ISSN 1977-091X

doi:10.3000/1977091X.C_2012.032.eng

Official Journal

of the European Union

C 32
European flag  

English edition

Information and Notices

Volume 55
4 February 2012

Notice No

Contents

page

 

IV   Notices

 

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

 

Court of Justice of the European Union

2012/C 032/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 25, 28.1.2012

1

 

V   Announcements

 

COURT PROCEEDINGS

 

Court of Justice

2012/C 032/02

Case C-250/08: Judgment of the Court (First Chamber) of 1 December 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Free movement of persons — Purchase of immovable property intended as a new principal residence — Calculation of a tax advantage — Registration duties — Cohesion of the tax system)

2

2012/C 032/03

Case C-371/08: Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Nural Ziebell, formerly Nural Örnek v Land Baden-Württemberg (EEC-Turkey Association Agreement — Freedom of movement for workers — Second indent of first paragraph of Article 7 and Article 14(1) of Decision No 1/80 of the Association Council — Directives 64/221/EEC, 2003/109/EC and 2004/38/EC — Right of residence of a Turkish national born in the territory of a Member State and having resided there for more than 10 years without interruption as the child of a Turkish worker — Convictions for criminal offences — Lawfulness of an expulsion decision — Conditions)

2

2012/C 032/04

Case C-157/09: Judgment of the Court (Sixth Chamber) of 1 December 2011 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Notaries — Nationality requirement — Article 45 EC — Connection with the exercise of official authority)

3

2012/C 032/05

Case C-253/09: Judgment of the Court (First Chamber) of 1 December 2011 — Commission v Republic of Hungary (Failure of a Member State to fulfil obligations — Freedom of movement for persons — Freedom of establishment — Purchase of property for use as a new principal residence — Establishing the basis of assessment for the tax levied on the purchase of real property — Deduction of the value of the residence sold from the value of the residence purchased — Exclusion of that deduction if the property sold is not situated within the national territory)

3

2012/C 032/06

Case C-272/09 P: Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Market for copper industrial tubes — Fines — Size of the market, duration of the infringement and cooperation capable of being taken into consideration — Effective judicial remedy)

4

2012/C 032/07

Joined Cases C-446/09 and C-495/09: Judgment of the Court (First Chamber) of 1 December 2011 (references for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division) — Belgium, United Kingdom) — Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs (C-495/09) (Common commercial policy — Combating the entry into the European Union of counterfeit and pirated goods — Regulations (EC) No 3295/94 and No 1383/2003 — Customs warehousing and external transit of goods from non-member States which constitute imitations or copies of goods protected in the European Union by intellectual property rights — Action by the authorities of the Member States — Conditions)

4

2012/C 032/08

Case C-79/10: Judgment of the Court (Fourth Chamber) of 1 December 2011 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Systeme Helmholz GmbH v Hauptzollamt Nürnberg (Directive 2003/96/EC — Taxation of energy products and electricity — Article 14(1)(b) — Exemption of energy products used as fuel for the purpose of air navigation — Use of an aircraft for other than commercial purposes — Scope)

5

2012/C 032/09

Case C-81/10 P: Judgment of the Court (Third Chamber) of 8 December 2011 — France Télécom v European Commission, French Republic (Appeal — State aid — France Télécom’s business tax regime — Concept of aid — Legitimate expectations — Limitation period — Obligation to state reasons — Principle of legal certainty)

6

2012/C 032/10

Case C-125/10: Judgment of the Court (Second Chamber) of 8 December 2011 (reference for a preliminary ruling from the Bundespatentgericht — Germany) — Merck Sharp & Dohme Corporation (formerly Merck & Co.) v Deutsches Patent- und Markenamt (Intellectual and industrial property — Patents — Regulation (EEC) No 1768/92 — Article 13 — Supplementary protection certificate for medicinal products — Possibility of granting that certificate where the period that has elapsed between the date of the lodging of the basic patent application and the first marketing authorisation in the European Union is less than five years — Regulation (EC) No 1901/2006 — Article 36 — Extension of the duration of the supplementary protection certificate)

6

2012/C 032/11

Case C-145/10: Judgment of the Court (Third Chamber) of 1 December 2011 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Jurisdiction in civil matters — Regulation (EC) No 44/2001 — Article 6(1) — More than one defendant — Directive 93/98/EEC — Article 6 — Protection of photographs — Directive 2001/29/EC — Article 2 — Reproduction — Use of a portrait photograph as a template to establish a photo-fit — Article 5(3)(d) — Exceptions and limitations as regards quotations — Article 5(3)(e) — Exceptions and limitations for the purposes of public security — Article 5(5))

7

2012/C 032/12

Case C-157/10: Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Banco Bilbao Vizcaya Argentaria SA v Administración General del Estado (Free movement of capital — Corporation tax — Convention for the avoidance of double taxation — Prohibition of deducting tax due but not recovered in another Member State)

8

2012/C 032/13

Case C-275/10: Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Residex Capital IV CV v Gemeente Rotterdam (Article 88(3) EC — State aid — Aid granted in the form of a guarantee to a lender for the purpose of enabling the latter to grant a loan to a borrower — Infringement of procedural rules — Obligation to recover — Nullity — Powers of the national court)

8

2012/C 032/14

Case C-371/10: Judgment of the Court (Grand Chamber) of 29 November 2011 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam (Transfer of a company’s place of effective management to a Member State other than that in which it is incorporated — Freedom of establishment — Article 49 TFEU — Taxation of unrealised capital gains relating to the assets of a company transferring its place of management between Member States — Determination of the amount of tax at the time of the transfer of the place of management — Immediate recovery of the tax — Proportionality)

9

2012/C 032/15

Case C-386/10 P: Judgment of the Court (Second Chamber) of 8 December 2011 — Chalkor AE Epexergasias Metallon v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Market for copper plumbing tubes — Fines — Size of the market, duration of the infringement and cooperation capable of being taken into consideration — Effective judicial remedy)

9

2012/C 032/16

Case C-389/10 P: Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Market for copper plumbing tubes — Fines — Size of the market, duration of the infringement and cooperation capable of being taken into consideration — Effective judicial remedy)

10

2012/C 032/17

Case C-442/10: Judgment of the Court (Fourth Chamber) of 1 December 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom) — Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited (Compulsory insurance against civil liability in respect of the use of motor vehicles — Directive 84/5/EEC — Article 1(4) and Article 2(1) — Third parties victims of an accident — Express or implied authorisation to drive — Directive 90/232/EEC — First subparagraph of Article 1 — Directive 2009/103/EC — Articles 10, 12(1) and 13(1) — Victim of a road traffic accident who was a passenger in a vehicle in respect of which he was insured to drive — Vehicle driven by a person not insured under the insurance policy — Insured victim not deprived of insurance cover)

10

2012/C 032/18

Case C-492/10: Judgment of the Court (First Chamber) of 1 December 2011 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Auβenstelle Linz — Austria) — Immobilien Linz GmbH & Co. KG v Finanzamt Freistadt Rohrbach Urfahr (Taxation — Directive 69/335/EEC — Indirect taxes — Raising of capital — Article 4(2)(b) — Transactions subject to capital duty — Increase in the assets of a company — Contribution made by a member — Absorption of losses by virtue of an undertaking given before the losses were sustained)

11

2012/C 032/19

Case C-515/10: Judgment of the Court (Eighth Chamber) of 1 December 2011 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 1999/31/EC — Decision 2003/33/EC — National legislation — Landfill for inert waste — Acceptance of asbestos- cement waste)

11

2012/C 032/20

Case C-329/11: Judgment of the Court (Grand Chamber) of 6 December 2011 (reference for a preliminary ruling from the Cour d’appel de Paris (France)) — Alexandre Achughbabian v Préfet du Val-de-Marne (Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation making provision, in the event of illegal staying, for a sentence of imprisonment and a fine)

12

2012/C 032/21

Joined Cases C-448/10 P to C-450/10 P: Order of the Court of 6 October 2011 — ThyssenKrupp Acciai Speciali Terni SpA (C-448/10 P), Cementir Italia Srl (C-449/10 P), Nuova Terni Industrie Chimiche SpA (C-450/10 P) v European Commission (Appeal — Compensation for expropriation on grounds of public interest — Temporal extension of a preferential tariff for the supply of electricity — Decision declaring the aid incompatible with the common market and ordering its recovery — Concept of advantage — Principle of the protection of legitimate expectations — Interpretation of national law — Distortion — Concept — Appeal manifestly inadmissible and manifestly unfounded)

12

2012/C 032/22

Case C-515/11: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 3 October 2011 — Deutsche Umwelthilfe e.V. v Federal Republic of Germany

13

2012/C 032/23

Case C-559/11: Reference for a preliminary ruling from the Rechtbank van Koophandel te Antwerpen (Belgium) lodged on 7 November 2011 — Pelckmans Turnhout NV v Walter Van Gastel Balen NV and Others

13

2012/C 032/24

Case C-574/11: Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany), lodged on 16 November 2011 — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd.

13

2012/C 032/25

Case C-577/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 21 November 2011 — DKV Belgium v Association belge des consommateurs test-achats ASBL

14

2012/C 032/26

Case C-579/11: Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 22 November 2011 — Grande Área Metropolitana do Porto (GAMP) v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território and Others

14

2012/C 032/27

Case C-594/11: Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 25 November 2011 — Christoph Becker v Société Air France SA

15

2012/C 032/28

Case C-604/11: Reference for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid (Spain) lodged on 28 November 2011 — Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L. v Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.

15

2012/C 032/29

Case C-613/11: Action brought on 30 November 2011 — European Commission v Italian Republic

16

 

General Court

2012/C 032/30

Case T-291/04: Judgment of the General Court of 16 December 2011 — Enviro Tech Europe Ltd and Enviro Tech International v Commission (Environment and consumer protection — Classification, packaging and labelling of n-propyl bromide as a dangerous substance — Directive 2004/73/EC — Directive 67/548/EEC — Regulation (EC) No 1272/2008 — Action for annulment — Late request to adapt claims — Legal interest in bringing proceedings — Lack of individual concern — Inadmissibility — Non-contractual liability — Judgment of the Court of Justice concerning the validity of Directive 2004/73 — Same subject-matter)

17

2012/C 032/31

Case T-377/07: Judgment of the General Court of 13 December 2011 — Evropaïki Dynamiki v Commission (Public service contracts — Tendering procedure — Supply of IT services relating to content interoperability technologies for European eGovernment services — Rejection of a tender — Manifest error of assessment — Obligation to state reasons — Misuse of powers — Non-contractual liability)

17

2012/C 032/32

Case T-232/08: Judgment of the General Court of 15 December 2011 — Luxembourg v Commission (EAGGF — Guarantee Section — Expenses excluded from Community financing — Rural development measures — Less favoured areas and agroenvironment — National systems for management, monitoring and sanctions — Flat-rate financial correction)

18

2012/C 032/33

Case T-244/08: Judgment of the General Court of 13 December 2011 — Konsum Nord v Commission (State aid — Land sale price — Decision declaring the aid incompatible with the common market and ordering its recovery — Private investor test — Determination of market price)

18

2012/C 032/34

Case T-437/08: Judgment of the General Court of 15 December 2011 — CDC Hydrogene Peroxide v Commission (Access to documents — Regulation (EC) No 1049/2001 — Statement of contents of the administrative file relating to a cartel proceeding — Refusal of access — Exception concerning the protection of the commercial interests of a third party — Exception relating to protection of the purpose of inspections, investigations and audits)

18

2012/C 032/35

Case T-52/09: Judgment of the General Court of 14 December 2011 — Nycomed Danmark v EMA (Medicinal products for human use — Authorisation to place a medicinal product on the market — Regulation (EC) No 1901/2006 — Application for a waiver from the obligation to submit a paediatric investigation plan — Rejection by the EMA — Misuse of powers)

19

2012/C 032/36

Case T-61/09: Judgment of the General Court of 13 December 2011 — Meica v OHIM — Bösinger Fleischwaren (Schinken King) (Community trade mark — Opposition proceedings — Application for Community word mark Schinken King — Earlier national word mark King — Earlier national and Community word marks Curry King — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Duty to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

19

2012/C 032/37

Case T-62/09: Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK) (Community trade mark — Opposition proceedings — Application for Community word mark PROTI SNACK — Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER — Late submission of documents — Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) — Concept of a provision to the contrary — Rule 20(1) of Regulation (EC) No 2868/95 — Rule 50(1) of Regulation No 2868/95)

20

2012/C 032/38

Case T-109/09: Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Valfleuri Pâtes alimentaires (PROTIVITAL) (Community trade mark — Opposition proceedings — Application for Community word mark PROTIVITAL — Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER — Late submission of documents — Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) — Concept of a provision to the contrary — Rule 20(1) of Regulation (EC) No 2868/95 — Rule 50(1) of Regulation No 2868/95)

20

2012/C 032/39

Case T-152/09: Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Valfleuri Pâtes alimentaires (PROTIACTIVE) (Community trade mark — Opposition proceedings — Application for Community word mark PROTIACTIVE — Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER — Late submission of documents — Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) — Concept of a provision to the contrary — Rule 20(1) of Regulation (EC) No 2868/95 — Rule 50(1) of Regulation No 2868/95)

21

2012/C 032/40

Case T-377/09: Judgment of the General Court of 15 December 2011 — Mövenpick v OHIM (PASSIONATELY SWISS) (Community trade mark — Application for Community word mark PASSIONATELY SWISS — Absolute grounds for refusal — Geographical indication of origin — Lack of distinctive character)

21

2012/C 032/41

Case T-423/09: Judgment of the General Court of 16 December 2011 — Dashiqiao Sanqiang Refractory Materials v Council (Dumping — Imports of certain magnesia bricks originating in the People’s Republic of China — Regulation terminating an interim review — Comparison between the normal value and the export price — Taking into account the value added tax of the country of origin — Application of a different methodology to that used in the initial investigation — Change in circumstances — Articles 2(10)(b) and 11(9) of Regulation (EC) No 384/96 (now Articles 2(10)(b) and 11(9) of Regulation (EC) No 1225/2009)

21

2012/C 032/42

Case T-424/09: Judgment of the General Court of 13 December 2011 — Goodyear Dunlop Tyres UK v OHIM — Sportfive (QUALIFIER) (Community trade mark — Opposition proceedings — Application for Community word mark QUALIFIER — Earlier Community word mark Qualifiers 2006 — Refusal to register — Relative ground for refusal — Likelihood of confusion — article 8(1)(b) of Regulation (EC) No 207/2009)

22

2012/C 032/43

Case T-504/09: Judgment of the General Court of 14 December 2011 — Völkl v OHIM — Marker Völkl (VÖLKL) (Community trade mark — Opposition proceedings — Application for Community word mark VÖLKL — Earlier international word mark VÖLKL — Relative ground for refusal — Likelihood of confusion — Refusal in part of registration — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation No 207/2009 and Rule 22(3) of Regulation (EC) No 2868/95 — Competence of the Board of Appeal in the case of an appeal limited to part of the goods or services covered by the application for registration — Article 64(1) of Regulation No 207/2009 — Application for variation of the decision of the Board of Appeal — Article 65(3) of Regulation No 207/2009)

22

2012/C 032/44

Case T-106/10: Judgment of the General Court of 14 December 2011 — Kingdom of Spain v Commission (EAGGF — Guidance Section — Reduction of financial aid — Community initiative programme Leader+ — Article 4 of Regulation (EC) No 438/2001 — Proportionality)

23

2012/C 032/45

Case T-237/10: Judgment of the General Court of 14 December 2011 — Vuitton Malletier v OHIM — Friis Group International (Representation of a locking device) (Community trade mark — Invalidity proceedings — Distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation (EC) No 207/2009)

23

2012/C 032/46

Case T-361/10 P: Judgment of the General Court of 14 December 2011 — Commission v Pachtitis (Appeal — Civil service — Officials — Recruitment — Notice of competition — Open competition — Non-admission to participation in the written test following the result obtained in the admission tests — Division of powers between EPSO and the competition selection board)

23

2012/C 032/47

Case T-425/10: Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Mixfront) (Community trade mark — Application for Community word mark Mixfront — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

24

2012/C 032/48

Case T-433/10 P: Judgment of the General Court of 14 December 2011 — Allen and Others v Commission (Appeal — Staff employed at the JET joint undertaking — Application of a legal status different from that of members of the temporary staff — Compensation for material damage suffered — Time-limits for instituting proceedings — Late submission — Reasonable period)

24

2012/C 032/49

Case T-488/10: Judgment of the General Court of 16 December 2011 — France v Commission (ERDF — Reduction of financial contribution — Community structural assistance in Martinique — Action for annulment — Public contracts — Directive 93/37/EEC — Concept of direct subsidy — Concept of sports, recreation and leisure facilities — Obligation to state reasons — Principle of proportionality)

24

2012/C 032/50

Case T-531/10: Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Vorfront) (Community trade mark — Application for Community word mark Vorfront — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

25

2012/C 032/51

Case T-563/10 P: Judgment of the General Court of 14 December 2011 — De Luca v Commission (Appeal — Cross-appeal — Staff case — Officials — Appointment to a post in a higher function group following an open competition — Entry into force of the new Staff Regulations — Transitional provisions — Article 12(3) of Annex XIII to the Staff Regulations)

25

2012/C 032/52

Case T-6/11 P: Judgment of the General Court of 14 December 2011 — Commission v Vicente Carbajosa and Others (Appeal — Staff case — Officials — Recruitment — Notice of competition — Open competition — Non-admission to the written test following the result obtained in the admission tests — Distribution of powers between EPSO and the selection board — Principle of the right to be heard)

25

2012/C 032/53

Case T-166/11: Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Infront) (Community trade mark — Application for Community word mark Infront — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

26

2012/C 032/54

Case T-283/11: Action brought on 23 May 2011 — Fon Wireless v OHIM — nfon (nfon)

26

2012/C 032/55

Case T-566/11: Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Coffee service set with grooves)

26

2012/C 032/56

Case T-567/11: Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Soup-plate with grooves)

27

2012/C 032/57

Case T-584/11: Action brought on 15 November 2011 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

27

2012/C 032/58

Case T-589/11: Action brought on 17 November 2011 — Phonebook of the World v OHIM — Seat Pagine Gialle (PAGINE GIALLE)

28

2012/C 032/59

Case T-591/11: Action brought on 15 November 2011 — Przedsiębiorstwo Handlowe Medox Lepiarz Lepiarz v OHIM — Henkel (SUPER GLUE)

29

2012/C 032/60

Case T-598/11: Action brought on 28 November 2011 — MPDV Mikrolab v OHIM (Lean Performance Index)

29

2012/C 032/61

Case T-599/11: Action brought on 25 November 2011 — Eni v OHIM — EMI (IP) (ENI)

29

2012/C 032/62

Case T-600/11: Action brought on 25 November 2011 — Schuhhaus Dielmann v OHIM — Carrera (Carrera panamericana)

30

2012/C 032/63

Case T-602/11: Action brought on 22 November 2011 — Pêra-Grave v OHIM — Fundação De Almeida (QTA S. JOSÉ DE PERAMANCA)

30

2012/C 032/64

Case T-604/11: Action brought on 28 November 2011 — Mega Brands v OHIM — Diset (MAGNEXT)

31

2012/C 032/65

Case T-605/11: Action brought on 29 November 2011 — Novartis v OHIM — Organic (BIOCERT)

31

2012/C 032/66

Case T-606/11: Action brought on 30 November 2011 — Woodman Labs V OHIM — 2 Mas 2 Publicidad Integral (HERO)

32

2012/C 032/67

Case T-608/11: Action brought on 30 November 2011 — Beifa Group v OHIM — Schwan-Stabilo Schwanhäußer (Instruments for writing)

32

2012/C 032/68

Case T-610/11: Action brought on 2 December 2011 — Wagon Automotive Nagold v Commission

33

2012/C 032/69

Case T-611/11: Action brought on 1 December 2011 — Spa Monopole v OHIM — South Pacific Management (Manea Spa)

34

2012/C 032/70

Case T-612/11: Action brought on 2 December 2011 — Treofan Holdings and Treofan Germany v Commission

34

2012/C 032/71

Case T-613/11: Action brought on 5 December 2011 — VMS Deutschland v Commission

35

2012/C 032/72

Case T-615/11: Action brought on 6 December 2011 — Royal Scandinavian Casino Århus AS v Commission

36

2012/C 032/73

Case T-617/11: Action brought on 5 December 2011 — Meyr-Melnhof Karton v OHIM — Stora Enso (SILVAWHITE)

37

2012/C 032/74

Case T-622/11 P: Appeal brought on 2 December 2011 by Francesca Cervelli against the order of the Civil Service Tribunal of 12 September 2011 in Case F-98/10, Cervelli v Commission

37

2012/C 032/75

Case T-623/11: Action brought on 30 November 2011 — PICO Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE)

38

2012/C 032/76

Case T-624/11: Action brought on 30 November 2011 — Yueqing Onesto Electric v OHIM — Ensto (ONESTO)

38

2012/C 032/77

Case T-625/11: Action brought on 2 December 2011 — BSH v OHIM (ecodoor)

39

2012/C 032/78

Case T-631/11: Action brought on 6 December 2011 — Caventa v OHIM — Anson’s Herrenhaus (B BERG)

39

2012/C 032/79

Case T-633/11: Action brought on 8 December 2011 — Guangdong Kito Ceramics and Others v Council

40

2012/C 032/80

Case T-634/11 P: Appeal brought on 9 December 2011 by Mario Paulo da Silva Tenreiro against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-72/10, da Silva Tenreiro v Commission

40

2012/C 032/81

Case T-635/11: Action brought on 9 December 2011 — Regency Entertainment Psychagogiki kai Touristiki v Commission

41

2012/C 032/82

Case T-637/11: Action brought on 15 December 2011 — Euris Consult v Parliament

41

2012/C 032/83

Case T-342/09: Order of the General Court of 2 December 2011 — Bard v OHIM — Braun Melsungen (PERFIX)

42

 

European Union Civil Service Tribunal

2012/C 032/84

Case F-51/08 RENV: Judgment of the Civil Service Tribunal (First Chamber) of 13 December 2011 — Stols v Council (Civil service — Officials — Referral back to the Tribunal after setting aside — Promotion — 2007 promotion exercise — Consideration of comparative merits — Manifest error of assessment — No manifest error — Grounds for the decision — Supererogatory ground — Inoperative plea)

43

2012/C 032/85

Case F-30/10: Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — de Fays v Commission (Civil service — Officials — Social security — Insurance against occupational diseases and accidents — Article 73 of the Staff Regulations — Refusal to recognise the occupational origin of a disease)

43

2012/C 032/86

Case F-9/11: Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — Sabbag Afota v Council (Civil service — Officials — Reports — Promotion — 2010 promotion exercise — No staff report)

43

EN

 

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

4.2.2012   

EN

Official Journal of the European Union

C 32/1

2012/C 32/01

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

OJ C 25, 28.1.2012

Past publications

OJ C 13, 14.1.2012

OJ C 6, 7.1.2012

OJ C 370, 17.12.2011

OJ C 362, 10.12.2011

OJ C 355, 3.12.2011

OJ C 347, 26.11.2011

These texts are available on:

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

V Announcements

COURT PROCEEDINGS

Court of Justice

4.2.2012   

EN

Official Journal of the European Union

C 32/2

Judgment of the Court (First Chamber) of 1 December 2011 — European Commission v Kingdom of Belgium

(Case C-250/08) (1)

(Failure of a Member State to fulfil obligations - Free movement of persons - Purchase of immovable property intended as a new principal residence - Calculation of a tax advantage - Registration duties - Cohesion of the tax system)

2012/C 32/02

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: P. van Nuffel, R. Lyal and W. Roels, acting as Agents)

Defendant: Kingdom of Belgium (represented by: L. Van den Broeck, acting as Agent, and by B. van de Walle de Ghelcke, advocaat)

Intervening party in support of the defendant: Republic of Hungary (represented by: R. Somssich, K. Borvölgyi and M.Z. Fehér, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 18 EC, 43 EC and 56 EC and of Articles 31 EEA and 40 EEA — Calculation of a tax advantage upon purchase of immovable property intended as a new principal place of residence — Registration fees paid upon the purchase of a previous principal place of residence taken into account only if that place of residence was situated in the Flemish Region

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders the European Commission to pay the costs.

(1)  OJ C 223, 30.8.2008.

4.2.2012   

EN

Official Journal of the European Union

C 32/2

Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Nural Ziebell, formerly Nural Örnek v Land Baden-Württemberg

(Case C-371/08) (1)

(EEC-Turkey Association Agreement - Freedom of movement for workers - Second indent of first paragraph of Article 7 and Article 14(1) of Decision No 1/80 of the Association Council - Directives 64/221/EEC, 2003/109/EC and 2004/38/EC - Right of residence of a Turkish national born in the territory of a Member State and having resided there for more than 10 years without interruption as the child of a Turkish worker - Convictions for criminal offences - Lawfulness of an expulsion decision - Conditions)

2012/C 32/03

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Nural Ziebell, formerly Nural Örnek

Defendant: Land Baden-Württemberg

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation of Article 14(1) of Decision No 1/80 of 19 September 1980 of the Association Council on the Development of the Association between the European Economic Community and Turkey — Extension to Turkish nationals of the scope of application of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), authorising expulsion of Union citizens only on imperative grounds of public security — Expulsion decision taken as a result of numerous criminal convictions of a Turkish national who was born in Germany and has resided there for 34 years

Operative part of the judgment

Article 14(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that

—

protection against expulsion conferred by that provision on Turkish nationals does not have the same scope as that conferred on citizens of the Union under Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, with the result that the scheme of protection against expulsion enjoyed by the latter cannot be applied mutatis mutandis to Turkish nationals for the purpose of determining the meaning and scope of Article 14(1) of Decision No 1/80;

—

that provision of Decision No 1/80 does not preclude an expulsion measure based on grounds of public policy from being taken against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of that decision, in so far as the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of the society of the host Member State and that measure is indispensable in order to safeguard that interest. It is for the national court to determine, in the light of all the relevant factors relating to the situation of the Turkish national concerned, whether such a measure is lawfully justified in the main proceedings.

(1)  OJ C 285, 8.11.2008.

4.2.2012   

EN

Official Journal of the European Union

C 32/3

Judgment of the Court (Sixth Chamber) of 1 December 2011 — European Commission v Kingdom of the Netherlands

(Case C-157/09) (1)

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

2012/C 32/04

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: H. Støvlbæk and W. Roels, acting as Agents)

Defendant: Kingdom of the Netherlands (represented by: D.J.M. de Grave and M.A.M de Ree, acting as Agents)

Intervener in support of the defendant: Republic of Slovenia (represented by: T. Mihelič, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 45 EC — Access to and practice of the profession of notary — Nationality requirement — Connection with the exercise of official authority

Operative part of the judgment

The Court:

1.

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

2.

Orders the Kingdom of the Netherlands to pay the costs.

3.

Orders the Slovenian Republic to bear its own costs.

(1)  OJ C 180, 1.8.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/3

Judgment of the Court (First Chamber) of 1 December 2011 — Commission v Republic of Hungary

(Case C-253/09) (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for persons - Freedom of establishment - Purchase of property for use as a new principal residence - Establishing the basis of assessment for the tax levied on the purchase of real property - Deduction of the value of the residence sold from the value of the residence purchased - Exclusion of that deduction if the property sold is not situated within the national territory)

2012/C 32/05

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: R. Lyal and K. Talabér-Ritz, Agents)

Defendant: Republic of Hungary (represented by: R. Somssich and M.Z. Fehér, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement — National legislation on the tax levied on the purchase of real property which, when the basis of assessment for that tax is established, makes the deduction of the value of the residence sold from the value of the residence purchased conditional upon the residence sold being located within the national territory

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders the European Commission to pay the costs.

(1)  OJ C 223, 26.9.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/4

Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission

(Case C-272/09 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Market for copper industrial tubes - Fines - Size of the market, duration of the infringement and cooperation capable of being taken into consideration - Effective judicial remedy)

2012/C 32/06

Language of the case: English

Parties

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

Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and J. Bourke, acting as Agents, C. Thomas, Solicitor)

Re:

Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 6 May 2009 in Case T-127/04 KME Germany and Others v Commission, in which the Court dismissed an action seeking reduction of the fine imposed on the applicants by Commission Decision 2004/421/EC of 16 December 2003, relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/38.240 — Industrial tubes) (OJ 2004 L 125, p. 50) — Price-fixing and market-sharing — Actual impact on the market — Guidelines for calculating the amount of fines

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders KME Germany AG, KME France SAS and KME Italy SpA to pay the costs.

(1)  OJ C 220, 12.9.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/4

Judgment of the Court (First Chamber) of 1 December 2011 (references for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division) — Belgium, United Kingdom) — Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs (C-495/09)

(Joined Cases C-446/09 and C-495/09) (1)

(Common commercial policy - Combating the entry into the European Union of counterfeit and pirated goods - Regulations (EC) No 3295/94 and No 1383/2003 - Customs warehousing and external transit of goods from non-member States which constitute imitations or copies of goods protected in the European Union by intellectual property rights - Action by the authorities of the Member States - Conditions)

2012/C 32/07

Language of the case: Dutch and English

Referring courts

Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division)

Parties to the main proceedings

Applicants: Koninklijke Philips Electronics NV (C-446/09), Nokia Corporation (C-495/09)

Defendants: Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Her Majesty’s Commissioners of Revenue and Customs (C-495/09)

In the presence of: International Trademark Association

Re:

(C-446/09)

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Antwerpen — Interpretation of Article 6(2)(b) of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods (OJ 1994 L 341, p. 8) — Release for free circulation and entry for a suspensive procedure — Applicable law — Goods originating in a non-member country — Infringement of the holder’s intellectual-property rights

(C-495/09)

Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Article 2(1)(a) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2003 L 196, p. 7) — Definition of ‘counterfeit goods’ — Goods bearing a Community trade mark in transit from a non Member State where they were manufactured and intended for the market of another non Member State — ‘Nokia’ mobile telephones

Operative part of the judgment

Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights, as amended by Council Regulation (EC) No 241/1999 of 25 January 1999, and Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights must be interpreted as meaning that:

—

goods coming from a non-member State which are imitations of goods protected in the European Union by a trade mark right or copies of goods protected in the European Union by copyright, a related right or a design cannot be classified as ‘counterfeit goods’ or ‘pirated goods’ within the meaning of those regulations merely on the basis of the fact that they are brought into the customs territory of the European Union under a suspensive procedure;

—

those goods may, on the other hand, infringe the right in question and therefore be classified as ‘counterfeit goods’ or ‘pirated goods’ where it is proven that they are intended to be put on sale in the European Union, such proof being provided, inter alia, where it turns that the goods have been sold to a customer in the European Union or offered for sale or advertised to consumers in the European Union, or where it is apparent from documents or correspondence concerning the goods that their diversion to European Union consumers is envisaged;

—

in order that the authority competent to take a substantive decision may profitably examine whether such proof and the other elements constituting an infringement of the intellectual property right relied upon exist, the customs authority to which an application for action is made must, as soon as there are indications before it giving grounds for suspecting that such an infringement exists, suspend the release of or detain those goods; and

—

those indications may include, inter alia, the fact that the destination of the goods is not declared whereas the suspensive procedure requested requires such a declaration, the lack of precise or reliable information as to the identity or address of the manufacturer or consignor of the goods, a lack of cooperation with the customs authorities or the discovery of documents or correspondence concerning the goods in question suggesting that there is liable to be a diversion of those goods to European Union consumers.

(1)  OJ C 24, 30.1.2010.

OJ C 37, 13.2.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/5

Judgment of the Court (Fourth Chamber) of 1 December 2011 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Systeme Helmholz GmbH v Hauptzollamt Nürnberg

(Case C-79/10) (1)

(Directive 2003/96/EC - Taxation of energy products and electricity - Article 14(1)(b) - Exemption of energy products used as fuel for the purpose of air navigation - Use of an aircraft for other than commercial purposes - Scope)

2012/C 32/08

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Systeme Helmholz GmbH

Defendant: Hauptzollamt Nürnberg

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Articles 11(3), 14(1)(b) and 15(1)(j) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Scope of the exemption from taxation provided for in respect of energy products supplied for use as fuel for the purposes of air navigation — National legislation restricting that exemption to air navigation by air carriers — Flights for business and private purposes made using an aircraft belonging to an undertaking which is not an air carrier

Operative part of the judgment

1.

Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that the tax exemption on fuel used for the purpose of air navigation, provided for under that provision, cannot apply in the case of a company, such as the applicant in the main proceedings, which, in order to develop its business, uses its own aircraft to transport members of its staff to clients or to trade fairs, in so far as that travel is not directly used for the supply, by that company, of air services for consideration.

2.

Article 15(1)(j) of Directive 2003/96 must be interpreted as meaning that the fuel used for the purpose of flights to and from an aircraft maintenance facility does not fall within the scope of that provision.

(1)  OJ C 113, 1.5.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/6

Judgment of the Court (Third Chamber) of 8 December 2011 — France Télécom v European Commission, French Republic

(Case C-81/10 P) (1)

(Appeal - State aid - France Télécom’s business tax regime - Concept of ‘aid’ - Legitimate expectations - Limitation period - Obligation to state reasons - Principle of legal certainty)

2012/C 32/09

Language of the case: French

Parties

Appellant: France Télécom SA (represented by: S. Hautbourg, L. Olza Moreno and L. Godfroid, avocats)

Other parties to the proceedings: European Commission (represented by: E. Gippini Fournier and D. Grespan, acting as Agents), French Republic (represented by: G. de Bergues and J. Gstalter, acting as Agents)

Re:

Appeal brought against the judgments of the Court of First Instance (Third Chamber) of 30 November 2009 in Joined Cases T-427/04 and T-17/05 France and France Télécom v Commission by which the Court dismissed the actions brought by the French Republic and the appellant for annulment of Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France (OJ 2005 L 269, p. 30) — Misapplication of the concepts of ‘State aid’ and ‘advantage’ in connection with France Télécom’s business tax regime for the period 1994 to 2002 — Breach of the principle of legitimate expectations — Limitation period for State aid — Obligation to state reasons and breach of the principle of legal certainty

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders France Télécom SA to pay the costs;

3.

Orders the French Republic to bear its own costs.

(1)  OJ C 148, 5.6.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/6

Judgment of the Court (Second Chamber) of 8 December 2011 (reference for a preliminary ruling from the Bundespatentgericht — Germany) — Merck Sharp & Dohme Corporation (formerly Merck & Co.) v Deutsches Patent- und Markenamt

(Case C-125/10) (1)

(Intellectual and industrial property - Patents - Regulation (EEC) No 1768/92 - Article 13 - Supplementary protection certificate for medicinal products - Possibility of granting that certificate where the period that has elapsed between the date of the lodging of the basic patent application and the first marketing authorisation in the European Union is less than five years - Regulation (EC) No 1901/2006 - Article 36 - Extension of the duration of the supplementary protection certificate)

2012/C 32/10

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: Merck Sharp & Dohme Corp., formerly Merck & Co. Inc.

Defendant: Deutsches Patent- und Markenamt

Re:

Reference for a preliminary ruling — Bundespatentgericht — Interpretation of Article 13(1) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ 2009 L 152, p. 1) — Possibility of granting the certificate if the period of time between the filing of the application for the basic patent and the date of first authorisation for marketing in the Community is shorter than five years

Operative part of the judgment

Article 13 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as amended by Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006, read in conjunction with Article 36 of Regulation No 1901/2006, must be interpreted as meaning that medicinal products can be the object of the grant of a supplementary protection certificate where the period that has elapsed between the date of lodging the basic patent application and the first marketing authorisation in the European Union is less than five years. In such a case, the period of the paediatric extension provided for by the latter regulation starts to run from the date determined by deducting from the patent expiry date the difference between five years and the duration of the period which elapsed between the lodging of the patent application and the grant of the first marketing authorisation.

(1)  OJ C 161, 19.6.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/7

Judgment of the Court (Third Chamber) of 1 December 2011 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG

(Case C-145/10) (1)

(Jurisdiction in civil matters - Regulation (EC) No 44/2001 - Article 6(1) - More than one defendant - Directive 93/98/EEC - Article 6 - Protection of photographs - Directive 2001/29/EC - Article 2 - Reproduction - Use of a portrait photograph as a template to establish a photo-fit - Article 5(3)(d) - Exceptions and limitations as regards quotations - Article 5(3)(e) - Exceptions and limitations for the purposes of public security - Article 5(5))

2012/C 32/11

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Eva-Maria Painer

Defendants: Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG

Re:

Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), of Articles 1(1), 5(3)(d) and (e) and 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Publication of photographs in several periodicals, without the authorisation of the author and without the correct citation — Jurisdiction of a court to judge several actions brought for the same infringement of copyright but against different defendants, and based on legal grounds of two Member States which are identical in substance — Infringement of the copyright justified in the interests of public security

Operative part of the judgment

1.

Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.

2.

Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works.

3.

Article 5(3)(e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in the light of Article 5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

4.

Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright.

5.

Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

(1)  OJ C 148, 5.6.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/8

Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Banco Bilbao Vizcaya Argentaria SA v Administración General del Estado

(Case C-157/10) (1)

(Free movement of capital - Corporation tax - Convention for the avoidance of double taxation - Prohibition of deducting tax due but not recovered in another Member State)

2012/C 32/12

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Banco Bilbao Vizcaya Argentaria SA

Defendant: Administración General del Estado

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 63 and 65 TFEU — Corporation tax — National legislation and convention on double taxation prohibiting the deduction of tax due but not recovered in other Member States for income obtained on their territory

Operative part of the judgment

Article 67 of the EEC Treaty and Article 1 of Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (article repealed by the Treaty of Amsterdam) do not preclude national rules of a Member State, such as those at issue in the main proceedings, which, in the context of corporation tax and within the framework of provisions for the avoidance of double taxation, prohibit the deduction of amounts of tax due in other Member States of the European Union on income subject to corporation tax and obtained in their territory where those amounts, though due, are not paid by virtue of an exemption, a credit or any other tax benefit, in so far as those rules are not discriminatory as compared with the treatment applied to interest obtained in that Member State, it being for the national court to establish whether that is the case.

(1)  OJ C 179, 3.7.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/8

Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Residex Capital IV CV v Gemeente Rotterdam

(Case C-275/10) (1)

(Article 88(3) EC - State aid - Aid granted in the form of a guarantee to a lender for the purpose of enabling the latter to grant a loan to a borrower - Infringement of procedural rules - Obligation to recover - Nullity - Powers of the national court)

2012/C 32/13

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Residex Capital IV CV

Defendant: Gemeente Rotterdam

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — State aid — Interpretation of Art. 108(3) TFEU — Aid granted in the form of a guarantee to a lender, enabling it to grant a loan to a borrower — Infringement of procedural rules — Jurisdiction of the national courts

Operative part of the judgment

The last sentence of Article 88(3) EC must be interpreted as meaning that the national courts have jurisdiction to cancel a guarantee in a situation such as that in the main proceedings, in which unlawful aid was implemented by means of a guarantee provided by a public authority in order to cover a loan granted by a finance company to an undertaking which would not have been able to secure such financing under normal market conditions. When exercising that jurisdiction, those courts are required to ensure that the aid is recovered and, to that end, they can cancel the guarantee, in particular where, in the absence of less onerous procedural measures, that cancellation is such as to lead to or facilitate the restoration of the competitive situation which existed before that guarantee was provided.

(1)  OJ C 246, 11.9.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/9

Judgment of the Court (Grand Chamber) of 29 November 2011 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam

(Case C-371/10) (1)

(Transfer of a company’s place of effective management to a Member State other than that in which it is incorporated - Freedom of establishment - Article 49 TFEU - Taxation of unrealised capital gains relating to the assets of a company transferring its place of management between Member States - Determination of the amount of tax at the time of the transfer of the place of management - Immediate recovery of the tax - Proportionality)

2012/C 32/14

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: National Grid Indus BV

Defendant: Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam

Re:

Reference for a preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 43 EC (now Article 49 TFEU) — National tax legislation providing for immediate taxation on exit for companies transferring their place of management or assets to another Member State

Operative part of the judgment

1.

A company incorporated under the law of a Member State which transfers its place of effective management to another Member State, without that transfer affecting its status of a company of the former Member State, may rely on Article 49 TFEU for the purpose of challenging the lawfulness of a tax imposed on it by the former Member State on the occasion of the transfer of the place of effective management.

2.

Article 49 TFEU must be interpreted as:

—

not precluding legislation of a Member State under which the amount of tax on unrealised capital gains relating to a company’s assets is fixed definitively, without taking account of decreases or increases in value which may occur subsequently, at the time when the company, because of the transfer of its place of effective management to another Member State, ceases to obtain profits taxable in the former Member State; it makes no difference that the unrealised capital gains that are taxed relate to exchange rate gains which cannot be reflected in the host Member State under the tax system in force there;

—

precluding legislation of a Member State which prescribes the immediate recovery of tax on unrealised capital gains relating to assets of a company transferring its place of effective management to another Member State at the very time of that transfer.

(1)  OJ C 328, 4.12.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/9

Judgment of the Court (Second Chamber) of 8 December 2011 — Chalkor AE Epexergasias Metallon v European Commission

(Case C-386/10 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Market for copper plumbing tubes - Fines - Size of the market, duration of the infringement and cooperation capable of being taken into consideration - Effective judicial remedy)

2012/C 32/15

Language of the case: English

Parties

Appellant: Chalkor AE Epexergasias Metallon (represented by: I. Forrester QC)

Other party to the proceedings: European Commission (represented by: E. Grippini Fournier and S. Noë, Agents, B. Doherty, Barrister)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 19 May 2010 in Case T-21/05 Chalkor v Commission by which the Court reduced the fine imposed on the appellant by Commission Decision 2006/485/EC of 3 September 2004 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper Plumbing Tubes) (notified under document number C(2004) 2826), concerning a system for the allocation of production volume and market shares and the establishment of objectives and price increases in the European market for copper plumbing tubes

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders Chalkor AE Epexergasias Metallon to pay the costs.

(1)  OJ C 288, 23.10.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/10

Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission

(Case C-389/10 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Market for copper plumbing tubes - Fines - Size of the market, duration of the infringement and cooperation capable of being taken into consideration - Effective judicial remedy)

2012/C 32/16

Language of the case: English

Parties

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

Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and S. Noë, acting as Agents, C. Thomas, Solicitor)

Re:

Appeal brought against the judgment of the General Court of 19 May 2010 in Case T-25/05 KME Germany and Others v Commission, by which the General Court dismissed an action seeking the reduction of the fine imposed on the applicants by Commission Decision 2006/485/EC of 3 September 2004 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) (notified under No C(2004) 2826), concerning a system of allocation of production volumes and market shares, and the setting of targets and price increases on the European market for copper plumbing tubes

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders KME Germany AG, KME France SAS and KME Italy SpA to pay the costs.

(1)  OJ C 274, 9.10.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/10

Judgment of the Court (Fourth Chamber) of 1 December 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom) — Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited

(Case C-442/10) (1)

(Compulsory insurance against civil liability in respect of the use of motor vehicles - Directive 84/5/EEC - Article 1(4) and Article 2(1) - Third parties victims of an accident - Express or implied authorisation to drive - Directive 90/232/EEC - First subparagraph of Article 1 - Directive 2009/103/EC - Articles 10, 12(1) and 13(1) - Victim of a road traffic accident who was a passenger in a vehicle in respect of which he was insured to drive - Vehicle driven by a person not insured under the insurance policy - Insured victim not deprived of insurance cover)

2012/C 32/17

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicants: Churchill Insurance Company Limited, Tracy Evans

Defendants: Benjamin Wilkinson, Equity Claims Limited

Re:

Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Articles 12(1) and 13(1) of Directive 2009/103/EC of the European Parliament and of the Council of 16th September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11) — Road accident victim who, at the time of the accident, is a passenger in the vehicle which he is insured to drive but which is being driven by an uninsured driver whom the victim had authorised to drive — Provisions of national law excluding the victim from being covered by the insurance

Operative part of the judgment

1.

Article 1, first subparagraph, of the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and Article 2(1) of the Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, must be interpreted as precluding national rules the effect of which is to omit automatically the requirement that the insurer compensate a passenger who is a victim of a road traffic accident when that accident was caused by a driver who was not insured under the insurance policy and when the victim, who was a passenger in the vehicle at the time of the accident, was insured to drive the vehicle himself but who had given permission to the driver to drive it.

2.

The answer to the first question is not different depending on whether the insured victim was aware that the person to whom he gave permission to drive the vehicle was not insured to do so, whether he believed that the driver was insured or whether or not he had turned his mind to that question.

(1)  OJ C 346, 18.12.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/11

Judgment of the Court (First Chamber) of 1 December 2011 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Auβenstelle Linz — Austria) — Immobilien Linz GmbH & Co. KG v Finanzamt Freistadt Rohrbach Urfahr

(Case C-492/10) (1)

(Taxation - Directive 69/335/EEC - Indirect taxes - Raising of capital - Article 4(2)(b) - Transactions subject to capital duty - Increase in the assets of a company - Contribution made by a member - Absorption of losses by virtue of an undertaking given before the losses were sustained)

2012/C 32/18

Language of the case: German

Referring tribunal

Unabhängiger Finanzsenat, Auβenstelle Linz

Parties to the main proceedings

Applicant: Immobilien Linz GmbH & Co. KG

Defendant: Finanzamt Freistadt Rohrbach Urfahr

Re:

Reference for a preliminary ruling — Unabhängiger Finanzsenat, Auβenstelle Linz — Interpretation of Article 4(2)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) — Transactions subject to capital duty — Increase in the assets of a capital company — Possible inclusion in those assets of an undertaking given by a public body, which is the sole member of that company, to absorb the company’s losses

Operative part of the judgment

Article 4(2)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that the absorption by a member of a company’s losses pursuant to an undertaking given by the member before the losses were sustained, the sole purpose of which was to cover such losses, does not increase the assets of that company.

(1)  OJ C 13, 15.1.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/11

Judgment of the Court (Eighth Chamber) of 1 December 2011 — European Commission v French Republic

(Case C-515/10) (1)

(Failure of a Member State to fulfil obligations - Directive 1999/31/EC - Decision 2003/33/EC - National legislation - Landfill for inert waste - Acceptance of asbestos- cement waste)

2012/C 32/19

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Rozet and A. Marghelis, Agents, acting as Agents)

Defendant: French Republic (represented by: G. de Bergues and S. Menez, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Incorrect transposition of Article 2(e), the first subparagraph of Article 3 and Article 6(d) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1) and the provisions of the Annex to Council Decision 2003/33/EC of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31/EC (OJ 2002 L 11, p. 27) — National legislation establishing a category of ‘inert and hazardous’ wastes, not in compliance with the directive — Landfill of asbestos-cement waste

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure that asbestos-cement waste is treated in suitable landfills, the French Republic has failed to fulfil its obligations under Article 2(e), the first subparagraph of Article 3 and Article 6(d) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste and the provisions of the Annex to Council Decision 2003/33/EC of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31.

2.

Orders the French Republic to pay the costs.

(1)  OJ C 30, 29.1.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/12

Judgment of the Court (Grand Chamber) of 6 December 2011 (reference for a preliminary ruling from the Cour d’appel de Paris (France)) — Alexandre Achughbabian v Préfet du Val-de-Marne

(Case C-329/11) (1)

(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - National legislation making provision, in the event of illegal staying, for a sentence of imprisonment and a fine)

2012/C 32/20

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: Alexandre Achughbabian

Defendant: Préfet du Val-de-Marne

Re:

Reference for a preliminary ruling — Cour d'appel de Paris — Interpretation of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — Compatibility of national legislation providing for the imposition of a penalty of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory — Detention for the purposes of deportation — Possible illegal detention

Operative part of the judgment

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as

—

precluding legislation of a Member State repressing illegal stays by criminal sanctions, in so far as that legislation permits the imprisonment of a third-country national who, though staying illegally in the territory of the said Member State and not being willing to leave that territory voluntarily, has not been subject to the coercive measures referred to in Article 8 of that directive and has not, in the event of placing in detention with a view to the preparation and implementation of his removal, reached the expiry of the maximum duration of that detention; and

—

not precluding such legislation in so far as the latter permits the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in that territory with no justified ground for non-return.

(1)  OJ C 298, 8.10.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/12

Order of the Court of 6 October 2011 — ThyssenKrupp Acciai Speciali Terni SpA (C-448/10 P), Cementir Italia Srl (C-449/10 P), Nuova Terni Industrie Chimiche SpA (C-450/10 P) v European Commission

(Joined Cases C-448/10 P to C-450/10 P) (1)

(Appeal - Compensation for expropriation on grounds of public interest - Temporal extension of a preferential tariff for the supply of electricity - Decision declaring the aid incompatible with the common market and ordering its recovery - Concept of advantage - Principle of the protection of legitimate expectations - Interpretation of national law - Distortion - Concept - Appeal manifestly inadmissible and manifestly unfounded)

2012/C 32/21

Language of the case: Italian

Parties

Appellants: ThyssenKrupp Acciai Speciali Terni SpA (C-448/10 P), Cementir Italia Srl (C-449/10 P), Nuova Terni Industrie Chimiche SpA (C-450/10 P) (represented by: T. Salonico. G. Barone and A. Marega, avvocati)

Other party to the proceedings: European Commission (represented by: D. Grespan and G. Conte, acting as Agents.)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 1 July 2010 in Case T-62/08 ThyssenKrupp Acciai Speciali Terni v Commission, by which that Court dismissed an application for annulment of Commission Decision 2008/408/EC of 20 November 2007 on the State aid C 36/A/06 (ex NN 38/06) implemented by Italy in favour of ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche (OJ 2008 L 144, p. 37)

Operative part of the order

1.

The appeals are dismissed.

2.

ThyssenKrupp Acciai Speciali Terni SpA, Cementir Italia Srl and Nuova Terni Industrie Chimiche SpA are ordered to pay the costs.

(1)  OJ C 317, 20.11.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/13

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 3 October 2011 — Deutsche Umwelthilfe e.V. v Federal Republic of Germany

(Case C-515/11)

2012/C 32/22

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Deutsche Umwelthilfe e.V.

Defendant: Federal Republic of Germany

Questions referred

1.

Is the second sentence of Article 2(2) of Directive 2003/4/EC (1) of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC to be interpreted as meaning that bodies and institutions are acting in a legislative capacity when their activities relate to legislation by the executive on the basis of authorisation given by a law enacted by Parliament?

2.

If question 1 is to be answered in the affirmative, are such bodies and institutions permanently excluded from the term ‘public authority’, or only until completion of the legislative process?

(1)  OJ 2003 L 41, p. 26.

4.2.2012   

EN

Official Journal of the European Union

C 32/13

Reference for a preliminary ruling from the Rechtbank van Koophandel te Antwerpen (Belgium) lodged on 7 November 2011 — Pelckmans Turnhout NV v Walter Van Gastel Balen NV and Others

(Case C-559/11)

2012/C 32/23

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Antwerpen

Parties to the main proceedings

Applicant: Pelckmans Turnhout NV

Defendants: Walter Van Gastel Balen NV, Walter Van Gastel NV, Walter Van Gastel Schoten NV, Walter Van Gastel Lifestyle NV

Questions referred

1.

Is it to be regarded as an act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers, and thus as a commercial practice within the meaning of Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)], for a shop to be kept open by a trader seven days a week and for that fact to be advertised?

2.

Does Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, or another provision of European Union law, such as, inter alia, Articles 34 TFEU or 35 TFEU or Articles 49 TFEU or 56 TFEU, preclude a provision of national law, such as Articles 8 to 14 of the [Belgian] Law of 10 November 2006 [on opening hours in commerce, crafts and services (‘the Law of 10 November 2006’)] which (save for certain exceptions set out in that law) require a trader to choose a weekly closing day for the shop, given that the trader is thereby prohibited from opening his shop seven days a week, irrespective of the impact that this has or may have on the average consumer and irrespective of whether that act may, in the particular circumstances, be regarded as being contrary to professional diligence or honest commercial practices, and irrespective also of the fact that other legislation besides the Law of 10 November 2006 safeguards employees’ rest periods for the purposes of employment law?

(1)  OJ 2005 L 149, p. 22.

4.2.2012   

EN

Official Journal of the European Union

C 32/13

Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany), lodged on 16 November 2011 — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd.

(Case C-574/11)

2012/C 32/24

Language of the case: German

Referring court

Landgericht Düsseldorf

Parties to the main proceedings

Applicant: Novartis AG

Defendants: Actavis Deutschland GmbH & Co KG, Actavis Ltd.

Question referred

Are Articles 4 and 5 of Regulation (EC) No 469/2009 (1) to be interpreted as meaning that the protection conferred by a supplementary protection certificate, which has been granted for a single active ingredient (in this case, Valsartan), extends to a form which contains a combination of active ingredients featuring that single active ingredient (in this case, Valsartan + Hydrochlorothiazide)?

(1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (Codified version), OJ 2009 L 152, p. 1.

4.2.2012   

EN

Official Journal of the European Union

C 32/14

Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 21 November 2011 — DKV Belgium v Association belge des consommateurs test-achats ASBL

(Case C-577/11)

2012/C 32/25

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: DKV Belgium

Defendant: Association belge des consommateurs Test-Achats ASBL

Question referred

Should [the second paragraph of] Article 29 and Article 39(3) of Directive 92/49/EEC (1), [the third subparagraph of] Article 8(3) of Directive 73/239/EEC (2), and Articles 49 and 56 TFEU be interpreted as prohibiting the Member States from providing, with regard to health insurance contracts not linked to professional activity, provisions under which the premium, the excess payable and the benefit can be adapted, on the annual date of the premium, only:

—

on the basis of the consumer price index;

—

on the basis of one or more specific indices, to the costs of the services covered by private health insurance contracts [known as a ‘medical index’], if and in so far as the changes in that or those indices exceed that in the consumer price index;

—

with authorisation from an administrative authority, responsible for the supervision of insurance undertakings, upon a request of the insurance undertaking concerned, where that authority finds that the application of the premium rate of that undertaking, notwithstanding the adaptations calculated on the basis of the indices referred to in the paragraphs above, gives rise to, or is likely to give rise to losses, thereby enabling it to take measures in order to balance its premium rates, which may include an amendment to the conditions of cover?

(1)  Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1).

(2)  First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3).

4.2.2012   

EN

Official Journal of the European Union

C 32/14

Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 22 November 2011 — Grande Área Metropolitana do Porto (GAMP) v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território and Others

(Case C-579/11)

2012/C 32/26

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal do Porto

Parties to the main proceedings

Applicant: Grande Área Metropolitana do Porto (GAMP)

Defendants: Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território, Comissão Directiva do Programa Operacional Potencial Humano, Ministério do Trabalho e da Solidariedade Social

Other parties: Sindicato dos Quadros Técnicos do Estado, Ministério da Saúde, Instituto do Desporto de Portugal (IP)

Questions referred

1.

Must Community law and, in particular, the provisions of Articles 5 to 8, 22, 32, 34, 35 and 56 of Council Regulation (EC) No 1083/2006 (1) of 11 July 2006 and Articles 174, 175 and 176 of the Treaty on the Functioning of the European Union, be interpreted as meaning that it does not allow exceptions to the principle of territorial eligibility of expenditure, that is, that expenditure relating to operations co-financed by the Structural Funds and by the Cohesion Fund is eligible under the Operational Programmes only if it is effected in the NUTS II regions covered by each of those Operational Programmes?

2.

Specifically, must the abovementioned instruments be interpreted as meaning that they do not allow national authorities to establish rules that, by constituting exceptions to the principle of territoriality of expenditure, allow investments to be considered eligible under Operational Programmes specifically aimed at the Convergence Objective if the location of those investments, or of the beneficiary body, is not situated in the NUTS II regions covered by such Operational Programmes?

3.

Or, on the contrary, must Community law and, in particular, the provisions in Articles 5 to 8, 22, 32, 34, 35 and 56 of Council Regulation (EC) No 1083/2006 of 11 July 2006 and Articles 174, 175 and 176 of the Treaty on the Functioning of the European Union, be interpreted as meaning that they do not preclude the existence of exceptions to the principle of territorial eligibility of expenditure, allowing national authorities to establish rules that allow the expenditure relating to operations co-financed by the Structural Funds and by the Cohesion Fund to be considered as eligible under the Operational Programmes, even though it is not effected in the NUTS II regions covered by each of those Operational Programmes, particularly when those exceptions relate to expenditure/operations with a relevant spill-over effect, that is, justified according to the nature of the operations and the multiplying effect that they give rise to in regions other than those in which the investment is made?

4.

More specifically, do those instruments preclude national authorities from establishing rules that allow investments to be considered eligible in the context of Operational Programmes aimed at the Convergence Objective where those investments, or the beneficiary body, are not located in the NUTS II regions covered by that Convergence Objective, particularly where they relate to expenditure/operations with a relevant spill-over effect, that is, justified according to the nature of the operations and the multiplying effect that they give rise to in regions other than those in which the investment is made?

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

4.2.2012   

EN

Official Journal of the European Union

C 32/15

Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 25 November 2011 — Christoph Becker v Société Air France SA

(Case C-594/11)

2012/C 32/27

Language of the case: German

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: Christoph Becker

Defendant: Société Air France SA

Question referred

Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 (1) if the departure time of a flight has been delayed for a period of time falling within the limits defined in Article 6(1) of the regulation, but the flight arrives at the final destination at least three hours after the scheduled time of arrival?

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

4.2.2012   

EN

Official Journal of the European Union

C 32/15

Reference for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid (Spain) lodged on 28 November 2011 — Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L. v Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.

(Case C-604/11)

2012/C 32/28

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 12 de Madrid

Parties to the main proceedings

Applicants: Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L.

Defendants: Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.

Questions referred

1.

Must the offering to a client of an interest rate swap arrangement to cover the risk of variations of interest rates on other financial products be regarded as investment advice within the meaning of point [(4)] of Article 4(1) of the MiFID Directive (1)?

2.

Must omission of the suitability test provided for in Article 19(4) of that directive for a retail investor give rise to fundamental nullity of the contract entered into between the investor and the investment institution?

3.

In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the contract?

4.

Does the fact that a credit institution offers a complex financial instrument linked to other financial products constitute sufficient cause to exclude application of the obligations to carry out the suitability and appropriateness tests provided for by Article 19 of the MiFID Directive which the investment institution must undertake in the case of a retail investor?

5.

In order to enable the obligations laid down in Article 19(9) of the MiFID Directive to be excluded, is it necessary for the financial product to which the financial instrument offered is linked to be subject to investor-protection standards similar to those laid down in that directive?

(1)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

4.2.2012   

EN

Official Journal of the European Union

C 32/16

Action brought on 30 November 2011 — European Commission v Italian Republic

(Case C-613/11)

2012/C 32/29

Language of the case: Italian

Parties

Applicant: European Commission (represented by: B. Stromsky and D. Grespan, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

—

declare that, by failing to take, within the prescribed period, all the measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision [2008/92/EC] of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping sector (notified on 11 July 2007 and published in OJ 2008 L 29, p. 24), the Italian Republic has failed to fulfil its obligations under Articles 2 and 5 of that decision and under the Treaty on the Functioning of the European Union;

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for implementing Decision 2008/92 expired on 11 September 2007.

To date, the Italian Republic has not yet undertaken the full recovery of the aid declared unlawful by the decision in question or informed the Commission that recovery has taken place. Moreover, the legal and practical difficulties relied on by Italy as justification for the delay in implementing that decision are not such as to make recovery absolutely impossible in accordance with the case-law of the Court nor has Italy at any stage in fact pleaded that such recovery was absolutely impossible.

In addition, the Commission complains that, in breach of the obligation under the decision in question to communicate information and of the duty of cooperation in good faith, Italy was late in informing it of the progress of the national procedures for implementing the decision.

General Court

4.2.2012   

EN

Official Journal of the European Union

C 32/17

Judgment of the General Court of 16 December 2011 — Enviro Tech Europe Ltd and Enviro Tech International v Commission

(Case T-291/04) (1)

(Environment and consumer protection - Classification, packaging and labelling of n-propyl bromide as a dangerous substance - Directive 2004/73/EC - Directive 67/548/EEC - Regulation (EC) No 1272/2008 - Action for annulment - Late request to adapt claims - Legal interest in bringing proceedings - Lack of individual concern - Inadmissibility - Non-contractual liability - Judgment of the Court of Justice concerning the validity of Directive 2004/73 - Same subject-matter)

2012/C 32/30

Language of the case: English

Parties

Applicants: Enviro Tech Europe Ltd (Kingston upon Thames, United Kingdom); and Enviro Tech International, Inc. (Melrose Park, Illinois, United States) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission (represented: initially by X. Lewis, and subsequently by P. Oliver and G. Wilms, Agents)

Re:

Application, first, for annulment of Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2004 L 152, p. 1, amended by OJ L 216, p. 3), in so far as Directive 2004/73 classified n-propyl bromide as a substance having certain dangerous properties and, second, for damages.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Enviro Tech Europe Ltd and Enviro Tech International, Inc. to pay the costs, including those relating to the interlocutory proceedings.

(1)  OJ C 273, 6.11.2004.

4.2.2012   

EN

Official Journal of the European Union

C 32/17

Judgment of the General Court of 13 December 2011 — Evropaïki Dynamiki v Commission

(Case T-377/07) (1)

(Public service contracts - Tendering procedure - Supply of IT services relating to content interoperability technologies for European eGovernment services - Rejection of a tender - Manifest error of assessment - Obligation to state reasons - Misuse of powers - Non-contractual liability)

2012/C 32/31

Language of the case: English

Parties

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

Defendant: European Commission (represented by: E. Manhaeve, Agent, and by J. Stuyck, lawyer)

Re:

Application for (i) annulment of the Commission’s decision of 13 July 2007 not to accept the tender submitted by Evropaïki Dynamiki in the context of the call for tenders relating to ‘Content interoperability for European eGovernment Services’ (OJ 2006 S 128) and also of the decision to award the contract to another tenderer and (ii) damages

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and pay the costs incurred by the European Commission.

(1)  OJ C 297, 8.12.2007.

4.2.2012   

EN

Official Journal of the European Union

C 32/18

Judgment of the General Court of 15 December 2011 — Luxembourg v Commission

(Case T-232/08) (1)

(EAGGF - Guarantee Section - Expenses excluded from Community financing - Rural development measures - ‘Less favoured areas’ and ‘agroenvironment’ - National systems for management, monitoring and sanctions - Flat-rate financial correction)

2012/C 32/32

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: F. Probst, Agent, assisted by M. Theisen and K. Spitz, lawyers)

Defendant: European Commission (represented by: initially T. van Rijn, subsequently F. Clotuche-Duvieusart and F. Jimeno Fernández, Agents)

Re:

Application for partial annulment of Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2008 L 109, p. 35).

Operative part of the judgment

The Court:

1.

Dismisses the action.

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

(1)  OJ C 209, 15.8.2008.

4.2.2012   

EN

Official Journal of the European Union

C 32/18

Judgment of the General Court of 13 December 2011 — Konsum Nord v Commission

(Case T-244/08) (1)

(State aid - Land sale price - Decision declaring the aid incompatible with the common market and ordering its recovery - Private investor test - Determination of market price)

2012/C 32/33

Language of the case: Swedish

Parties

Applicant: Konsum Nord ekonomisk förening (Umeå, Sweden) (represented by: U. Öberg and I. Otken Eriksson, lawyers)

Defendant: European Commission (represented initially by: C. Giolito, P. Dejmek and J. Enegren, then by C. Giolito and L. Parpala, Agents)

Re:

Application for annulment of Commission Decision 2008/366/EC of 30 January 2008 on State aid C 35/06 (ex NN 37/06) implemented by Sweden for Konsum Jämtland Ekonomisk Förening (OJ 2008 L 126, p. 3).

Operative part of the judgment

The Court:

1.

Annuls Commission Decision 2008/366/EC of 30 January 2008 on State aid C 35/06 (ex NN 37/06) implemented by Sweden for Konsum Jämtland Ekonomisk Förening;

2.

Orders the European Commission to bear its own costs and to pay those incurred by Konsum Nord ekonomisk förening.

(1)  OJ C 223, 30.8.2008.

4.2.2012   

EN

Official Journal of the European Union

C 32/18

Judgment of the General Court of 15 December 2011 — CDC Hydrogene Peroxide v Commission

(Case T-437/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Statement of contents of the administrative file relating to a cartel proceeding - Refusal of access - Exception concerning the protection of the commercial interests of a third party - Exception relating to protection of the purpose of inspections, investigations and audits)

2012/C 32/34

Language of the case: German

Parties

Applicant: CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide) (Brussels, Belgium) (represented initially by R. Wirtz, subsequently by R. Wirtz and S. Echement and finally by T. Funke, A. Kirschstein and D. Stein, lawyers)

Defendant: European Commission (represented initially by P. Costa de Oliveira, A. Antoniadis and O. Weber, and subsequently by A. Bouquet, P. Costa de Oliveira and A. Antoniadis, acting as Agents)

Intervener in support of the applicant: Kingdom of Sweden (represented by: A. Falk, K. Petkovska and S. Johannesson, acting as Agents)

Intervener in support of the defendant: Evonik Degussa GmbH (Essen, Germany) (represented initially by C. Steinle, and then by C. Steinle and M. Holm-Hadulla, lawyers)

Re:

Application for annulment of Commission decision SG.E3/MM/psi D(2008) 6658 of 8 August 2008 refusing full access to the statement of contents of the case-file in Case COMP/F/38.620 — Hydrogen peroxide and perborate.

Operative part of the judgment

The Court:

1.

Annuls Decision SG.E3/MM/psi D(2008) 6658 of the Commission of 8 August 2008 refusing full access to the statement of contents of the case-file in Case COMP/F/38.620 — Hydrogen peroxide and perborate;

2.

Orders the European Commission to bear its own costs and pay those incurred by CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide);

3.

Orders the Kingdom of Sweden and Evonik Degussa to pay their own costs.

(1)  OJ C 313, 6.12.2008.

4.2.2012   

EN

Official Journal of the European Union

C 32/19

Judgment of the General Court of 14 December 2011 — Nycomed Danmark v EMA

(Case T-52/09) (1)

(Medicinal products for human use - Authorisation to place a medicinal product on the market - Regulation (EC) No 1901/2006 - Application for a waiver from the obligation to submit a paediatric investigation plan - Rejection by the EMA - Misuse of powers)

2012/C 32/35

Language of the case: English

Parties

Applicant: Nycomed Denmark ApS (Roskilde, Denmark) (represented: initially by C. Schoonderbeek and H. Speyart van Woerden, lawyers, and subsequently by C. Schoonderbeek)

Defendant: European Medicines Agency (EMA) (represented by: V. Salvatore and N. Rampal Olmedo, Agents)

Interveners in support of the defendant: Portuguese Republic (represented by L. Inez Fernandes and P. Antunes, Agents); Kingdom of Belgium, (represented by T. Materne and C. Pochet, Agents); United Kingdom of Great Britain and Northern Ireland (represented by S. Ossowski and H. Walker, Agents, and by J. Stratford, Barrister); French Republic (represented by G. de Bergues, A. Adam, R. Loosli Surrans and J.-S. Pilczer, Agents); and European Commission (represented by P. Oliver and M. Šimerdová, Agents)

Re:

Application for annulment of the decision of the European Medicines Agency (EMA) of 28 November 2008 rejecting the applicant’s application for a specific waiver with respect to perflubutane in accordance with Regulation (EC) No 1901/2006 of the European Parliament and of the Council, as amended.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Nycomed Danmark ApS to bear its own costs and those of the European Medicines Agency (EMA), including those relating to the proceedings for interim measures;

3.

Orders the Portuguese Republic, the Kingdom of Belgium, the United Kingdom of Great Britain and Northern Ireland, the French Republic and the European Commission to bear their own costs, including those relating to the proceedings for interim measures.

(1)  OJ C 82, 4.4.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/19

Judgment of the General Court of 13 December 2011 — Meica v OHIM — Bösinger Fleischwaren (Schinken King)

(Case T-61/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Schinken King - Earlier national word mark King - Earlier national and Community word marks Curry King - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Duty to state reasons - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

2012/C 32/36

Language of the case: German

Parties

Applicant: Meica Ammerländisch Fleischwarenfabrik Fritz Meinen GmbH & Co. KG (Edewecht, Germany) (represented by: S. Russlies, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bösinger Fleischwaren GmbH (Bösingen, Germany)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 December 2008 (Case R 1049/2007-1) relating to opposition proceedings between Meica Ammerländisch Fleischwarenfabrik Fritz Meinen GmbH & Co. KG and Bösinger Fleischwaren GmbH

Operative part of the judgment

The Court:

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 December 2008 (Case R 1049/2007-1);

2.

Orders OHIM to bear its own costs and to pay those incurred by Meica Ammerländisch Fleischwarenfabrik Fritz Meinen GmbH & Co. KG.

(1)  OJ C 102, 1.5.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/20

Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK)

(Case T-62/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark PROTI SNACK - Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER - Late submission of documents - Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) - Concept of a provision to the contrary - Rule 20(1) of Regulation (EC) No 2868/95 - Rule 50(1) of Regulation No 2868/95)

2012/C 32/37

Language of the case: English

Parties

Applicant: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bariatrix Europe Inc. SAS (Guilherand Granges, France)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 December 2008 (Case R 740/2008-4) relating to opposition proceedings between Bernhard Rintisch and Bariatrix Europe Inc. SAS.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Mr Bernhard Rintisch to pay the costs.

(1)  OJ C 102, 1.5.2009

4.2.2012   

EN

Official Journal of the European Union

C 32/20

Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Valfleuri Pâtes alimentaires (PROTIVITAL)

(Case T-109/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark PROTIVITAL - Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER - Late submission of documents - Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) - Concept of a provision to the contrary - Rule 20(1) of Regulation (EC) No 2868/95 - Rule 50(1) of Regulation No 2868/95)

2012/C 32/38

Language of the case: English

Parties

Applicant: Bernhard Rintisch (Bottrop, Germany) (represented by: A Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Valfleuri Pâtes alimentaires SA (Wittenheim, France) (represented by: F. Baujoin, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 21 January 2009 (Case R 1660/2007-4) relating to opposition proceedings between Bernhard Rintisch and Valfleuri Pâtes alimentaires SA.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Mr Bernhard Rintisch to pay the costs.

(1)  OJ C 113, 16.5.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/21

Judgment of the General Court of 16 December 2011 — Rintisch v OHIM — Valfleuri Pâtes alimentaires (PROTIACTIVE)

(Case T-152/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark PROTIACTIVE - Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER - Late submission of documents - Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) - Concept of a provision to the contrary - Rule 20(1) of Regulation (EC) No 2868/95 - Rule 50(1) of Regulation No 2868/95)

2012/C 32/39

Language of the case: English

Parties

Applicant: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Valfleuri Pâtes alimentaires SA (Wittenheim, France) (represented by: F. Baujoin, lawyer)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 February 2009 (Case R 1661/2007-4) relating to opposition proceedings between Bernhard Rintisch and Valfleuri Pâtes alimentaires SA.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Mr Bernhard Rintisch to pay the costs.

(1)  OJ C 153, 4.7.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/21

Judgment of the General Court of 15 December 2011 — Mövenpick v OHIM (PASSIONATELY SWISS)

(Case T-377/09) (1)

(Community trade mark - Application for Community word mark PASSIONATELY SWISS - Absolute grounds for refusal - Geographical indication of origin - Lack of distinctive character)

2012/C 32/40

Language of the case: German

Parties

Applicant: Mövenpick-Holding (Cham, Swizerland) (represented by: M. Taxhet, 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 23 July 2009 (Case R 1457/2008-1) relating to an application for registration of the word mark PASSIONATELY SWISS as a Community trade mark.

Operative part of the judgment

The Court:

1.

Dismisses the action.

2.

Orders Mövenpick Holding to pay the costs.

(1)  OJ C 282, 21.11.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/21

Judgment of the General Court of 16 December 2011 — Dashiqiao Sanqiang Refractory Materials v Council

(Case T-423/09) (1)

(Dumping - Imports of certain magnesia bricks originating in the People’s Republic of China - Regulation terminating an interim review - Comparison between the normal value and the export price - Taking into account the value added tax of the country of origin - Application of a different methodology to that used in the initial investigation - Change in circumstances - Articles 2(10)(b) and 11(9) of Regulation (EC) No 384/96 (now Articles 2(10)(b) and 11(9) of Regulation (EC) No 1225/2009)

2012/C 32/41

Language of the case: French

Parties

Applicant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (Dashiqiao, China) (represented by: J.-F. Bellis and R. Luff, lawyers)

Defendant: Council of the European Union (represented by: initially J.-P. Hix and subsequently by J.-P. Hix and B. Driessen, Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers)

Intervener in support of the defendant: European Commission (represented by: É. Gippini Fournier and H. van Vliet, Agents)

Re:

Application for annulment of Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China (OJ 2009 L 240, p. 7), in so far as the anti-dumping duty it sets in relation to the applicant exceeds that which would be applicable if that duty had been determined on the basis of the method of calculation applied in the original investigation in order to take account of the fact that Chinese export VAT was not refunded.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Dashiqiao Sanqiang Refractory Materials Co. Ltd to bear its own costs and to pay those incurred by the Council of the European Union;

3.

Orders the European Commission to bear its own costs.

(1)  OJ C 312, 19.12.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/22

Judgment of the General Court of 13 December 2011 — Goodyear Dunlop Tyres UK v OHIM — Sportfive (QUALIFIER)

(Case T-424/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark QUALIFIER - Earlier Community word mark Qualifiers 2006 - Refusal to register - Relative ground for refusal - Likelihood of confusion - article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 32/42

Language of the case: German

Parties

Applicant: Goodyear Dunlop Tyres UK Ltd (Birmingham, United Kingdom) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sportfive GmbH & Co. KG (Cologne, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 August 2009 (Case R 1291/2008-4) relating to opposition proceedings between Sportfive GmbH & Co. KG and Goodyear Dunlop Tyres UK Ltd.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Goodyear Dunlop Tyres UK Ltd to pay the costs.

(1)  OJ C 312, 19.12.2009.

4.2.2012   

EN

Official Journal of the European Union

C 32/22

Judgment of the General Court of 14 December 2011 — Völkl v OHIM — Marker Völkl (VÖLKL)

(Case T-504/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark VÖLKL - Earlier international word mark VÖLKL - Relative ground for refusal - Likelihood of confusion - Refusal in part of registration - Article 8(1)(b) of Regulation (EC) No 207/2009 - Genuine use of the earlier mark - Article 42(2) and (3) of Regulation No 207/2009 and Rule 22(3) of Regulation (EC) No 2868/95 - Competence of the Board of Appeal in the case of an appeal limited to part of the goods or services covered by the application for registration - Article 64(1) of Regulation No 207/2009 - Application for variation of the decision of the Board of Appeal - Article 65(3) of Regulation No 207/2009)

2012/C 32/43

Language of the case: German

Parties

Applicant: Völkl GmbH & Co. KG (Erding, Germany) (represented by: C. Raßmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marker Völkl International GmbH (Baar, Switzerland) (represented by: J. Bauer, lawyer)

Re:

Action against the decision of the First Board of Appeal of OHIM of 30 September 2009 (Case R 1387/2008-1) concerning opposition proceedings between Marker Völkl International GmbH and Völkl GmbH & Co. KG.

Operative part of the judgment

The Court:

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 September 2009 (Case R 1387/2008-1);

2.

Dismisses the action as to the remainder;

3.

Orders OHIM to bear its own costs and pay those incurred by Völkl GmbH & Co. KG;

4.

Orders Marker Völkl International GmbH to bear its own costs.

(1)  OJ C 37, 13.2.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/23

Judgment of the General Court of 14 December 2011 — Kingdom of Spain v Commission

(Case T-106/10) (1)

(EAGGF - Guidance Section - Reduction of financial aid - Community initiative programme Leader+ - Article 4 of Regulation (EC) No 438/2001 - Proportionality)

2012/C 32/44

Language of the case: Spanish

Parties

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

Defendant: European Commission (represented by: G. von Rintelen and F. Jimeno Fernández, Agents)

Re:

Application for annulment of Commission Decision C(2009) 10136 of 18 December 2009 final applying financial corrections to the support from the Guidance Section of the EAGGF allocated to the Community initiative CCI 2000 ES.060.0.PC.003 (Spain — Leader + Aragon).

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders the Kingdom of Spain to pay the costs.

(1)  OJ C 113, 1.5.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/23

Judgment of the General Court of 14 December 2011 — Vuitton Malletier v OHIM — Friis Group International (Representation of a locking device)

(Case T-237/10) (1)

(Community trade mark - Invalidity proceedings - Distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - No distinctive character acquired through use - Article 7(3) of Regulation (EC) No 207/2009)

2012/C 32/45

Language of the case: English

Parties

Applicant: Louis Vuitton Malletier (Paris, France) (represented by: P.L. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Friis Group International ApS (Copenhagen, Denmark) (represented by: C. Type Jardorf, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 24 February 2010 (Case R 1590/2008-1) concerning invalidity proceedings between Friis Group International Aps and Louis Vuitton Malletier

Operative part of the judgment

The Court:

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 February 2010 (Case R 1590/2008-1) in so far as it declared Community trade mark number 3 693 116 invalid for ‘Jewellery, including rings, keyrings, buckles and earrings, cuff links, bracelets, trinkets, brooches, necklaces, ties pins, ornaments, medallions; horological and chronometric instruments and apparatus, including watches, watchcases, alarm clocks; nutcrackers in precious metals, their alloys or coated therewith, candlesticks in precious metals, their alloys or coated therewith’ in Class 14 and ‘leather and imitations of leather’ and ‘umbrellas’ in Class 18;

2.

Dismisses the action as to the remainder;

3.

Orders Louis Vuitton Malletier, Friis Group International ApS and OHIM to each bear the costs they have incurred in the course of the proceeding before the General Court.

(1)  OJ C 209, 31.7.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/23

Judgment of the General Court of 14 December 2011 — Commission v Pachtitis

(Case T-361/10 P) (1)

(Appeal - Civil service - Officials - Recruitment - Notice of competition - Open competition - Non-admission to participation in the written test following the result obtained in the admission tests - Division of powers between EPSO and the competition selection board)

2012/C 32/46

Language of the case: Greek

Parties

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

Other parties to the proceedings: Dimitrios Pachtitis (Athens, Greece) (represented by: P. Giatagantzidis and K. Kyriazi, lawyers); and European Data Protection Supervisor (EDPS)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 15 June 2010 in Case F-35/08 Pachtitis v Commission, and for that judgment to be set aside.

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders the European Commission to bear its own costs and to pay those incurred by Mr Dimitrios Pachtitis in the present proceedings.

(1)  OJ C 301, 6.11.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/24

Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Mixfront)

(Case T-425/10) (1)

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

2012/C 32/47

Language of the case: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by: M. Eck and J. Dönch, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: S. Schäffner, subsequently by: R. Manea and finally by: A. Pohlmann, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 30 June 2010 (Case R 338/2010-1), concerning an application for registration of the word sign Mixfront as a Community trade mark.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Häfele GmbH & Co. KG to pay the costs.

(1)  OJ C 317, 20.11.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/24

Judgment of the General Court of 14 December 2011 — Allen and Others v Commission

(Case T-433/10 P) (1)

(Appeal - Staff employed at the JET joint undertaking - Application of a legal status different from that of members of the temporary staff - Compensation for material damage suffered - Time-limits for instituting proceedings - Late submission - Reasonable period)

2012/C 32/48

Language of the case: English

Parties

Appellants: John Allen (Horspath, United Kingdom) and the 109 other appellants whose names are listed in the annex to the judgment (represented by: K. Lasok QC and B. Lask, Barrister)

Other party to the proceedings: European Commission (represented by: J. Currall and D. Martin, Agents)

Re:

Appeal against the order of the European Union Civil Service Tribunal (First Chamber) of 13 July 2010 in Case F-103/09 Allen and Others v Commission (not yet published in the ECR) seeking to have that order set aside.

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders Mr John Allen and the 109 other appellants whose names are listed in the annex to bear their own costs and those incurred by the European Commission in the present proceedings.

(1)  OJ C 317, 20.11.2010.

4.2.2012   

EN

Official Journal of the European Union

C 32/24

Judgment of the General Court of 16 December 2011 — France v Commission

(Case T-488/10) (1)

(ERDF - Reduction of financial contribution - Community structural assistance in Martinique - Action for annulment - Public contracts - Directive 93/37/EEC - Concept of ‘direct subsidy’ - Concept of sports, recreation and leisure facilities - Obligation to state reasons - Principle of proportionality)

2012/C 32/49

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and N. Rouam, acting as Agents)

Defendant: European Commission (represented by: F. Dintilhac and A. Steiblytè, Agents)

Re:

Action for annulment of European Commission Decision No C(2010) 5229 of 28 July 2010 concerning the cancellation of part of the contribution of the European Regional Development Fund (ERDF) under the single programming document for objective 1 for Community structural assistance in Martinique, France.

Operative part of the judgment

The Court:

1.

Dismisses the action.

2.

Orders the French Republic to pay the costs.

(1)  OJ C 13, 15.1.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/25

Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Vorfront)

(Case T-531/10) (1)

(Community trade mark - Application for Community word mark Vorfront - Absolute ground for refusal - Article 7(1)(c) of Regulation (EC) No 207/2009)

2012/C 32/50

Language of the case: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by: M. Eck and J. Dönch, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: S. Schäffner, subsequently by: R. Manea and finally by: A. Pohlmann, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 September 2010 (Case R 570/2010-1), concerning an application for registration of the word sign Vorfront as a Community trade mark.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Häfele GmbH & Co. KG to pay the costs.

(1)  OJ C 30, 29.1.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/25

Judgment of the General Court of 14 December 2011 — De Luca v Commission

(Case T-563/10 P) (1)

(Appeal - Cross-appeal - Staff case - Officials - Appointment to a post in a higher function group following an open competition - Entry into force of the new Staff Regulations - Transitional provisions - Article 12(3) of Annex XIII to the Staff Regulations)

2012/C 32/51

Language of the case: French

Parties

Appellant: Patrizia De Luca (Brussels, Belgium) (represented by: J.-N. Louis and S. Orlandi, lawyers)

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

Re:

Appeal against the judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 in Case F-20/06 De Luca v Commission [2010] ECR I-0000, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.

Dismisses the cross-appeals.

2.

Sets aside the judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 in Case F-20/06 De Luca v Commission [2010] ECR I-0000.

3.

Refers the case back to the Civil Service Tribunal.

4.

The costs are reserved

(1)  OJ C 63, 26.2.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/25

Judgment of the General Court of 14 December 2011 — Commission v Vicente Carbajosa and Others

(Case T-6/11 P) (1)

(Appeal - Staff case - Officials - Recruitment - Notice of competition - Open competition - Non-admission to the written test following the result obtained in the admission tests - Distribution of powers between EPSO and the selection board - Principle of the right to be heard)

2012/C 32/52

Language of the case: French

Parties

Applicant: European Commission (represented by: J. Currall and B. Eggers, Agents)

Defendants: Isabel Vicente Carbajosa (Brussels, Belgium); Niina Lehtinen (Brussels); and Myriam Menchén (Brussels) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Re:

Appeal against the judgment of the Civil Service Tribunal (First Chamber) of 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission [2010] ECRSC I-0000, seeking to have that judgment set aside in part.

Operative part of the judgment

The Court:

1.

Sets aside the judgment of the Civil Service Tribunal of 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission in so far as it annuls the decisions of the European Personnel Selection Office (EPSO) not to admit Ms Isabel Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Niina Lehtinen and Ms Myriam Menchén in respect of the competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application.

2.

Annuls the decision of EPSO not to admit Ms Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Lehtinen and Ms Menchén in respect of the competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application.

3.

Orders Ms Vicente Carbajosa, Ms Lehtinen and Ms Menchén and the European Commission to bear their own costs.

(1)  OJ C 72, 5.3.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/26

Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Infront)

(Case T-166/11) (1)

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

2012/C 32/53

Language of the case: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by: M. Eck and J. Dönch, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: R. Manea and subsequently by: A. Pohlmann, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 January 2011 (Case R 1711/2010-1), concerning an application for registration of the word sign Infront as a Community trade mark.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Häfele GmbH & Co. KG to pay the costs.

(1)  OJ C 145, 14.5.2011.

4.2.2012   

EN

Official Journal of the European Union

C 32/26

Action brought on 23 May 2011 — Fon Wireless v OHIM — nfon (nfon)

(Case T-283/11)

2012/C 32/54

Language in which the application was lodged: Spanish

Parties

Applicant: Fon Wireless Ltd (London, United Kingdom) (represented by: F. Brandolini Kujman, lawyer)

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

Other party to the proceedings before the Board of Appeal: nfon AG (Munich, Germany)

Form of order sought

The applicant claims that the Court should:

—

declare the action admissible, together with all of the relevant documents and copies;

—

declare the proposed evidence admissible;

—

accept that evidence, and annul and declare inapplicable the decision of the Fourth Board of Appeal of OHIM of 18 March 2011 in Case R 1017/2009-4 and, consequently, refuse the registration of Community trade mark No 6.206.321 ‘nfon’;

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: nfon AG.

Community trade mark concerned: word mark ‘nfon’ for goods and services in Classes 9, 35 and 38.

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

Mark or sign cited in opposition: Community and national figurative and word mark ‘fon’ for goods and services in Classes 9, 38 and 42.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: appeal upheld.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since the opposing marks are similar; and infringement of Article 8(5) of Regulation (EC) No 207/2009, since nfon AG claims to be taking advantage of the reputation acquired by the earlier marks.

4.2.2012   

EN

Official Journal of the European Union

C 32/26

Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Coffee service set with grooves)

(Case T-566/11)

2012/C 32/55

Language in which the application was lodged: Spanish

Parties

Applicant: Viejo Valle, SA (L'Olleria, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etablissements Coquet SA (Saint Léonard de Noblat, France)

Form of order sought

The applicant claims that the General Court should:

—

declare the present action, together with its annexes, admissible;

—

annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2011, in Case R 1054/2010-3;

—

order the defendant to pay the costs.

Pleas in law and main arguments

Design in respect of which a declaration of invalidity has been sought: Design No 384.912-0001, representing a decorated service set; a coffee cup and saucer.

Proprietor of the Community design: the applicant.

Applicant for the declaration of invalidity of the Community design: Etablissements Coquet SA.

Grounds for the application for a declaration of invalidity: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002, since the Community design constitutes an unauthorised use of a work protected by the copyright legislation of a Member State.

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

Decision of the Board of Appeal: dismissed the action.

Pleas in law: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002 and Article 28(1)(b)(iii) of Regulation No 2245/2002, since the defendant has not sufficiently documented the protected work on which the application for a declaration of invalidity is based, nor provided details of its proprietorship, nor its object.

4.2.2012   

EN

Official Journal of the European Union

C 32/27

Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Soup-plate with grooves)

(Case T-567/11)

2012/C 32/56

Language in which the application was lodged: Spanish

Parties

Applicant: Viejo Valle, SA (L'Olleria, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etablissements Coquet SA (Saint Léonard de Noblat, France)

Form of order sought

The applicant claims that the General Court should:

—

declare the present action, together with its annexes, admissible;

—

annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2011, in Case R 1055/2010-3;

—

order the defendant to pay the costs.

Pleas in law and main arguments

Design in respect of which a declaration of invalidity has been sought: Design No 384.912-0009, representing a decorated service set; a soup-plate.

Proprietor of the Community design: the applicant.

Applicant for the declaration of invalidity of the Community trade mark: Etablissements Coquet SA.

Grounds for the application for a declaration of invalidity: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002, since the Community design constitutes an unauthorised use of a work protected by the copyright legislation of a Member State.

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

Decision of the Board of Appeal: dismissed the action.

Pleas in law: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002 and Article 28(1)(b)(iii) of Regulation No 2245/2002, since the defendant has not sufficiently documented the protected work on which the application for a declaration of invalidity is based, nor provided details of its proprietorship, nor its object.

4.2.2012   

EN

Official Journal of the European Union

C 32/27

Action brought on 15 November 2011 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-584/11)

2012/C 32/57

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Other party to the proceedings before the Board of Appeal: Alfred Hartmann (Leer, Germany)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 September 2011 in Case R 2262/2010-1;

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: word mark ‘ATLAS TRANSPORT’ for goods in Class 39.

Proprietor of the Community trade mark: the applicant.

Party applying for revocation of the Community trade mark: Alfred Hartmann.

Decision of the Cancellation Division: rejection of the application for revocation.

Decision of the Board of Appeal: appeal upheld.

Pleas in law: infringement of Rule 40(5), in conjunction with Rule 22, of Implementing Regulation No 2868/95 due to an erroneous assessment of the evidence; infringement of Article 15 of Regulation No 207/2009, since, in its literal interpretation, the defendant addressed the issue alone as to whether there had been a legitimate use of the mark for the corresponding services; infringement of Article 76(1) of Regulation No 207/2009, since, in determining the meaning of the term ‘transport’, the defendant referred merely to one source and thus evaluated that term without due care and insufficiently; infringement of Article 75, sentence 1, of Regulation No 207/2009, since the defendant failed to clearly reason its legal opinion; infringement of Article 75, sentence 2, and Article 76(2) of Regulation No 207/2009 as a result of a breach of the right to be heard.

4.2.2012   

EN

Official Journal of the European Union

C 32/28

Action brought on 17 November 2011 — Phonebook of the World v OHIM — Seat Pagine Gialle (PAGINE GIALLE)

(Case T-589/11)

2012/C 32/58

Language in which the application was lodged: English

Parties

Applicant: Phonebook of the World (Paris, France) (represented by: A. Bertrand, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seat Pagine Gialle SpA (Milan, Italy)

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 4 August 2011 in case R 1541/2010-2;

—

Annul the registration of the Community trade mark ‘PIAGINE GIALLE’ No 161380, registered in classes 16 and 35 by the other party to the proceedings before the Board of Appeal; and

—

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘PAGINE GIALLE’, for goods and services in classes 16 and 35 — Community trade mark registration No 161380

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request for invalidity pursuant to Article 52(1)(a) of Council Regulation (EC) No 207/2009, namely that the Community trade mark was registered in breach of the provisions of Article 7(1)(c) and (d) of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 52(1)(a) in conjunction with Articles 7(1)(b) to 7(1)(d) of Council Regulation No 207/2009, as the Board of Appeal refused to apply the general principles of community law, and especially the principles set by the judgement rendered by the Court of First Instance in case T-322/03, Telefon & Buch/OHMI — Herold Business Data (WEISSE SEITEN), and also refused to apply its own findings, that the words ‘PAGINE GIALLE’ were devoid of any distinctive character for the Italian public.

4.2.2012   

EN

Official Journal of the European Union

C 32/29

Action brought on 15 November 2011 — Przedsiębiorstwo Handlowe Medox Lepiarz Lepiarz v OHIM — Henkel (SUPER GLUE)

(Case T-591/11)

2012/C 32/59

Language in which the application was lodged: Polish

Parties

Applicant: Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz Alicja sp. j. (Jaworzno, Republic of Poland) (represented by: M. Konieczyński, lawyer)

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

Other party to the proceedings before the Board of Appeal: Henkel Corp. (Gulph Mills, United States)

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 12 September 2011 in Case R 1147/2010-4;

—

order the defendant to pay the costs, including the costs of representation in the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Przedsiębiorstwo Handlowe Medox Lepiarz Lepiarz

Community trade mark concerned: figurative trade mark depicting a tube in the colours white, black, grey and yellow and containing the word element ‘SUPER GLUE’, for goods in Classes 1 and 16 — Community trade mark application No 7 262 405

Proprietor of the mark or sign cited in the opposition proceedings: Henkel Corp.

Mark or sign cited in opposition: Word mark No 377 517‘SUPERGLUE’ registered in Benelux, for goods in Classes 1 and 16

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1) as regards establishment of the similarity of the trade marks and of the likelihood of confusion on the part of consumers

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

4.2.2012   

EN

Official Journal of the European Union

C 32/29

Action brought on 28 November 2011 — MPDV Mikrolab v OHIM (Lean Performance Index)

(Case T-598/11)

2012/C 32/60

Language of the case: German

Parties

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (Mosbach, Germany) (represented by W. Göpfert, lawyer)

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

Form of order sought

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 September 2011 in Case R 131/2011-1;

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘Lean Performance Index’ for goods and services in Classes 9, 16, 35 and 42.

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, since the Community trade mark concerned is distinctive and not descriptive.

4.2.2012   

EN

Official Journal of the European Union

C 32/29

Action brought on 25 November 2011 — Eni v OHIM — EMI (IP) (ENI)

(Case T-599/11)

2012/C 32/61

Language in which the application was lodged: English

Parties

Applicant: Eni SpA (Roma, Italy) (represented by: D. De Simone 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: EMI (IP) Ltd (London, United Kingdom)

Form of order sought

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2011 in case R 2439/2010-1; 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 ‘ENI’, for goods and services in classes 1-4, 6-7, 9, 11, 14, 16-19, 22, 25 and 35 to 45 — Community trade mark application No 6488076

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: Community trade mark registration No 4197315 of the word mark ‘EMI’, for goods and services in classes 9, 16, 35, 38, 41 and 42; Community trade mark registration No 6167357 of the figurative mark ‘EMI’, for goods and services in classes 9, 16, 28, 35, 38, 41 and 42

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant challenges the mentioned decision of the First Board of Appeal on the following three grounds: (i) erroneous and non-motivated finding of similarity of goods and services, based on the misunderstanding and misapplication of previous case-law on the point; (ii) erroneous interpretation and application of the Praktiker case, denoting a misunderstanding of its anti-monopolistic inspiring principles and in particular of the ratio that inspired the introduction of registrability of retail services; and (iii) erroneous finding of similarity of signs, and erroneous finding of likelihood of confusion.

4.2.2012   

EN

Official Journal of the European Union

C 32/30

Action brought on 25 November 2011 — Schuhhaus Dielmann v OHIM — Carrera (Carrera panamericana)

(Case T-600/11)

2012/C 32/62

Language in which the application was lodged: German

Parties

Applicant: Schuhhaus Dielmann GmbH & Co. KG (Darmstadt, Germany) (represented by: W. Göpfert)

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

Other party to the proceedings before the Board of Appeal: Carrera SpA (Caldiero, Italy)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the First board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 September 2011 in Case R 1989/2010-1;

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: word mark ‘Carrera panamericana’ for goods in Classes 18 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: Carrera SpA.

Mark or sign cited in opposition: figurative mark containing the word element ‘CARRERA’ for goods in Class 25.

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, since there is no likelihood of confusion between the opposing marks.

4.2.2012   

EN

Official Journal of the European Union

C 32/30

Action brought on 22 November 2011 — Pêra-Grave v OHIM — Fundação De Almeida (QTA S. JOSÉ DE PERAMANCA)

(Case T-602/11)

2012/C 32/63

Language in which the application was lodged: English

Parties

Applicant: Pêra-Grave Sociedade Agrícola, Unipessoal, Lda (Évora, Portugal) (represented by: J. de Oliveira Vaz Miranda Sousa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fundação Eugénio De Almeida (Évora, Portugal)

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 19 September 2011 in case R 1797/2010-2 with the consequence that the opposition directed against the trade mark applied for will be rejected in its entirety and therefore the registration of the trade mark applied for will be allowed in its entirety; and

—

Order the defendant to bear its own costs and the costs incurred by the applicant in connection of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘QTA S. JOSÉ DE PERAMANCA’, for goods in class 33 — Community trade mark application No 7291669

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: Portuguese trade mark registration No 283684 of the figurative mark ‘VINHO PÊRAMANCA TINTO’, for goods in class 33; Portuguese trade mark registration No 308864 of the figurative mark ‘VINHO PÊRAMANCA BRANCO’, for goods in class 33; Portuguese trade mark application No 405797 of the figurative mark ‘PÊRAMANCA’, for goods in class 33

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the opposition and the appeal, annulled the contested decision and rejected the CTM application for all the contested goods

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) erred in law in diminishing the overall weight of the numerous visual, aural and conceptual dissimilarities between the signs and in increasing and therefore overestimating the overall impact of the only common element they contain, the verbal elements ‘PERA’ and ‘MANCA’; and (ii) misapplied the principles and the approach established by the General Court in case T-332/05 ‘TERRANUS/TERRA’ to the case sub judice and wrongly considered that the degree of overall similarity between the confronted signs was sufficient to lead to a likelihood of confusion.

4.2.2012   

EN

Official Journal of the European Union

C 32/31

Action brought on 28 November 2011 — Mega Brands v OHIM — Diset (MAGNEXT)

(Case T-604/11)

2012/C 32/64

Language in which the application was lodged: English

Parties

Applicant: Mega Brands International, Luxembourg, Zweigniederlassung Zug (Zug, Suisse) (represented by: A. Nordemann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Diset, SA (Barcelona, Spain)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2011 in case R 1695/2010-4 and reject the opposition No B 1383639; and

—

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark in black and white ‘MAGNEXT’, for goods in class 28 — Community trade mark application No 6588991

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 2550099 of the word mark ‘MAGNET 4’, for goods in class 28; Community trade mark registration No 3840121 of the figurative mark in blue and white ‘Diset Magnetics’, for goods and services in classes 16, 28 and 41

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its appreciation of the likelihood of confusion between the opposed mark and the applied mark.

4.2.2012   

EN

Official Journal of the European Union

C 32/31

Action brought on 29 November 2011 — Novartis v OHIM — Organic (BIOCERT)

(Case T-605/11)

2012/C 32/65

Language in which the application was lodged: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dr. Organic Ltd (Swansea, United Kingdom)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 September 2011 in case R 1030/2010-4; and

—

Order the defendant to bear the costs of the proceedings.

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 word mark ‘BIOCERT’, for goods and services in classes 3, 4, 5, 29, 30, 31, 32, 35 and 44 — Community trade mark application No 7134984

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

Mark or sign cited in opposition: Austrian trade mark registration No 136273 of the word mark ‘BIOCEF’, for goods in class 5

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 76(1) of Council Regulation No 207/2009, as the Board of Appeal: (i) misinterpreted general principles laid down by the European courts and wrongly concluded that there is no likelihood of confusion between ‘BIOCEF’ and ‘BIOCERT’; and (ii) wrongly based its decision on facts which have not been forwarded by the parties of the proceedings.

4.2.2012   

EN

Official Journal of the European Union

C 32/32

Action brought on 30 November 2011 — Woodman Labs V OHIM — 2 Mas 2 Publicidad Integral (HERO)

(Case T-606/11)

2012/C 32/66

Language in which the application was lodged: English

Parties

Applicant: Woodman Labs, Inc. (Sausalito, United States of America) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: 2 Mas 2 Publicidad Integral, SL (Vitoria-Gasteiz, Spain)

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 September 2011 in case R 876/2010-4; and

—

Order the costs of the proceedings to be borne by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘HERO’, for goods in class 9 — Community trade mark application No 6750376

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: Community trade mark registration No 5883533 of the figurative mark in gold and black ‘hero PICTURES’, for goods and services in classes 9 and 41

Decision of the Opposition Division: The Community trade mark application was allowed to proceed for part of the goods in class 9

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly ruled that likelihood of confusion exists between the earlier mark and the Community trade mark application.

4.2.2012   

EN

Official Journal of the European Union

C 32/32

Action brought on 30 November 2011 — Beifa Group v OHIM — Schwan-Stabilo Schwanhäußer (Instruments for writing)

(Case T-608/11)

2012/C 32/67

Language in which the application was lodged: English

Parties

Applicant: Beifa Group Co. Ltd (formerly Ningbo Beifa Group Co. Ltd) (Zhejiang, China) (represented by: R. Davis, Barrister, and N. Cordell, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Schwan-Stabilo Schwanhäußer GmbH & Co. KG (Heroldsberg, Germany)

Form of order sought

—

Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2011 in case R 1838/2010-3; and

—

Order the defendant to pay its own costs and pay those of the applicant.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: A design for the product ‘instruments for writing’ — registered Community design No 352315-0007

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: German trade mark registration No 30045470.8 of a figurative mark representing an instrument for writing, for goods in class 16; German trade mark registration No 936051 of a figurative mark representing an instrument for writing, for goods in class 16; German trade mark registration No 2911311 of a three-dimensional mark representing an instrument for writing, for goods in class 16; International trade mark registration No 936051 of a figurative mark representing an instrument for writing, for goods in class 16; International trade mark registration No 418036 of a figurative mark representing an instrument for writing, for goods in class 16

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 61(6) of Council Regulation No 6/2002, as the Board of Appeal proceeded to an impermissible re-examination. Infringement of Article 62 of Council Regulation No 6/2002, as the Board of Appeal; (i) violated the fundamental principles of this Article by the manner it applied the measures necessary to comply with the decision of the General Court; and (ii) erroneously applied the test for both Articles 25(1)(b) and 25(1)(e) CDR. Infringement of Article 25(1)(e) of Council Regulation No 6/2002, as the Board of Appeal; (i) applied the wrong test to determine whether there was the requisite ‘use’ of the mark in the registered Community design; (ii) failed to consider whether the marks had been used both as an ingredient of Article 25(1)(e) CDR and as an ingredient of the German national law; and (iii) proceeded to an incorrect application of the test for right to prevent use. Infringement of Article 25(1)(b) of Council Regulation No 6/2002, as the Board of Appeal wrongly assessed the characteristics of the informed user and both the manner and the method by which the assessment of overall impression should be made.

4.2.2012   

EN

Official Journal of the European Union

C 32/33

Action brought on 2 December 2011 — Wagon Automotive Nagold v Commission

(Case T-610/11)

2012/C 32/68

Language of the case: German

Parties

Applicant: Wagon Automotive Nagold GmbH (Nagold, Germany) (represented by: T. Hackemann and H. Horstkotte, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the European Commission of 26 January 2011, C(2011) 275, in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies in essence on the following pleas in law:

1.

First plea in law, alleging infringement of Article 107(1) TFEU: the deduction of losses is not an aid granted through State resources

With regard to this plea, the applicant submits that Paragraph 8c(1) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) infringes the principle of net profit or loss and the ability-to-pay principle and that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty merely prevents an unconstitutional intervention in the assets of taxable persons in cases covered by that provision. For that reason the applicant takes the view that the Community law definition of State aid is not fulfilled.

2.

Second plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity in the absence of an exception to the relevant reference system

The applicant submits in that regard, that the relevant reference system is the general rules on the deduction of losses for corporations (Paragraph 10d of the German Law on Income Tax in conjunction with Paragraph 8(1) of the KStG and Paragraph 10a of the German Law on Trade Tax) and that Paragraph 8c of the KStG is merely an exception to that relevant reference system, which is in turn limited inter alia by the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty.

3.

Third plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity as there is no differentiation between economic operators who are in a comparable factual and legal position as regards the objective pursued

The applicant submits in this connection inter alia that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty benefits all taxable undertakings and does not favour either particular areas of business and sectors or undertakings of a particular size.

4.

Fourth plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity due to justification on the basis of the nature and general scheme of the tax system

The applicant submits in that regard, that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is based on tax system specific reasons which comply with principles of constitutional law, such as taxation according to ability to pay, the prevention of excessive taxation and respect for the principle of proportionality.

5.

Fifth plea in law, alleging infringement of Article 107(1) TFEU: Manifest errors of assessment on the basis of insufficient consideration of the position under German tax law

The applicant submits in that regard, that the Commission failed to have regard to the provisions of German tax law on deduction of losses.

6.

Sixth plea in law, alleging that there is a legitimate expectation under EU law

The applicant submits in this connection that the tax privileges in question upon acquisitions of interests together with deductions of losses were raised by the Commission for the first time in a formal investigation procedure and that this is an extraordinary situation as the question whether a measure may constitute State aid could only arise on the basis of a legal simplification of a provision (Paragraph 8(4) of the KStG) which is undisputedly in conformity with the provisions on State aid. The relevance to State aid of that simplification of the law was not discernible to either the German legislature or undertakings which had been competently advised.

4.2.2012   

EN

Official Journal of the European Union

C 32/34

Action brought on 1 December 2011 — Spa Monopole v OHIM — South Pacific Management (Manea Spa)

(Case T-611/11)

2012/C 32/69

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and E. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: South Pacific Management (Papeete, Polynesia)

Form of order sought

The applicant claims that the Court should:

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2011 in Joined Cases R 1776/2010-1 and 1886/2010-1;

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: South Pacific Management.

Community trade mark concerned: word mark ‘Manea Spa’ for goods and services in Classes 3, 24, 25, 43 and 44.

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

Mark or sign cited in opposition: Benelux registrations of the word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 3, 32 and 42 (now Class 44).

Decision of the Opposition Division: partial rejection of the opposition.

Decision of the Board of Appeal: dismissal of the applicant’s appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009 in the assessment of the similarity of the marks at issue and as regards the assessment of the importance of the distinctive character acquired by use of the mark ‘SPA’ and of the likelihood of confusion, as well as breach of Article 8(5) of Regulation No 207/2009 as regards the assessment of the reputation of the marks ‘SPA’ and ‘Les Thermes de Spa’.

4.2.2012   

EN

Official Journal of the European Union

C 32/34

Action brought on 2 December 2011 — Treofan Holdings and Treofan Germany v Commission

(Case T-612/11)

2012/C 32/70

Language of the case: German

Parties

Applicants: Treofan Holdings GmbH (Raunheim, Germany) and Treofan Germany GmbH & Co. KG (represented by: J. de Weerth, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

annul the decision of the European Commission of 26 January 2011, C(2011) 275, as corrected by C(2011) 2608, in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies in essence on the following pleas in law:

1.

First plea in law, alleging infringement of Article 107(1) TFEU: the deduction of losses is not an aid granted through State resources

With regard to this plea, the applicants submit inter alia, that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty does not confer a financial advantage, but rather maintains a company’s already existing financial position in the form of the carry forward of losses. The applicants therefore take the view that there is no financing through State resources.

2.

Second plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity in the absence of an exception to the relevant reference system

The applicants submit in that regard that the relevant reference system is the general rules on the deduction of losses for corporations (Paragraph 10d of the German Law on Income Tax in conjunction with Paragraph 8(1) of the KStG and Paragraph 10a of the German Law on Trade Tax) and that the limitation by Paragraph 8c of the KStG is merely an exception to that relevant reference system, which is in turn limited inter alia by the provision enabling the fiscal carry forward of losses as a partial exception to that exception.

3.

Third plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity as there is no differentiation between economic operators who are in a comparable factual and legal position as regards the objective pursued

The applicants submit in this connection inter alia that the provision enabling the fiscal carry forward of losses benefits all taxable undertakings and does not favour either particular areas of business and sectors or undertakings of a particular size.

4.

Fourth plea in law, alleging infringement of Article 107(1) TFEU: Absence of selectivity due to justification on the basis of the nature and general scheme of the tax system

The applicants submit in that regard that the provision enabling the fiscal carry forward of losses is based on tax system specific reasons which comply with principles of constitutional law, such as taxation according to ability to pay, the prevention of excessive taxation and respect for the principle of proportionality.

5.

Fifth plea in law, alleging infringement of Article 107(1) TFEU: Manifest errors of assessment on the basis of insufficient consideration of the position under German tax law

The applicants submit in that regard that the Commission failed to have regard to the provisions of German tax law on deduction of losses.

6.

Sixth plea in law, alleging that there is a legitimate expectation under EU law

The applicants submit in this connection inter alia that the tax privileges in question upon acquisitions of interests together with deductions of losses were raised by the Commission for the first time in a formal investigation procedure and that this is an extraordinary situation, which is not discernible to the legislature, tax courts and the tax authorities and therefore is also not discernible to undertakings even if they have been thoroughly and competently advised.

4.2.2012   

EN

Official Journal of the European Union

C 32/35

Action brought on 5 December 2011 — VMS Deutschland v Commission

(Case T-613/11)

2012/C 32/71

Language of the case: German

Parties

Applicant: VMS Deutschland Holdings GmbH (Darmstadt, Germany) (represented by: D. Pohl, G. Burwitz, M. Maier and P. Werner, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the Commission of 26 January 2011, C(2011) 275 final, in the procedure on State aid C 7/2010 ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

—

order the defendant to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging absence of prima facie selectivity of the measure

The applicant submits in the context of the first plea inter alia that the provision in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) regarding the fiscal carry forward of losses by undertakings in difficulty, which are taken over by another undertaking with the objective of restructuring, is not selective. In the applicant’s view the provision does not constitute State aid for the purposes of Article 107(1) TFEU because it does not lay down any exception to the relevant reference system.

2.

Second plea in law, alleging that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is a general measure

In that regard the applicant submits inter alia that the technical differentiation on the basis of an undertaking’s economic position and ability to pay is a technical provision which, as a general measure, cannot come within the scope of Article 107(1) TFEU. In the applicant’s opinion such a provision, in the context of an overall economic assessment, is capable of benefiting all undertakings even if, at a particular point in time, only some undertakings are in fact in a position to actually use the provision.

3.

Third plea in law, alleging that the provision is justified on the basis of the nature and general scheme of the tax system

The applicant submits in this respect that the provision in Paragraph 8c(1a) of the KStG enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is justified on the basis of the nature and general scheme of the tax system and does not constitute State aid for the purposes of Article 107(1) TFEU for that reason also.

4.2.2012   

EN

Official Journal of the European Union

C 32/36

Action brought on 6 December 2011 — Royal Scandinavian Casino Århus AS v Commission

(Case T-615/11)

2012/C 32/72

Language of the case: Danish

Parties

Applicant: Royal Scandinavian Casino Århus AS I/S (Århus, Denmark) (represented by: B. Jacobi, lawyer)

Defendant: European Commission

Form of order sought

—

annul the Commission’s decision of 20.09.11 on the measure No C 35/2010 (ex N 302/2010) which Denmark is planning to implement in the form of duties for online gaming in the Danish Gaming Duties Act.

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the Commission incorrectly approved the aid on the basis of Article 107(3)(c) TFEU, on the grounds that:

—

Article 107(3)(c) TFEU does not allow for approval of aid to part of an economic area;

—

the aid does not fulfil the requirement in Article 107(3)(c) TFEU that it must facilitate the development of certain economic areas;

—

the aid affects trading conditions in a manner contrary to the common interest, and accordingly

—

the aid does not serve a properly documented purpose of European interest.

The applicant further submits that the exception in Article 107(3)(c) TFEU must be interpreted restrictively and that that provision does not allow for the grant of State aid on the basis of State financial considerations.

2.

Second plea in law, alleging that the Commission approved the aid contrary to the Court’s case-law on operating aid. The applicant submits that the aid in question, which is granted as permanent aid in the form of a tax reduction, amounts to operating aid which, according to settled case-law, cannot be approved in a case such as the present one.

3.

Third plea in law, alleging that the Commission infringed the proportionality principle, since the objectives of the Danish legislation can be achieved without State aid being granted.

4.

Fourth plea in law, alleging the Commission made an incorrect assessment in finding, incorrectly, that the aid is necessary in order to give incentive to online gaming providers to apply for a Danish licence.

5.

Fifth plea in law, alleging that the Commission misused its powers by referring to a Treaty provision which gives authority to approve aid intended to facilitate the development of an economic area, whilst, by contrast, it is apparent from the decision that the actual reason for approving the aid is the wish to attract a suitable number of applicants for a Danish online gaming licence. The applicant adds that the Commission misuses its powers when it gives as grounds for the approval the objective of liberalising and facilitating the development of an economic area, whilst the Danish State itself states that the overall objective of the tax scheme is to generate as much tax revenue as possible.

6.

Sixth plea in law, alleging that the Commission has failed to provide a sufficient statement of reasons, in that the reasons:

—

are generally inconsistent and self-contradictory on a number of points;

—

fail to provide a sufficient explanation as to how liberalisation of the gaming market is a legitimate purpose to pursue through approvals on the basis of Article 107(3)(c) TFEU;

—

do not give a satisfactory explanation of the Commission’s interpretation of Article 107(3)(c) TFEU;

—

do not document the need for State aid or give a sufficient account of taxation in other Member States;

—

lack clarity as to the objectives of the Danish Gaming Duties Act;

—

fail to address Danish legislation covering other forms of gaming;

—

contain no examination or explanation of the effects of the aid on land-based gaming operations.

4.2.2012   

EN

Official Journal of the European Union

C 32/37

Action brought on 5 December 2011 — Meyr-Melnhof Karton v OHIM — Stora Enso (SILVAWHITE)

(Case T-617/11)

2012/C 32/73

Language in which the application was lodged: English

Parties

Applicant: Meyr-Melnhof Karton AG (Vienna, Austria) (represented by: P. Baronikians and N. Wittich, lawyers)

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

Other party to the proceedings before the Board of Appeal: Stora Enso Oyj (Helsinki, Finland)

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 21 September 2011 in case R 2139/2010-2;

—

Reject the opposition against the Community trade mark application No 8197469; and

—

Order that the defendant pays the applicant’s costs incurred before OHIM and the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SILVAWHITE’, for goods in class 16 — Community trade mark application No 8197469

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: Finnish trade mark registration No 231953 of the word ‘SILVAPRESS’, for goods in class 16; International trade mark registration No 872793 of the word ‘SILVAPRESS’, for goods in class 16

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal wrongly ruled that likelihood of confusion exists between the earlier mark and the Community trade mark application.

4.2.2012   

EN

Official Journal of the European Union

C 32/37

Appeal brought on 2 December 2011 by Francesca Cervelli against the order of the Civil Service Tribunal of 12 September 2011 in Case F-98/10, Cervelli v Commission

(Case T-622/11 P)

2012/C 32/74

Language of the case: French

Parties

Appellant: Francesca Cervelli (Brussels, Belgium) (represented by J. García-Gallardo Gil-Fournier, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

—

Admit the appeal and declare it admissible;

—

Regard the appeal as having been brought in the name and for the benefit of Ms Francesca Cervelli by her legal representatives;

—

Declare the order delivered on 12 September 2011 by the Civil Service Tribunal void in its entirety;

—

Order the matter to be referred back to the Civil Service Tribunal for examination of the substance.

Pleas in law and main arguments

1.

In support of the appeal, the appellant relies on two pleas in law.

First plea in law, alleging a manifest error in the assessment of the facts, since the CST took the view that the appellant could not rely on the emergence of a new fact consisting in the judgment delivered by the General Court on 19 June 2007 in Case T-473/04 Asturias Cuerno v Commission, not published in the ECR. The appellant submits that that judgment constitutes a new fact, since the judgment concerns the same situation as that of the appellant and since the main part of the analysis in that judgment concerns an objective point and not facts particular to the case.

Second plea in law, alleging a manifest error in law, since the CST gave absolute priority to the discretion based on the principle of the autonomy of the Appointing Authority over the principle of unity of the civil service.

4.2.2012   

EN

Official Journal of the European Union

C 32/38

Action brought on 30 November 2011 — PICO Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE)

(Case T-623/11)

2012/C 32/75

Language in which the application was lodged: English

Parties

Applicant: PICO Food GmbH (Tamm, Germany) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bogumit Sobieraj (Milanówek, Poland)

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 8 September 2011 in case R 553/2010-1;

—

Order the defendant to bear the costs of the proceedings.

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 figurative mark ‘MILANÓWEK CREAM FUDGE’, for goods in class 30 — Community trade mark application No 6342455

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

Mark or sign cited in opposition: German trade mark registration No 30522224 of the figurative mark representing a cow, for goods in class 30; German trade mark registration No 30523439 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702751 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702748 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30700574 of the figurative mark ‘SAHNE TOFFEE LUXURY CREAM FUDGE’, for goods in class 30

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal misinterpreted the general principles laid down by the European Courts and denied the existence of likelihood of confusion between the opposition trademarks and the contested application. Infringement of Article 76(1) of Council Regulation No 207/2009, as the Board of Appeal based the decision on facts which have not been forwarded by the parties to the proceedings.

4.2.2012   

EN

Official Journal of the European Union

C 32/38

Action brought on 30 November 2011 — Yueqing Onesto Electric v OHIM — Ensto (ONESTO)

(Case T-624/11)

2012/C 32/76

Language in which the application was lodged: English

Parties

Applicant: Yueqing Onesto Electric Co. Ltd (Zhejiang, China) (represented by: B. Piepenbrink, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ensto Oy (Porvoo, Finland)

Form of order sought

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2011 in case R 2535/2010-2; and

—

Order that the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ONESTO’, for goods in class 9 — Community trade mark application No W00909305

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: Community trade mark registration No 1980242 of the figurative mark ‘ENSTO’, for goods in classes 7, 9 and 11; Community trade mark registration No 40600 of the word mark ‘ENSTO’, for goods in classes 7, 9, 11 and 16; Finish trade mark registration No 218071 of the word mark ‘ENSTO’, for goods in classes 7, 9 and 11

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

Decision of the Board of Appeal: Annulled the contested decision and rejected the community trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erroneously found that there exists a likelihood of confusion between the earlier mark and the Community trade mark application.

4.2.2012   

EN

Official Journal of the European Union

C 32/39

Action brought on 2 December 2011 — BSH v OHIM (ecodoor)

(Case T-625/11)

2012/C 32/77

Language of the case: German

Parties

Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by S. Biagosch, lawyer)

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

Form of order sought

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 September 2011 in Case R 340/2011-1;

—

Order OHIM to bear its own costs and to pay the costs of the applicant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘ecoDoor’ for goods in Classes 7, 9 and 11

Decision of the Examiner: Refusal of registration.

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, since the Community mark concerned is distinctive and not purely descriptive.

4.2.2012   

EN

Official Journal of the European Union

C 32/39

Action brought on 6 December 2011 — Caventa v OHIM — Anson’s Herrenhaus (B BERG)

(Case T-631/11)

2012/C 32/78

Language in which the application was lodged: German

Parties

Applicant: Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, 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) (OHIM) of 15 September 2011 in Case R 2014/2010-1;

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Figurative mark containing the word element ‘B BERG’ for goods in Classes 25 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld and registration refused.

Pleas in law: There is no similarity between the goods at issue and no likelihood of confusion of the signs at issue.

4.2.2012   

EN

Official Journal of the European Union

C 32/40

Action brought on 8 December 2011 — Guangdong Kito Ceramics and Others v Council

(Case T-633/11)

2012/C 32/79

Language of the case: English

Parties

Applicants: Guangdong Kito Ceramics Co. Ltd (Foshan, China), Jingdezhen Kito Ceramic Co. Ltd (Jingdezhen, China), Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd (Jingdezhen, China) and Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd (Sihui, China) (represented by: M. Sánchez Rydelski, lawyer)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1), in so far as it concerns the applicants; and

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the defendant has committed a manifest error in the interpretation and application of Article 18 of Council Regulation (EC) No 1225/2009 (1).

2.

Second plea in law, alleging that the contested regulation is lacking sufficient reasoning.

3.

Third plea in law, alleging that the procedure leading up to the contested regulation was not in compliance with general principles of EU law, such as the principle of sound administration, transparency and with the right of defence of the applicants and infringed upon Article 18(4) of the Council Regulation (EC) No 1225/2009.

(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).

4.2.2012   

EN

Official Journal of the European Union

C 32/40

Appeal brought on 9 December 2011 by Mario Paulo da Silva Tenreiro against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-72/10, da Silva Tenreiro v Commission

(Case T-634/11 P)

2012/C 32/80

Language of the case: French

Parties

Appellant: Mario Paulo da Silva Tenreiro (Kraainem, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Other party to the proceedings: European Commission.

Form of order sought by the appellant

The applicant claims that the Court should:

—

Annul the judgment of the Civil Service Tribunal of 29 September 2011 (Case F-72/10 da Silva Tenreiro v Commission) dismissing the action of the applicant,

—

Annul the decision of the European Commission rejecting the applicant’s application for the vacant post of Director of Directorate E ‘Justice’ in Directorate General (DG) Justice, Freedom and Security and the decision appointing Ms K to that post.

Pleas in law and main arguments

In support of the appeal, the appellant relies on four pleas in law.

1.

First plea in law, alleging an error of law in that the Tribunal should have dismissed the plea alleging a misuse of power in spite of serious indications of such misuse relied on by the applicant, whereas the Court should reverse the burden of proof in order to comply with the principle of equality of arms in proceedings before the Tribunal

2.

Second plea in law, alleging disregard for the equality of arms of the parties by refusing to order the production, among others, of Ms K’s staff report for the period in which she exercised the function of director in Directorate ‘Security’ in DG ‘Justice, Freedom and Security’, whereas the Appointing Authority justifies the rejection of her application for that post by a plausible inaptitude in the light of her performance as acting director, while taking the view that she may be appointed to the post of director in Directorate ‘Justice’ in the same DG in the light of that same experience as director.

3.

Third plea in law, alleging distortion and misrepresentation of the facts in that the CST should have concluded that the two appeal procedures for the post of director (‘Justice’ and ‘Security’) were separate and that the outcome of one of those procedures has not influenced the outcome of the other.

4.

Fourth plea in law alleging infringement of the rule that the parties should be heard, breach of the rights of the defence and of the duty to state reasons in that the CST failed to make reference to the manifest error of assessment raised by the applicant at the hearing, based on the evaluation grid of the pre-selection board which the applicant became aware of in the annex to the defence, since the CST held that there was no need for a second exchange of pleadings.

4.2.2012   

EN

Official Journal of the European Union

C 32/41

Action brought on 9 December 2011 — Regency Entertainment Psychagogiki kai Touristiki v Commission

(Case T-635/11)

2012/C 32/81

Language of the case: English

Parties

Applicant: Regency Entertainment Psychagogiki kai Touristiki AE (Maroussi Attikis, Greece) (represented by: N. Niejahr, Q. Azau, F. Spyropoulos, I. Dryllerakis, K. Spyropoulos, lawyers, and F. Carlin, Barrister)

Defendant: European Commission

Form of order sought

—

Annul Commission Decision 2011/716/EU of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25);

—

In the alternative, annul the contested decision to the extent it applies to the applicant; or

—

Further in the alternative, annul the contested decision in so far as it orders the recovery of amounts from the applicant; and

—

Order the defendant to pay its own costs and the applicant’s costs in connection with these proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the defendant violated Article 107(1) TFEU in determining that the measure at stake constituted an aid measure by:

—

identifying that the applicant benefited from an economic advantage in the form of a ‘fiscal discrimination’ in the amount of Euro 7,20 per Ticket;

—

finding that the measure involved forgone State resources;

—

considering that the measure was selective in favour of the applicant; and

—

concluding that the measure distorted competition and had an effect on trade between Member States.

2.

Second plea in law, alleging that the defendant violated the applicant’s procedural right of defence by completely ignoring the applicant’s Observations and Additional Comments submitted by the applicant in the exercise of its procedural rights following the Opening Decision.

3.

Third plea in law, alleging that the defendant violated Article 296 TFEU by failing to provide adequate reasoning to enable the applicant to understand and this Court to review the reasoning based on which it found that the applicant benefited from a selective advantage, that any such advantage involved forgone State revenues and would be liable to distort competition and affect trade between Member States.

4.

Fourth plea in law, alleging that in so far as the contested decision orders recovery of amounts from the applicant it violates:

—

Article 14(1), first sentence, of Council Regulation (EC) No 659/1999 (1), pursuant to which recovery shall relate to the aid received by the beneficiary, since the defendant failed to correctly quantify in the contested decision the amount of aid that the applicant may have received; and

—

Article 14(1), second sentence, of Council Regulation (EC) No 659/1999, since recovery in this case infringes general principles of EU law, namely: the principle of legitimate expectations; the principle of legal certainty; and the principle of proportionality.

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

4.2.2012   

EN

Official Journal of the European Union

C 32/41

Action brought on 15 December 2011 — Euris Consult v Parliament

(Case T-637/11)

2012/C 32/82

Language of the case: English

Parties

Applicant: Euris Consult Ltd (Floriana, Republic of Malta) (represented by: F. Moyse, lawyer)

Defendant: European Parliament

Form of order sought

—

Annul the decision of the Directorate-General for Translation of the European Parliament taken in the framework of call for tenders MT/2011/EU, concerning provision of translation services into Maltese, rejecting at the opening the offer submitted by the applicant for breach of confidentiality;

—

order the defendant to pay the costs of the proceedings, including those incurred by the applicant;

—

order that the applicant be permitted to seek damages for harm caused by the contested decision.

Pleas in law and main arguments

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

1.

First plea in law, alleging

—

violation of Article 98, paragraph 1, of the Financial Regulation, Article 143 of the Implementing Rules and Article 2.4 of call for tenders MT/2011/EU, and thus the inapplicability exception under Article 277 TFEU;

2.

Second plea in law, alleging

—

violation of the principle of proportionality;

3.

Third plea in law, alleging

—

violation of the principle of equal treatment;

4.

Fourth plea in law, alleging

—

violation of Article 41 of the Charter of Fundamental Rights of the European Union, in that the contracting authority failed to hear the applicant before adopting the contested decision;

5.

Fifth plea in law, alleging

—

that the contested decision was not sufficiently reasoned.

4.2.2012   

EN

Official Journal of the European Union

C 32/42

Order of the General Court of 2 December 2011 — Bard v OHIM — Braun Melsungen (PERFIX)

(Case T-342/09) (1)

2012/C 32/83

Language of the case: English

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

(1)  OJ C 256, 24.10.2009.

European Union Civil Service Tribunal

4.2.2012   

EN

Official Journal of the European Union

C 32/43

Judgment of the Civil Service Tribunal (First Chamber) of 13 December 2011 — Stols v Council

(Case F-51/08 RENV) (1)

(Civil service - Officials - Referral back to the Tribunal after setting aside - Promotion - 2007 promotion exercise - Consideration of comparative merits - Manifest error of assessment - No manifest error - Grounds for the decision - Supererogatory ground - Inoperative plea)

2012/C 32/84

Language of the case: French

Parties

Applicant: Willem Stols (Halsteren, Netherlands) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer, agent)

Re:

Annulment of the decision of the appointing authority not to include the applicant’s name on the list of officials promoted to grade AST 11 for the 2007 promotion exercise.

Operative part of the judgment

The Tribunal:

1.

Dismisses the action brought by Mr Stols;

2.

Orders Mr Stols to bear his own costs and to pay those of the Council of the European Union in Case F-51/08.

3.

Orders Mr Stols and the Council of the European Union each to bear their own costs in Case T-175/09 and in the present case.

(1)  OJ C 183, 19.7.2008, p. 34.

4.2.2012   

EN

Official Journal of the European Union

C 32/43

Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — de Fays v Commission

(Case F-30/10) (1)

(Civil service - Officials - Social security - Insurance against occupational diseases and accidents - Article 73 of the Staff Regulations - Refusal to recognise the occupational origin of a disease)

2012/C 32/85

Language of the case: French

Parties

Applicant: Philippe de Fays (Malèves-Sainte-Marie-Wastines, Belgium) (represented by: N. Soldatos, then by N. Soldatos and C. Eyben, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, agents, and by J.-L. Fagnart, lawyer)

Re:

Action to annul the decision refusing to recognise the occupational origin of the disease suffered by the applicant.

Operative part of the judgment

The Tribunal:

1.

dismisses the action brought by Mr de Fays;

2.

orders Mr de Fays to pay all the costs.

(1)  OJ C 179 of 03.07.10, p. 59.

4.2.2012   

EN

Official Journal of the European Union

C 32/43

Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — Sabbag Afota v Council

(Case F-9/11) (1)

(Civil service - Officials - Reports - Promotion - 2010 promotion exercise - No staff report)

2012/C 32/86

Language of the case: French

Parties

Applicant: Verónica Sabbag Afota (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer and K. Zieleśkiewicz, agents)

Re:

Action to annul the decision of the appointing authority not to promote the applicant to grade AD 11 in the 2010 promotion exercise.

Operative part of the judgment

The Tribunal:

1.

Dismisses the action brought by Ms Sabbag Afota;

2.

Orders Ms Sabbag Afota to bear her own costs and to pay the costs of the Council of the European Union.

(1)  OJ C 152 of 21.05.11, p. 33.