/C 238/51

Language of the case: German

Parties

Applicant: Schwenk Zement KG (Ulm, Germany) (represented by: M. Raible, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul Commission Decision C(2011) 2367 final of 30 March 2011 (Case COMP/39520 — Cement and related products);

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

Pleas in law and main arguments

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

First plea in law: the form of the decision is disproportionate

The contested decision infringes the principle of proportionality since it constitutes the first measure of investigation adopted in relation to the applicant and the applicant was willing to provide information.

—

It is true that Council Regulation (EC) No 1/2003 (1) does not provide for a hierarchical relationship between simple requests for information and a decision requiring information. This does not change the fact, however, that the principle of proportionality is to be observed when opting for a measure of investigation.

—

Compared with a decision requiring information pursuant to Article 18(3) of Regulation No 1/2003 a request for information pursuant to Article 18(2) of that regulation is the more lenient option and also constitutes an effective method in relation to undertakings which are willing to provide information.

Second plea in law: infringement of Article 18(3) of Regulation No 1/2003

The contested decision does not meet the requirements of the legal basis in Article 18(3) of Regulation No 1/2003

—	The Commission does not set out any concrete allegations and the information requested largely does not coincide with what it claims to be its allegation.

—	Therefore, the request for information is not necessary for the Commission's investigation. The information requested cannot constitute evidence of an infringement of cartel law.

Third plea in law: the time limit imposed was disproportionate

The two-week time limit within which to answer Question 11 was not sufficient for the applicant.

—	The Commission reduced the time limit for answering question 11 from two months in its draft decision to two weeks in the contested decision without reasoning its decision to do so.

—	It was impossible for the applicant to provide an answer within the two-week time limit. However, the Commission categorically rejected its request for an extension of that time limit.

—	As a result of the breadth of the information requested, the difficulty in compiling the information and the individual situation of the applicant, a longer time limit was strictly necessary for it.

Fourth plea in law: insufficient grounds are given in the contested decision

The grounds for the contested decision are not stated in a proper manner.

—	The contested decision does not set out the allegations made against the applicant. It also fails to state the connection between the information requested and the allegations made.

—	Insufficient grounds are also given for the determination of the time limit in general and for the shortening of the time limit for answering question 11 from two months in its draft decision to two weeks in the contested decision.

5.	Fifth plea in law: the applicant's rights of defence have been infringed As a result of the time pressure exerted by the Commission, the applicant's rights of defence were infringed, in particular its right not to incriminate itself.

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

13.8.2011

Official Journal of the European Union

C 238/30

Action brought on 13 June 2011 — Eurallumina v Commission

(Case T-308/11)

2011/C 238/52

Language of the case: Italian

Parties

Applicant: Eurallumina SpA (Portoscuso, Italy) (represented by V. Leone, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul in its entirety the contested decision as it relates to Eurallumina; or

in the alternative,

—	annul Article 2 of the contested decision, in relation to the measure adopted pursuant to the decree of 2004 and, in consequence, Article 3 of the contested decision in so far as it orders recovery from Eurallumina; or

—	annul Article 3 of the contested decision, in so far as it orders recovery from Eurallumina; and

in any case

—	order the Commission to pay the costs.

Pleas in law and main arguments

The application seeks annulment of the contested decision which:

classifies as new, unlawful, incompatible aid the measure contained in Article 1 of Decree of the President of the Council of Ministers No 14042 of 6 February 2004 (‘the decree of 2004’) and in the decisions adopted by the Autorità per l’Energia Elettrica e il Gas (‘the AEEG’) in order to give effect to that provision (together ‘the measure adopted pursuant to the decree of 2004’), ordering its recovery;

classifies as new, incompatible aid the measure notified by Italy, contained in Article 11(12) of Law No 80 of 14 May 2005 converting into law Decree-Law No 35 of 14 March 2005 (‘Law No 80/2005’), and in the decision adopted by the AEEG for the application of that measure (together ‘the measure adopted pursuant to Law No 80/2005’).

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

First plea in law, alleging breach of the general principle of proper administration

The applicant maintains that the Commission erred in appraising together the two measures mentioned above, which called for separate appraisal having regard to their objective differences in respect of legal basis, addressees and the compensation mechanism provided. That led to an overlapping of the arguments used by the Commission, which made it harder for the applicant to defend itself.

Second plea, alleging infringement and misapplication of Article 107(1) TFEU as regards the definition of State aid

The applicant maintains that the Commission erred in considering the two measures to be State aid, for neither case satisfies the requirements of advantage [that would not have been obtained] in ordinary market conditions, that threatens to distort competition, or of effect on trade between Member States. In particular:

as regards the measure adopted pursuant to the decree of 2004, this confers no advantage for it is merely a subjective extension of the measure earlier considered by the Commission not to be aid in the ‘Alumix’ (1) case, in which the Commission decided that the electricity tariff applied to Alumix did not constitute an advantage for the latter. Furthermore, the measure adopted pursuant to the decree of 2004 is incapable of affecting intra-Community trade — so far as Eurallumina is concerned — because the alumina market is in deficit in the EU and any reduction of its activities would not be offset by an increase in exports by operators in other Member States, which are already working at full capacity;

as regards the measure adopted pursuant to Law No 80/2005, this confers no advantage in relation to ordinary market conditions for, given the anomalies of the power market in Italy and, above all, in Sardinia — where the price of electricity is kept artificially high because there is no interconnection with the continent — the reference to the price reached at European level on stock markets constitutes a valid reference in order to regard the tariff applied as a ‘market’ tariff, for the activities of the beneficiaries. The considerations valid with regard to the measure adopted pursuant to the decree of 2004 hold good with regard to intra-Community trade too.

Third plea, alleging infringement and misapplication of Article 107(3) TFEU as regards the derogation for aid for regional purposes provided for in subparagraph (a)

The applicant maintains that the Commission erred in finding the two measures not compatible as being aid for regional purposes. In particular, the following aspects:

there exists regional disadvantage, due to Sardinia’s not being interconnected with the continent, which renders disadvantageous the supplying of power to the beneficiaries, and due to the fact that the greatest consumers of power form the backbone of the island’s productive structure, to a large extent determining its levels of employment;

the proportionality and the appropriateness of the measures in question to make up for that disadvantage, as provisional measures designed to prevent the beneficiaries from moving away, pending the overcoming of the situation of structural disadvantage, by means of initiatives already begun and — now — brought to a conclusion by the Italian State, apt to create sufficient interconnection capacity for Sardinia and by means of specific efficiency investments that the beneficiaries have undertaken to continue;

the two measures are temporary in nature and decreasing de facto.

Fourth plea, alleging breach of essential procedural requirements — want of reasoning

The applicant maintains that the Commission failed to give sufficient reasons for its decision, in particular with regard to:

the difference between the measure adopted pursuant to the decree of 2004 and the measure at issue in the ‘Alumix’ decision;

the existence of the factor of possible distortion of competition and effect on trade between Member States;

the proportionality of the measure adopted pursuant to the decree of 2004.

Fifth plea, alleging error of assessment in examining the circumstances that warrant legitimate expectations

The applicant maintains that the Commission erred in determining that there were no circumstances to warrant legitimate expectations on Eurallumina’s part as to the non-aid character of the measure adopted pursuant to the decree of 2004.

(1) Published in OJ C 288/4 of 1.10.1996, p. 4.

13.8.2011

Official Journal of the European Union

C 238/32

Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

(Case T-312/11)

2011/C 238/53

Language in which the application was lodged: German

Parties

Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

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

Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)

Form of order sought

The applicant claims that the Court should:

—	Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);

—	Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BYK-Cera BV

Community trade mark concerned: the word mark ‘CERATIX’ for goods in Class 1 — application No 6 358 832

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

Mark or sign cited in opposition: the national word mark ‘CERATOFIX’ for goods in Class 1

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:

—	Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;

—	Did not take account of promotional measures as ‘genuine use’;

—	Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;

—	Did not examine the evidence of use provided as a whole.

13.8.2011

Official Journal of the European Union

C 238/32

Action brought on 16 June 2011 — Heede v OHIM (Matrix-Energetics)

(Case T-313/11)

2011/C 238/54

Language of the case: German

Parties

Applicant: Günter Heede (Walldorf-Baden, Germany) (represented by R. Utz, lawyer)

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

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2011 in Case R 1848/2010-4;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Matrix-Energetics’ for services in Classes 35, 41 and 44 — application No 8 339 798

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the descriptive character of the mark applied for cannot be determined and the mark applied for has the necessary distinctive character; the Board of Appeal erred in making print-outs from the internet, which dated from after the date of filing of the application for registration, the subject-matter of its decision; and furthermore isolated, illegal instances of use of an originally distinctive (fanciful) description on the part of third parties, which commenced after the date of filing, cannot have a negative influence on the registrability of a Community trade mark.

13.8.2011

Official Journal of the European Union

C 238/32

Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

(Case T-314/11)

2011/C 238/55

Language in which the application was lodged: English

Parties

Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 April 2011 in case R 354/2009-2; and

—	Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘FORTRESS’, claiming the colours red, black and white, for services in classes 35, 36 and 42 — Community trade mark registration No 3398451

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009. It was also based on United Kingdom non registered trade marks ‘FORTRESS’, ‘FORTRESS INVESTMENTS’, and ‘FORTRESS INVESTMENT GROUP’, used in the course of trade.

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

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal failed properly to analyse the question of goodwill under the UK law of passing off and failed properly to assess the risk of misrepresentation and consequent damage.

13.8.2011

Official Journal of the European Union

C 238/33

Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

(Case T-315/11)

2011/C 238/56

Language in which the application was lodged: English

Parties

Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 March 2011 in case R 355/2009-2; and

—	Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘FORTRESS’, for services in classes 35, 36 and 42 — Community trade mark registration No 2095784

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

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

Decision of the Board of Appeal: Annulled the contested decision

13.8.2011

Official Journal of the European Union

C 238/33

Action brought on 21 June 2011 — Morelli v OHIM — Associazione Nazionale Circolo del Popolo della Libertà (PARTITO DELLA LIBERTÀ)

(Case T-321/11)

2011/C 238/57

Language in which the application was lodged: Italian

Parties

Applicant: Raffaello Morelli (Livorno, Italy) (represented by: G. Frenelli, lawyer)

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

Other party to the proceedings before the Board of Appeal: Associazione Nazionale Circolo del Popolo della Libertà (Milan, Italy)

Form of order sought

The applicant claims that the Court should:

—	annul the First Board of Appeal’s decision of 17 March 2011 and that of the Opposition Division of 14 May 2010;

—	declare that the applicant’s opposition to the application for registration of a trade mark No 5.890.009 is upheld and refuse the application for that mark;

—	order the Associazione Nazionale Circolo del Popolo della Libertà to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Associazione Nazionale Circolo del Popolo della Libertà

Community trade mark concerned: Word mark ‘PARTITO DELLA LIBERTÀ’ (application for registration No 5.890.009), for goods and services in classes 9, 14, 16, 24, 25, 35, 36, 38, 41, 42 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: Raffaello Morelli

Mark or sign cited in opposition: Domain name ‘partitodellaliberta.it’, assigned by the Autorità proposta all’assegnazione dei domini ‘it’ to Raffaello Morelli on 9 August 2004, which the opponents claimed was used in the course of trade for goods and services in classes 16, 35, 38, 41 and 45

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Misapplication of Article 8(4) of Regulation No 207/2009 on the Community trade mark, incorrect appraisal of ‘use in the course of trade’ with reference to a name used in the sphere of politics and incorrect appraisal of the documents proving business use of the earlier sign.

13.8.2011

Official Journal of the European Union

C 238/34

Action brought on 21 June 2011 — Morelli v OHIM — Brambilla (Partito della Libertà)

(Case T-322/11)

2011/C 238/58

Language in which the application was lodged: Italian

Parties

Applicant: Raffaello Morelli (Livorno, Italy) (represented by: G.Brenelli, lawyer

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

Other party to the proceedings before the Board of Appeal: Michela Vittoria Brambilla (Milan, Italy

Form of order sought

The applicant claims that the Court should:

—	annul the First Board of Appeal’s decision of 17 May 2011 and that of the Opposition Division of 14 May 2010;

—	declare that the applicant’s opposition to the application for registration of a trade mark No 6.203.012 is upheld and refuse the application for that mark;

—	order Ms Michela Vittoria Brambilli to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Michela Vittoria Brambilla.

Community trade mark concerned: Figurative mark containing the word element ‘Partito della Libertà’ (application for registration No 5.6203.012), for goods and services in classes 9, 14, 16, 24, 25, 35, 36, 38, 41, 42 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: Raffaello Morelli

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

13.8.2011

Official Journal of the European Union

C 238/34

Action brought on 15 June 2011 — MasterCard and Others v Commission

(Case T-330/11)

2011/C 238/59

Language of the case: English

Parties

Applicants: MasterCard, Inc. (Wilmington, United States), MasterCard International, Inc. (Wilmington, United States) and MasterCard Europe SPRL (Waterloo, Belgium) (represented by: B. Amory, V. Brophy and S. McInnes, lawyers)

Defendant: European Commission

Form of order sought

—	Declare the application admissible;

—

Annul, in its entirety, the Commission’s negative decision based on the exception in Article 4(3), first subparagraph, 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 (OJ 2001 L 145, p.43);

—	Declare the Commission’s interpretation of Article 8 of Regulation (EC) No 1049/2001 to be unfounded in law; and

—	Order the Commission to pay the costs of the proceedings, including the costs of the applicants.

Pleas in law and main arguments

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

First plea in law, alleging that the Commission breached Articles 4(3) and 8(1) of Regulation (EC) No 1049/2001, as:

—	The Commission has not established that the conditions of Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001 are fulfilled;

—	The elements relied on by the Commission are factually inaccurate; and

—	There is an overriding public interest in the disclosure of the documents provided by EIM Business and Policy Research in the framework of the study on ‘Costs and benefits to merchants of accepting different payment methods’ (COMP/2009/D1/020)

Second plea in law, alleging that the Commission committed an error of law by breaching Article 8(1) and (2) of Regulation (EC) No 1049/2001, as well as Article 2 of the Annex to the Commission’s Decision amending its Rules of Procedure (OJ 2010 L 55, p. 60), as:

—	The Commission illegally reinitiated the timing for review; and

—	The Commission illegally extended the timing for review by 15 working days.

13.8.2011

Official Journal of the European Union

C 238/35

Action brought on 16 June 2011 — Besselink v Council

(Case T-331/11)

2011/C 238/60

Language of the case: English

Parties

Applicant: Leonard Besselink (Utrecht, Netherlands) (represented by: O. Brouwer and J. Blockx, lawyers)

Defendant: Council of the European Union

Form of order sought

—

Annul the decision of the Council of 1 April 2011 refusing to grant full access to document 9689/10 pursuant to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as communicated to the applicant on 7 April 2011 in a letter bearing the reference ‘04/c/01/11’; and

—	Order the Council to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

Pleas in law and main arguments

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

First plea in law, alleging that the contested decision is based on a wrong interpretation and application of Article 4(1)(a), third indent of Regulation (EC) No 1049/2001, which relates to the protection of the public interest with regard to international relations, as:

—	The Council was wrong in not taking into account the constitutional nature of the document which the applicant requests to have access to;

—	The applicant considers that access to document 9689/10 is also warranted on the basis of the freedom of expression contained in Article 11 of the Charter of Fundamental Rights of the European Union;

—	The Council omitted to take into account the specific circumstances and subject matter of the present case; and

—	The Council wrongly referred to hypothetical negative consequences of disclosure for future negotiations to be conducted by the Union.

Second plea in law, alleging that Article 4(6) of Regulation (EC) No 1049/2001 has been wrongly applied, and the principle of proportionality breached, insofar as the Council has failed to consider whether it was appropriate to grant partial access and to confine refusal to the parts of document 9689/10 that were appropriate and strictly necessary.

3.	Third plea in law, alleging that the Council did not fulfill its obligation to state sufficient and adequate reasons for the contested decision.

13.8.2011

Official Journal of the European Union

C 238/38

Corrigendum to the notice in the Official Journal in Case T-242/11

( Official Journal of the European Union C 211 of 16 July 2011, p. 27 )

2011/C 238/67

The notice in the Official Journal concerning Case T-242/11, Kaltenbach & Voigt v OHIM (3D eXam), is to read as follows:

Action brought on 9 May 2011 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

2011/C 238/67

Language of the case: English

Parties

Applicant: Kaltenbach & Voigt GmbH (Biberach an der Riß, Germany) (represented by: M. Graf, lawyer)

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

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 2361/2010-2;

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

Pleas in law and main arguments

Community trade mark concerned: The figurative mark in words “3D eXam” for goods in class 10

Decision of the Examiner: Refused the protection of the international registration to the European Union pursuant to Article 7(1)(b), (c) and Article 7(2) CTMR

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009 and the failure to take into account prior national registrations/grants of protection, as the International registration at issue: (i) is not purely descriptive, and; (ii) exhibits distinctiveness as the relevant public will consider the sign “3D eXam” as an indication of trade origin.

		ISSN 1725-2423 doi:10.3000/17252423.C_2011.238.eng
Official Journal of the European Union		C 238

English edition	Information and Notices	Volume 54 13 August 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 238/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 232, 6.8.2011	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2011/C 238/02	Case C-97/11: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Palermo (Italy) lodged on 28 February 2011 — Amia SpA, in liquidation v Provincia Regionale di Palermo	2

2011/C 238/03	Case C-104/11 P: Appeal brought on 1 March 2011 by Stichting Nederlandse Publieke Omroep, formerly Nederlandse Omroep Stichting (NOS), against the judgment of the General Court (First Chamber, extended composition) delivered on 16 December 2010 in Joined Cases T-231/06 and T-237/06 Kingdom of the Netherlands (T-231/06) and Nederlandse Omroep Stichting (NOS) (T-237/06) v European Commission	2

2011/C 238/04	Case C-105/11 P: Appeal brought on 2 March 2011 by Kingdom of the Netherlands against the judgment of the General Court (First Chamber, extended composition) delivered on 16 December 2010 in Joined Cases T-231/06 and T-237/06 Kingdom of the Netherlands (T-231/06) and Nederlandse Omroep Stichting (NOS) (T-237/06) v European Commission	3

2011/C 238/05	Case C-113/11: Reference for a preliminary ruling from the Tribunale di Ragusa (Italy) lodged on 7 March 2011 — Criminal proceedings against Mohamed Ali Cherni	4

2011/C 238/06	Case C-236/11: Action brought on 17 May 2011 — European Commission v Italian Republic	4

2011/C 238/07	Case C-251/11: Reference for a preliminary ruling from the Tribunal administratif de Rennes (France) lodged on 23 May 2011 — Martial Huet v Université de Bretagne occidentale	4

2011/C 238/08	Case C-257/11: Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 26 May 2011 — SC Gran Via Moinești srl v Agenția Naționala de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București	4

2011/C 238/09	Case C-261/11: Action brought on 26 May 2011 — European Commission v Kingdom of Denmark	5

2011/C 238/10	Case C-276/11 P: Appeal lodged on 3 June 2011 by Viega GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-375/06, Viega GmbH & Co. KG v European Commission	5

2011/C 238/11	Case C-280/11 P: Appeal brought on 6 June 2011 by Council of the European Union against the judgment of the General Court (Third Chamber) delivered on 22 March 2011 in Case T-233/09: Access Info Europe v Council of the European Union	6

2011/C 238/12	Case C-284/11: Reference for a preliminary ruling from the Varhoven Administrativen Sad na Republika Balgaria lodged on 8 June 2011 — EMS Bulgaria TRANSPORT OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite gr. Plovdiv	7

2011/C 238/13	Case C-285/11: Reference for a preliminary ruling from the Varnenski administrativen sad (Bulgaria) lodged on 8 June 2011 — Bonik EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto, Varna	8

2011/C 238/14	Case C-286/11 P: Appeal brought on 7 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-382/06: Tomkins plc v European Commission	9

2011/C 238/15	Case C-287/11 P: Appeal brought on 6 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-385/06: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG v European Commission	10

2011/C 238/16	Case C-297/11: Action brought on 14 June 2011 — European Commission v Hellenic Republic	11

2011/C 238/17	Case C-306/11 P: Appeal brought on 14 June 2011 by XXXLutz Marken GmbH against the judgment of the General Court (Sixth Chamber) delivered on 24 March 2011 in Case T-54/09 XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Natura Selection S.L.	12

2011/C 238/18	Case C-314/11 P: Appeal brought on 24 June 2011 by the European Commission against the order of the General Court (Sixth Chamber) delivered on 13 April 2011 in Case T-320/09 Planet AE v Commission	12

	General Court
2011/C 238/19	Case T-161/04: Judgment of the General Court of 7 July 2011 — Valero Jordana v Commission (Access to documents — Regulation (EC) No 1049/2001 — Reserve list for an open competition and individual decisions concerning the appointment of officials — Refusal of access — Exception concerning privacy and the integrity of the individual — Protection of personal data — Regulation (EC) No 45/2001)	14

2011/C 238/20	Case T-283/08: Judgment of the General Court of 7 July 2011 — Longinidis v Cedefop (Appeal — Staff case — Members of the temporary staff — Contract for an indefinite period — Dismissal — Statement of reasons — Manifest error of assessment — Rights of the defence)	14

2011/C 238/21	Case T-463/08: Judgment of the General Court of 30 June 2011 — Imagion v OHIM (DYNAMIC HD) (Community trade mark — Application for Community word mark DYNAMIC HD — Absolute grounds for refusal — Lack of distinctive character — Lack of distinctive character acquired through usage — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (3) of Regulation (EC) No 207/2009))	15

2011/C 238/22	Case T-258/09: Judgment of the General Court of 6 July 2011 — i-content v OHIM (BETWIN) (Community trade mark — Application for Community word mark BETWIN — Absolute grounds for refusal — Descriptive nature — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Duty to state reasons — Equal treatment — Article 49 EC)	15

2011/C 238/23	Case T-318/09: Judgment of the General Court of 6 July 2011 — Audi and Volkswagen v OHIM (TDI) (Community trade mark — Application for the Community word mark TDI — Absolute ground for refusal — Descriptive character — No distinctive character acquired through use — Article 7(1)(c) and 7(3) of Regulation (EC) No 207/2009 — Articles 75 and 76(1) of Regulation No 207/2009)	15

2011/C 238/24	Case T-235/10: Judgment of the General Court of 6 July 2011 — Timehouse v OHIM (Shape of a watch with jagged edges) (Community trade mark — Application for a three-dimensional mark — Shape of a watch with jagged edges — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)	16

2011/C 238/25	Case T-343/09: Order of the General Court of 27 June 2011 — Amecke Fruchtsaft v OHIM — Uhse (69 Sex up) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)	16

2011/C 238/26	Case T-409/09: Order of the General Court of 22 June 2011 — Evropaïki Dynamiki v Commission (Non-contractual liability — Public service contracts — Rejection of a tenderer’s bid — Annulment of the decision by a judgment of the General Court — Limitation period — Time-limits on account of distance — Action in part inadmissible and in part manifestly unfounded in law)	16

2011/C 238/27	Case T-452/09 P: Order of the General Court of 21 June 2011 — Rosenbaum v Commission (Appeal — Civil service — Officials — Classification in grade at the time of recruitment — Taking account of the professional experience of the person concerned — Article 31 of the Staff Regulations — Obligation to state reasons)	16

2011/C 238/28	Case T-12/10 P: Order of the General Court of 21 June 2011 — Marcuccio v Commission (Appeal — Civil service — Officials — Reimbursement of expenses — Note of the Commission informing the applicant of its intention to make a deduction from his invalidity allowance — Lack of any measure adversely affecting the appellant — Appeal in part manifestly inadmissible and in part manifestly unfounded)	17

2011/C 238/29	Case T-125/10: Order of the General Court of 27 June 2011 — Amecke Fruchtsaft v OHIM — Uhse (69 Sex up) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)	17

2011/C 238/30	Case T-256/10 P: Order of the General Court of 20 June 2011 — Marcuccio v Commission (Appeal — Civil Service — Officials — Removal of personal effects — Implied and express rejection of the appellant’s requests — Duty to state reasons — Appeal in part manifestly inadmissible and in part manifestly unfounded)	17

2011/C 238/31	Case T-160/10: Action brought on 19 April 2011 — J v Parliament	18

2011/C 238/32	Case T-231/11: Action brought on 2 May 2011 — Fraas v OHIM (Dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern)	18

2011/C 238/33	Case T-247/11: Action brought on 13 May 2011 — FairWild Foundation v OHIM — Wild (FAIRWILD)	18

2011/C 238/34	Case T-263/11: Action brought on 23 May 2011 — Bopp v OHIM (Octagon with green sides)	19

2011/C 238/35	Case T-277/11: Action brought on 30 May 2011 — Hotel Reservation Service Robert Ragge v OHIM — Promotora Imperial (iHotel)	19

2011/C 238/36	Case T-280/11: Action brought on 31 May 2011 — Ewald v OHIM — Kin Cosmetics (Keen)	20

2011/C 238/37	Case T-281/11 P: Appeal brought on 3 June 2011 by Diego Canga Fano against the judgment of the Civil Service Tribunal of 24 March 2011 in Case F-104/09, Canga Fano v Council	20

2011/C 238/38	Case T-285/11: Action brought on 6 June 2011 — Gooré v Council	21

2011/C 238/39	Case T-287/11: Action brought on 6 June 2011 — Heitkamp BauHolding v Commission	21

2011/C 238/40	Case T-289/11: Action brought on 7 June 2011 — Deutsche Bahn a.o. v Commission	22

2011/C 238/41	Case T-290/11: Action brought on 7 June 2011 — Deutsche Bahn and Others v Commission	22

2011/C 238/42	Case T-292/11: Action brought on 9 June 2011 — Cemex and Others v Commission	23

2011/C 238/43	Case T-293/11: Action brought on 9 June 2011 — Holcim (Deutschland) and Holcim v Commission	24

2011/C 238/44	Case T-294/11: Action brought on 9 June 2011 — Hellenic Republic v Commission	25

2011/C 238/45	Case T-295/11: Action brought on 9 June 2011 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)	26

2011/C 238/46	Case T-296/11: Action brought on 8 June 2011 — Cementos Portland Valderrivas v Commission	26

2011/C 238/47	Case T-298/11: Action brought on 31 May 2011 — Ghost Brand v OHIM — Procter & Gamble International Operations (GHOST)	27

2011/C 238/48	Case T-300/11: Action brought on 10 June 2011 — Otto v OHIM — Nalsani (TOTTO)	27

2011/C 238/49	Case T-302/11: Action brought on 10 June 2011 — HeidelbergCement v Commission	28

2011/C 238/50	Case T-303/11: Action brought on 14 June 2011 — Leopardi Dittajuti v OHIM — Llopart Vilarós (CONTE LEOPARDI DITTAJUTI)	29

2011/C 238/51	Case T-306/11: Action brought on 10 June 2011 — Schwenk Zement v Commission	29

2011/C 238/52	Case T-308/11: Action brought on 13 June 2011 — Eurallumina v Commission	30

2011/C 238/53	Case T-312/11: Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)	32

2011/C 238/54	Case T-313/11: Action brought on 16 June 2011 — Heede v OHIM (Matrix-Energetics)	32

2011/C 238/55	Case T-314/11: Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)	32

2011/C 238/56	Case T-315/11: Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)	33

2011/C 238/57	Case T-321/11: Action brought on 21 June 2011 — Morelli v OHIM — Associazione Nazionale Circolo del Popolo della Libertà (PARTITO DELLA LIBERTÀ)	33

2011/C 238/58	Case T-322/11: Action brought on 21 June 2011 — Morelli v OHIM — Brambilla (Partito della Libertà)	34

2011/C 238/59	Case T-330/11: Action brought on 15 June 2011 — MasterCard and Others v Commission	34

2011/C 238/60	Case T-331/11: Action brought on 16 June 2011 — Besselink v Council	35

2011/C 238/61	Case T-522/09: Order of the General Court of 10 June 2011 — Gemmi Furs v OHIM — Lemmi-Fashion (GEMMI)	35

2011/C 238/62	Case T-484/10: Order of the General Court of 20 June 2011 — Gas Natural Fenosa SDG v Commission	36

2011/C 238/63	Case T-486/10: Order of the General Court of 20 June 2011 — Iberdrola v Commission	36

2011/C 238/64	Case T-490/10: Order of the General Court of 20 June 2011 — Endesa and Endesa Generación v Commission	36

2011/C 238/65	Case T-14/11: Order of the General Court of 14 June 2011 — Timab Industries and CFPR v Commission	36

	European Union Civil Service Tribunal
2011/C 238/66	Case F-14/11: Action brought on 17 February 2011 — Strohm v Commission	37

	Corrigenda
2011/C 238/67	Corrigendum to the notice in the Official Journal in Case T-242/11 (OJ C 211, 16.7.2011, p. 27)	38