This document is an excerpt from the EUR-Lex website
Document C:2011:113:FULL
Official Journal of the European Union, C 113, 9 April 2011
Official Journal of the European Union, C 113, 9 April 2011
Official Journal of the European Union, C 113, 9 April 2011
Display all documents published in this Official Journal
- Date of document:
- 09/04/2011
- Author:
- An tAontas Eorpach
- Form:
- Iris Oifigiúil
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ISSN 1725-2423 doi:10.3000/17252423.C_2011.113.eng |
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Official Journal of the European Union |
C 113 |
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Information and Notices |
Volume 54 |
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IV Notices |
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NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
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Court of Justice of the European Union |
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2011/C 113/01 |
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IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
Court of Justice of the European Union
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9.4.2011 |
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Official Journal of the European Union |
C 113/1 |
2011/C 113/01
Last publication of the Court of Justice of the European Union in the Official Journal of the European Union
Past publications
These texts are available on:
EUR-Lex: http://eur-lex.europa.eu
V Announcements
COURT PROCEEDINGS
Court of Justice
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/2 |
Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 24 December 2010 — Südzucker AG v Hauptzollamt Hamburg-Jonas
(Case C-608/10)
2011/C 113/02
Language of the case: German
Referring court
Finanzgericht Hamburg
Parties to the main proceedings
Applicant: Südzucker AG
Defendant: Hauptzollamt Hamburg-Jonas
Questions referred
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1. |
Is the holder of an export licence entitled to an export refund (Article 5(7) of Regulation No 800/1999) (1) only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office? |
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2. |
If the answer to the first question is in the affirmative: Does Article 78(1) and (3) of the Customs Code (2) allow post-clearance revision of the export declaration in order to change the exporter in box 2 of the export declaration, and are the customs authorities obliged in a case such as that in the main proceedings to regularise the situation and to grant the export refund? |
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If the answer to the second question is in the affirmative: Can the customs authorities directly regularise the situation described in Article 78(3) of the Customs Code in such a way that the exporter can be granted the export refund, without the need for prior correction of the export declaration? |
(1) Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, OJ 1999 L 102, p. 11.
(2) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L 302, p. 1.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/2 |
Reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany) lodged on 6 January 2011 — Johann Bilker and Others v EWE AG
(Case C-8/11)
2011/C 113/03
Language of the case: German
Referring court
Oberlandesgericht Oldenburg
Parties to the main proceedings
Appellants: Johann Bilker and Others
Respondent: EWE AG
Questions referred
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1. |
Is Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) to be interpreted as meaning that statutory or regulatory provisions are not subject to the provisions of that directive even in the case where a seller or supplier refers in his contractual terms and conditions to statutory or regulatory provisions which were adopted in respect of a different consumer group and a different type of contract? If the directive is not applicable, does that exclusion of its application also extend to the requirement of plainness and intelligibility contained in Article 5? |
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Are the first sentence of Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and the fourth sentence of Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 (2) concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to be interpreted as meaning that there is no ‘plain and intelligible term’ or that ‘high levels of consumer protection, particularly with respect to transparency regarding general contractual terms and conditions’ are not ensured if a seller or supplier seeks to justify a unilateral right to vary prices with the argument that he refers globally, in his general terms and conditions, to a national regulation which was adopted in respect of a different consumer group and a different type of contract and in which, moreover, the provision relevant to the right to vary prices does not satisfy the requirement of transparency? |
(2) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/3 |
Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 12 January 2011 — Leopold Sommer v Landesgeschäftsstelle des Arbeitsmarktservice Wien
(Case C-15/11)
2011/C 113/04
Language of the case: German
Referring court
Verwaltungsgerichtshof
Parties to the main proceedings
Applicant: Leopold Sommer
Defendant: Landesgeschäftsstelle des Arbeitsmarktservice Wien
Questions referred
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1. |
Is Council Directive 2004/114/EC (1) of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (‘the Student Directive’) applicable in Austria to a Bulgarian student having regard to the first or third paragraphs of point 14 of section 1 (Freedom of movement for persons) of Annex VI to the Accession Treaty for Bulgaria, List referred to in Article 20 of the Protocol (2): transitional measures, Bulgaria? |
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If Question 1 is answered in the affirmative: Does Union law, in particular Article 17 of the Student Directive, preclude a national rule which, like the provisions of the Ausländerbeschäftigungsgesetz which are relevant in the main proceedings, provides in all cases for an examination of the situation of the labour market prior to the grant of a work permit for an employer to employ a student who has already resided in Austria for more than one year (Article 17(3) of the Student Directive) and additionally makes the grant of a work permit subject to further conditions if the fixed maximum number of foreign nationals employed has been exceeded. |
(2) Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union — Annex VI: List referred to in Article 20 of the Protocol: transitional measures, Bulgaria — 2. Freedom of movement for persons; (OJ 2005 L 157, p. 104).
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/3 |
Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 January 2011 — Markus Geltl v Daimler AG
(Case C-19/11)
2011/C 113/05
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Applicant: Markus Geltl
Defendant: Daimler AG
Questions referred
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1. |
For the purposes of applying Article 1(1) of Directive 2003/6/EC (1) and Article 1(1) of Directive 2003/124/EC, (2) is account to be taken, in the case of a protracted process intended, over the course of a number of intermediate steps, to bring about a particular circumstance or to generate a particular event, only of whether that future circumstance or future event is to be regarded as precise information within the meaning of those provisions of the directive, meaning that it must be examined whether that future circumstance or future event may reasonably be expected to occur, or, in the case of a protracted process of this kind, can intermediate steps which already exist or have already occurred and which are connected with bringing about the future circumstance or event also constitute precise information within the meaning of the aforementioned provisions of the directive? |
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Does reasonable expectation within the meaning of Article 1(1) of Directive 2003/124/EC require that the probability be assessed as predominant or high, or does the reference to circumstances which may reasonably be expected to come into existence or events which may reasonably be expected to occur imply that the degree of probability depends on the extent of the effects on the issuer and that, where prices are highly likely to be affected, it is sufficient if the occurrence of the future circumstance or event is uncertain but not improbable? |
(1) Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse); OJ L 96, 12.4.2003, p. 16.
(2) Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation (Text with EEA relevance); OJ 2003 L 339, p. 70.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/4 |
Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 17 January 2011 — Fleischkontor Moksel GmbH v Hauptzollamt Hamburg-Jonas
(Case C-23/11)
2011/C 113/06
Language of the case: German
Referring court
Finanzgericht Hamburg
Parties to the main proceedings
Applicant: Fleischkontor Moksel GmbH
Defendant: Hauptzollamt Hamburg-Jonas
Questions referred
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1. |
Is the holder of an export licence entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office (Article 5(1) of Regulation No 800/1999)? (1) |
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If Question 1 is answered in the affirmative: Is the Hauptzollamt (Principal Customs Office) which is responsible for paying the refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration? |
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If Question 2 is answered in the negative: Is the office responsible for paying the refund entitled, in circumstances such as those of the main proceedings, to take the words in box 2 of the export declaration literally and to refuse an application for an export refund on the ground that the applicant for the refund is not the exporter of the goods covered by that application, or is the responsible office obliged, when there is a contradiction between the description of the exporter in box 2 of the export declaration and the previous document to which reference is made in box 40 and/or the holder of the export licence registered in box 44, to consult the applicant for a refund and, if necessary, to amend of its own motion the words in box 2 of the export declaration? |
(1) Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, OJ 1999 L 102, p. 11.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/4 |
Reference for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 17 January 2011 — Belgische Petroleum Unie VZW and Others v Belgische Staat
(Case C-26/11)
2011/C 113/07
Language of the case: Dutch
Referring court
Grondwettelijk Hof
Parties to the main proceedings
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Applicants |
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Belgische Petroleum Unie VZW and Others |
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Defendant |
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Belgische Staat |
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Interveners |
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Questions referred
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1. |
Should Articles 3, 4 and 5 of Directive 98/70/EC (1) of the European Parliament and of the Council of 13 October 1998‘relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC’ as well as, where appropriate, Article 4(3) of the Treaty on European Union and Articles 26(2), 28 and 34 to 36 of the Treaty on the Functioning of the European Union be interpreted as precluding a statutory provision on the basis of which every registered petroleum company which releases petrol products and/or diesel products for consumption is also obliged in the same calendar year to make available for consumption a quantity of sustainable biofuels, namely bio ethanol, pure or in the form of bio ETBE, amounting to at least 4 % vol/vol of the quantity of petrol products released for consumption, and FAME amounting to at least 4 % vol/vol of the quantity of diesel products released for consumption? |
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If the first question referred for a preliminary ruling is answered in the negative, should Article 8 of Directive 98/34/EC (2) of the European Parliament and of the Council (of 22 June 1998) ‘laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services’, notwithstanding Article 10(1), first indent, of the same Directive, be interpreted as imposing an obligation that the Commission be notified of a draft standard on the basis of which every registered petroleum company which releases petrol products and/or diesel products for consumption is also obliged in the same calendar year to make available for consumption a quantity of sustainable biofuels, namely bio-ethanol, pure or in the form of bio-ETBE, amounting to at least 4 % vol/vol of the quantity of petrol products released for consumption, and FAME amounting to at least 4 % vol/vol of the quantity of diesel products released for consumption? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/5 |
Reference for a preliminary ruling from the Tribunalul Suceava (Romania) lodged on 17 January 2011 — Aurora Elena Sfichi v Direcția Generală a Finanțelor Publice Suceava — Administrația Finanțelor Publice Suceava, Administrația Fondului Pentru Mediu
(Case C-29/11)
2011/C 113/08
Language of the case: Romanian
Referring court
Tribunalul Suceava
Parties to the main proceedings
Applicant: Aurora Elena Sfichi
Defendants: Direcția Generală a Finanțelor Publice Suceava — Administrația Finanțelor Publice Suceava, Administrația Fondului Pentru Mediu
Questions referred
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1. |
Does the first paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 of the Treaty establishing the European Community), under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, preclude a Member State from introducing a tax with the characteristics of the pollution tax governed by Government Emergency Order No 50/2008, as subsequently amended and supplemented, which is levied upon the first registration in Romania of second-hand imported motor vehicles which have previously been registered in other Member States, account being taken of the fact that that tax is not applied to second-hand motor vehicles registered in Romania where they are the object of certain transactions and are re-registered? |
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Does the second paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 of the Treaty establishing the European Community), which is intended to eliminate factors liable to protect the national market and to breach the principles of competition, preclude the establishment of a pollution tax for motor vehicles which is levied upon the first registration in Romania of second-hand imported motor vehicles which have previously been registered in other Member States, account being taken of the fact that exemption from payment of the pollution tax was granted under Government Emergency Order No 218/2008 for motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, and all motor vehicles in category N1 and pollution class Euro 4, which were registered for the first time in Romania or in another Member State of the European Union between 15 December 2008 and 31 December 2009 inclusive, that is to say, for the category of motor vehicle which possesses the technical characteristics of the motor vehicles manufactured in Romania, thus favouring the domestic motor vehicle manufacturing industry? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/5 |
Reference for a preliminary ruling from the Tribunalul Suceava (Romania) lodged on 17 January 2011 — Adrian Ilaș v Direcția Generală a Finanțelor Publice Suceava — Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu
(Case C-30/11)
2011/C 113/09
Language of the case: Romanian
Referring court
Tribunalul Suceava
Parties to the main proceedings
Applicant: Adrian Ilaș
Defendants: Direcția Generală a Finanțelor Publice Suceava — Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu
Questions referred
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1. |
Does the first paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 of the Treaty establishing the European Community), under which no Member State may impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products, preclude a Member State from introducing a tax with the characteristics of the pollution tax governed by Government Emergency Order No 50/2008, as subsequently amended and supplemented, which is levied upon the first registration in Romania of second-hand imported motor vehicles which have previously been registered in other Member States, account being taken of the fact that that tax is not applied to second-hand motor vehicles registered in Romania where they are the object of certain transactions and are re-registered? |
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2. |
Does the second paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 of the Treaty establishing the European Community), which is intended to eliminate factors liable to protect the national market and to breach the principles of competition, preclude the establishment of a pollution tax for motor vehicles which is levied upon the first registration in Romania of second-hand imported motor vehicles which have previously been registered in other Member States, account being taken of the fact that exemption from payment of the pollution tax was granted under Government Emergency Order No 218/2008 for motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, and all motor vehicles in category N1 and pollution class Euro 4, which were registered for the first time in Romania or in another Member State of the European Union between 15 December 2008 and 31 December 2009 inclusive, that is to say, for the category of motor vehicle which possesses the technical characteristics of the motor vehicles manufactured in Romania, thus favouring the domestic motor vehicle manufacturing industry? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/6 |
Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 January 2011 — Marianne Scheunemann v Finanzamt Bremerhaven
(Case C-31/11)
2011/C 113/10
Language of the case: German
Referring court
Bundesfinanzhof
Parties to the main proceedings
Applicant: Marianne Scheunemann
Defendant: Finanzamt Bremerhaven
Question referred
Must Article 56(1) of the Treaty establishing the European Community, in conjunction with Article 58 thereof, be interpreted as precluding legislation of a Member State which, for the purposes of calculating the inheritance tax on an estate, provides that account be taken of the entire value of a shareholding, forming part of private assets, as a sole shareholder in a capital company with its registered office and principal place of business in Canada, whereas where such a shareholding in a capital company with its registered office or principal place of business in Germany is acquired a tax free amount is granted and only 65 % of the remaining value is taken into account?
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/6 |
Reference for a preliminary ruling from the Conseil d’État (Belgium), lodged on 26 January 2011 — Inter-Environnement Wallonie ASBL, Terre wallonne ASBL v Région wallonne
(Case C-41/11)
2011/C 113/11
Language of the case: French
Referring court
Conseil d’État
Parties to the main proceedings
Applicants: Inter-Environnement Wallonie ASBL, Terre wallonne ASBL
Defendant: Région wallonne
Question referred
Can the Conseil d’État,
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seised of an action seeking the annulment of the decree of the Government of Wallonia of 15 February 2007 amending Book II of the Environment Code, which forms the Water Code, as regards the sustainable management of nitrogen in agriculture, |
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finding that that decree was adopted without compliance with the procedure prescribed by Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (1) and that it is, for that reason, contrary to the law of the European Union and must be annulled, |
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but finding at the same time that the contested decree provides for an appropriate implementation of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, (2) |
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defer in time the effects of the judicial annulment for a short period necessary for the redrafting of the annulled measure in order to maintain in European Union environmental law a degree of specific implementation without any break in continuity? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/7 |
Reference for a preliminary ruling from the Tribunale Ordinario Di Milano (Italy) lodged on 31 January 2011 — Criminal proceedings against Assane Samb
(Case C-43/11)
2011/C 113/12
Language of the case: Italian
Referring court
Tribunale Ordinario Di Milano
Defendant in the criminal proceedings
Assane Samb
Question referred
In the light of the principles of sincere cooperation and of the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude the possibility that a third-country national illegally staying in a Member State may be sentenced to a term of imprisonment of up to four years where he fails to comply with the first order issued by the Questore and a term of imprisonment of up to five years for failure to comply with subsequent orders (with the corresponding obligation for the police authorities to arrest those engaged in the commission of this offence) simply on account of his lack of cooperation in the deportation procedure, in particular his simple failure to comply with a removal order issued by the administrative authorities?
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/7 |
Reference for a preliminary ruling from the Judecătoria Timișoara (Romania) lodged on 2 February 2011 — SC Volksbank România SA v Autoritatea Națională Pentru Protecția Consumatorilor CRPC ARAD TIMIȘ
(Case C-47/11)
2011/C 113/13
Language of the case: Romanian
Referring court
Judecătoria Timișoara
Parties to the main proceedings
Applicant: SC Volksbank România SA
Defendant: Autoritatea Națională Pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Comsumatorilor (CRPC) ARAD TIMIȘ
Questions referred
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1. |
Is Article 30(1) of Directive 2008/48 (1) to be interpreted as precluding Member States from providing that national legislation transposing that directive is also to apply to agreements concluded before that national legislation entered into force? |
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2. |
Is Article 22(1) of Directive 2008/48 to be interpreted as establishing the maximum level of harmonisation in the field of consumer credit agreements, by virtue of which Member States may not:
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If Question (2) is answered in the negative, are the principles of freedom to provide services and the free movement of capital to be interpreted as precluding a Member State from imposing measures on credit institutions under which they may not, in consumer credit agreements, apply bank charges which are not on the list of permitted charges, unless those permitted charges have been defined in the legislation of the State concerned? |
(1) Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/7 |
Reference for a preliminary ruling from the Tribunale di Ivrea (Italy) lodged on 4 February 2011 — Criminal proceedings against Lucky Emegor
(Case C-50/11)
2011/C 113/14
Language of the case: Italian
Referring court
Tribunale di Ivrea
Party to the main proceedings
Lucky Emegor
Question referred
In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude a third-country national staying unlawfully in national territory from being sentenced to a term of imprisonment of up to four years in the event of failure to comply with the initial order issued by the Questore for removal from national territory within five days of notification, and a term of between one and five years’ imprisonment for failure to comply with subsequent orders, with the police authorities under an obligation to arrest those engaged in the commission of this offence, solely on account of his failure to cooperate in the deportation procedure and in particular failure to comply with the removal order issued by the administrative authorities?
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/8 |
Reference for a preliminary ruling from the Tribunale di Ragusa (Italy) lodged on 9 February 2011 — Criminal proceedings against Mohamed Mrad
(Case C-60/11)
2011/C 113/15
Language of the case: Italian
Referring court
Tribunale di Ragusa
Party/parties to the main proceedings
Mohamed Mrad
Question referred
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1. |
Is Directive 2008/115/EC (1) to be regarded as directly applicable within the domestic law of the Italian State with effect from 25 December 2010? |
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Is Article 14(5)(b) and (5)(c) of Legislative Decree No 286/98, as subsequently amended, incompatible with Articles 15 and 16 of the directive referred to above, with the effect that this court is obliged to disapply the domestic legislation in question? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/8 |
Reference for a preliminary ruling from the Corte D’Appello Di Trento (Italy) lodged on 10 February 2011 — Criminal proceedings against Hassen El Dridi alias Karim Soufi
(Case C-61/11)
2011/C 113/16
Language of the case: Italian
Referring court
Corte D’Appello Di Trento
Party to the main proceedings
Hassen El Dridi, alias Karim Soufi
Questions referred
In the light of the principle of sincere cooperation, the purpose of which is to ensure the attainment of the objectives of the directive, and the principle that the penalty must be proportionate, appropriate and reasonable, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude:
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1. |
the possibility that criminal sanctions may be imposed in respect of a breach of an intermediate stage in the administrative return procedure, before that procedure is completed, by having recourse to the most severe administrative measure of constraint which remains available? |
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the possibility of a sentence of up to four years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with? |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/8 |
Action brought on 11 February 2011 — European Commission v Kingdom of Spain
(Case C-64/11)
2011/C 113/17
Language of the case: Spanish
Parties
Applicant: European Commission (represented by: R. Lyal and J. Baquero Cruz, acting as Agents)
Defendant: Kingdom of Spain
Form of order sought
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declare that, by adopting Article 17(1) of Royal Legislative Decree 4/2004 of 5 March approving the consolidated text of the Law on Corporation Tax, the Kingdom of Spain has failed to comply with its obligations under Article 49 of the Treaty on the Functioning of the European Union and Article 31 of the Agreement on the European Economic Area; |
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order the Kingdom of Spain to pay the costs. |
Pleas in law and main arguments
The provision at issue introduces special treatment for unrealised capital gains on assets of companies that transfer their residence to another Member State of the European Union, cease their activity in Spain in order to continue it in another Member State or transfer their activities to another Member State. In those cases, Spain taxes the unrealised capital gains at the time of exit, so that the affected companies must settle a tax debt in respect of unrealised and hypothetical revenues which may never be realised. That regime amounts to an exception to the normal rule according to which tax is levied on revenue actually obtained by the taxable person during the taxable period.
The Commission submits that that aspect of the Spanish legislation is incompatible with the TFEU and with the EEA Agreement, since it is a discriminatory measure, and in any event a disproportionate restriction on the freedom of establishment. The Spanish rule could discourage movements of companies or assets which would result in a better distribution of economic resources.
The Commission considers that companies must have the right to transfer their registered office or individual assets to another Member State without being subject to excessively complex and onerous procedures. According to the Commission, there is no justification for the immediate charging of taxes on unrealised capital gains when a Spanish company is transferred to another Member State or when a permanent establishment ceases activity in Spain or transfers its assets from Spain to another Member State, if that kind of taxation is not found in comparable national situations.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/9 |
Action brought on 21 February 2011 — European Commission v Republic of Finland
(Case C-74/11)
2011/C 113/18
Language of the case: Finnish
Parties
Applicant: European Commission (represented by I. Koskinen and D. Triantafyllou, acting as Agents)
Defendant: Republic of Finland
Form of order sought
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declare that, by allowing persons other than taxable persons to join a value added tax group and by limiting the group registration system to providers of finance and insurance services, the Republic of Finland has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1) |
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order the Republic of Finland to pay the costs. |
Pleas in law and main arguments
Article 11 of Directive 2006/112/EC on the common system of value added tax allows Member States to treat as a single taxable person several persons who, while legally independent, are closely bound to one another by financial, economic and organisational links. Article 9(1) of the directive defines ‘taxable person’ for the purposes of value added tax.
The Commission submits that Directive 2006/112/EC does not allow persons who are not taxable persons to be included in a value added tax group and the rights and obligations of taxable persons thereby to be extended to non-taxable persons. The Finnish legislation which allows the inclusion of non-taxable persons in value added tax groups is therefore in conflict with the directive. The Commission’s interpretation is also consistent with the objective of Article 11 of simplifying administration and preventing abuse.
The group registration laid down in the Finnish legislation is also contrary to Article 11 of Directive 2006/112/EC in so far as the Finnish value added tax legislation limits the scope of group registration to undertakings active in the finance and insurance sector. The Commission submits that the group registration system should be applicable to all undertakings established in a Member State, regardless of the kind of activity the undertaking carries on. The common system of value added tax is a uniform system, and if a special arrangement is brought into use within that system the principle is that the arrangement must be generally applicable. Nothing in the wording of Article 11 of Directive 2006/112/EC indicates that a Member State may limit the application of the value added tax group registration system to certain groups active in certain sectors. Also on the basis of the objective of Article 11, the provision must be interpreted as concerning all undertakings regardless of sector. By limiting group registration to certain groups, the provisions of the Finnish value added tax legislation are also in conflict with the general European Union law principle of equal treatment.
General Court
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/10 |
Judgment of the General Court of 3 March 2011 — Siemens v Commission
(Case T-110/07) (1)
(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market sharing - Effects within the common market - Concept of continuous infringement - Duration of the infringement - Limitation period - Fines - Proportionality - Aggravating circumstances - Role of leader - Mitigating circumstances - Cooperation)
2011/C 113/19
Language of the case: German
Parties
Applicant: Siemens (Berlin and Munich, Germany) (represented: initially by I. Brinker, T. Loest and C. Steinle, and subsequently by I. Brinker and C. Steinle, lawyers)
Defendant: European Commission (represented: initially by F. Arbault and O. Weber, and subsequently by X. Lewis and R. Sauer, and lastly by R. Sauer and A. Antoniadis, Agents)
Re:
Partial annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) and, in the alternative, a reduction in the amount of fine imposed on the applicant.
Operative part of the judgment
The Court:
|
1. |
Dismisses the application; |
|
2. |
Orders Siemens to pay the costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/10 |
Judgment of the General Court of 3 March 2011 — Areva and Others v Commission
(Cases T-117/07 and T-121/07) (1)
(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Rights of the defence - Duty to state the reasons on which the decision is based - Whether answerable for the infringement - Duration of the infringement - Fines - Joint and several liability for payment of a fine - Aggravating circumstances - Role of leader - Mitigating circumstances - Cooperation)
2011/C 113/20
Language of the case: French
Parties
Applicants: Areva, société anonyme, established in Paris (France); Areva T&D Holding SA; established in Paris, Areva T&D SA; established in Paris; Areva T&D AG, established in Oberentfelden (Switzerland) (represented by: A. Schild and J.-M. Cot, lawyers); and Alstom, société anonyme, (Levallois-Perret, France), (represented initially by J. Derenne, lawyer, W. Broere, Solicitor, A. Müller-Rappard and C. Guirado, lawyers, and then by J. Derenne and A. Müller-Rappard, lawyers)
Defendant: European Commission (represented by: initially by X. Lewis and F. Arbault, then by X. Lewis, and finally by V. Bottka and N. Von Lingen, acting as Agents)
Re:
Partial annulment of Commission Decision C(2006) 6762 Final of 24 January 2007, relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/F/38.899 — Gas Insulated Switchgear), concerning a cartel in the gas insulated switchgear projects sector entailing manipulation of the bidding procedure for those projects, the fixing of minimum tender prices, the allocation of quotas and of projects, and exchanges of information, and also, in the alternative, annulment or reduction of the fine imposed on the applicants
Operative part of the judgment
The Court:
|
1. |
Joins Cases T-117/07 and T-121/07 for the purposes of the judgment; |
|
2. |
Annuls Article 2(b) and (c) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear); |
|
3. |
For the infringements found in Article 1(b) to (f) of Decision C(2006) 6762 final, imposes the following fines:
|
|
4. |
Dismisses the actions as to the remainder; |
|
5. |
In Case T-117/07, orders the European Commission to pay one-tenth of the costs incurred by Areva, Areva T&D Holding, Areva T&D SA and Areva T&D AG and one-tenth of its own costs. Areva, Areva T&D SA and Areva T&D AG are ordered to pay nine-tenths of their own costs and nine-tenths of the Commission’s costs; |
|
6. |
In Case T-121/07, orders the Commission to pay one-tenth of the costs incurred by Alstom and one-tenth of its own costs. Alstom is ordered to pay nine-tenths of its own costs and nine-tenths of the Commission’s costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/11 |
Judgment of the General Court of 3 March 2011 — Siemens Österreich and Others v Commission
(Joined Cases T-122/07 to T-124/07) (1)
(Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Effects within the common market - Notion of continuous infringement - Duration of the infringement - Limitation period - Fines - Proportionality - Ceiling of 10 % of turnover - Joint and several liability for payment of a fine - Mitigating circumstances - Cooperation - Rights of the defence)
2011/C 113/21
Language of the case: German
Parties
Applicants: Siemens AG Österreich (Vienna, Austria) (Case T-122/07); VA Tech Transmission & Distribution GmbH & Co. KEG (Vienna) (Case T-122/07); Siemens Transmission & Distribution Ltd (Manchester, United Kingdom) (Case T-123/07); Siemens Transmission & Distribution SA (Grenoble, France) (Case T-124/07); and Nuova Magrini Galileo SpA (Bergamo, Italy) (Case T-124/07) (represented by: H. Wollmann and F. Urlesberger, lawyers)
Defendant: European Commission (represented by: F. Arbault and O. Weber, and subsequently by X. Lewis and A. Antoniadis, and finally by A. Antoniadis and R. Sauer, Agents,)
Re:
Partial annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding pursuant to Article 81 EC and Article 53 EEA (Case COMP/F/38.899 — Gas-isolated switchgear), and in the alternative, an application for a reduction of the fine imposed on the applicants.
Operative part of the judgment
The Court:
|
1. |
Annuls Article 1(m), (p), (q), (r) and (t) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear), in so far as the Commission found therein an infringement on the part of Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA and Nuova Magrini Galileo SpA, for the period from 1 April to 30 June 2002; |
|
2. |
Annuls Article 2(j), (k) and (l) of Decision C(2006) 6762 final; |
|
3. |
Imposes the following fines for the infringements found in Article 1(m), (p), (q), (r) and (t) of Decision C(2006) 6762 final:
|
|
4. |
Dismisses the remainder of the actions; |
|
5. |
In Case T-122/07, orders the European Commission to pay one tenth of the costs incurred by Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG and one tenth of its own costs, and orders Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG to pay nine tenths of their own costs and nine tenths of the costs incurred by the Commission; |
|
6. |
In Case T-123/07, orders the Commission to pay one tenth of the costs incurred by Siemens Transmission & Distribution Ltd and one tenth of its own costs, and orders Siemens Transmission & Distribution Ltd to pay nine tenths of their own costs and nine tenths of the costs incurred by the Commission; |
|
7. |
In Case T-124/07, orders the Commission to pay one fifth of the costs incurred by Siemens Transmission & Distribution SA and Nuova Magrini Galileo and one fifth of its own costs, and orders Siemens Transmission & Distribution SA and Nuova Magrini Galileo to pay four fifths of their own costs and four fifths of the costs incurred by the Commission. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/12 |
Judgment of the General Court of 3 March 2011 — Portugal v Commission
(Case T-387/07) (1)
(ERDF - Reduction of financial assistance - Global grant for local development in Portugal - Action for annulment - Expenditure actually incurred - Arbitration clause)
2011/C 113/22
Language of the case: Portuguese
Parties
Applicant: Portuguese Republic (represented by: L. Inez Fernandes, S. Rodrigues and A. Gattini, Agents)
Defendant: European Commission (represented by: P. Guerra e Andrade and L. Flynn, Agents)
Re:
Action for partial annulment of Commission Decision C(2007) 3772 of 31 July 2007 reducing the financial assistance granted by the European Regional Development Fund towards the global grant for local development in Portugal pursuant to Commission Decision C(95) 1769 of 28 July 1995.
Operative part of the judgment
The Court:
|
1. |
Dismisses the action. |
|
2. |
Orders the Republic of Portugal to bear its own costs and to pay those of the European Commission. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/12 |
Judgment of the General Court of 3 March 2011 — Caixa Geral de Depósitos v Commission
(Case T-401/07) (1)
(ERDF - Reduction of financial assistance - Global grant for local development in Portugal - Action for annulment - Whether directly concerned - Inadmissibility - Arbitration clause)
2011/C 113/23
Language of the case: Portuguese
Parties
Applicant: Caixa Geral de Depósitos SA (Lisbon, Portugal) (represented by: N. Mimoso Ruiz, F. Ponce de Leão Paulouro and C. Farinhas, lawyers)
Defendant: European Commission (represented by: P. Guerra e Andrade and L. Flynn, Agents)
Intervener in support of the applicant: Portuguese Republic (represented by: L. Inez Fernandes, S. Rodrigues and A. Gattini, Agents)
Re:
ACTION for partial annulment of Commission Decision C(2007) 3772 of 31 July 2007 reducing the financial assistance granted by the European Regional Development Fund (ERDF) to the global grant for local development in Portugal by Commission Decision C(95) 1769 of the European Commission of 28 July 1995, and a claim for an order against the Commission to pay the final balance of the financial assistance under Article 238 EC.
Operative part of the judgment
The Court:
|
1. |
Dismisses the action as inadmissible. |
|
2. |
Orders the Caixa Geral de Depósitos, SA to bear its own costs and to pay those of the European Commission. |
|
3. |
Orders the Republic of Portugal to bear its own costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/12 |
Judgment of the General Court of 3 March 2011 — Evropaïki Dynamiki v Commission
(Case T-589/08) (1)
(Public service contracts - Tender procedure - Provision of IT and user support services relating to the Community emissions trading scheme - Rejection of bid - Award criteria - Obligation to state the reasons on which the decision is based - Manifest error of assessment - Equal treatment - Transparency)
2011/C 113/24
Language of the case: English
Parties
Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, (Athens, Greece) (represented by: N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers)
Defendant: European Commission (represented by: P. Wytinck and B. Hoorelbeke, lawyers)
Re:
First, application for the annulment of the Commission’s decisions of 13 October 2008, rejecting the bids submitted by the applicant for each of the three lots relating to open invitation to tender DG ENV.C2/FRA/2008/0017 ‘Framework contract for Emission Trading Scheme — CITL/CR’ (2008/S 72-096229) and to award those contracts to another tenderer and, secondly, claim for damages
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/13 |
Order of the General Court of 17 February 2011 — RapidEye v Commission
(Case T-330/09) (1)
(Action for annulment - State aid - Aid granted by the German authorities pursuant to the multi-sectoral framework on regional aid - Satellite-based geo-information services system project - Request for confirmation of the scope of a decision declaring aid to be compatible with the common market - Commission's response - Measure not open to appeal - Inadmissibility)
2011/C 113/25
Language of the case: German
Parties
Applicant: RapidEye AG (Brandenbourg-sur-la-Havel, Germany) (represented by: T. Jestaedt, lawyer)
Defendant: European Commission (represented by: K. Gross and B. Martenczuk, Agents)
Re:
Application for annulment of the decision allegedly contained in the letter from the Commission of 9 June 2009, relating to the aid granted to RapidEye AG by the German authorities for the creation of a satellite-based geo-information services system (State Aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002)).
Operative part of the order
|
1. |
The action is dismissed as inadmissible. |
|
2. |
RapidEye AG shall pay the costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/13 |
Order of the General Court of 16 February 2011 — Lux Management Holding SA v OHIM — Zeis Excelsa (KULTE)
(Case T-130/10) (1)
(Community trade mark - Application for a declaration of invalidity - Agreement for co-existence of the marks and withdrawal of the application for a declaration of invalidity - No need to adjudicate)
2011/C 113/26
Language of the case: English
Parties
Applicant: Lux Management Holding SA (Luxembourg, Luxembourg) (represented by: S. Mas, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)
Other party to the proceedings before the Board of Appeal of OHIM: Zeis Excelsa SpA (Montegranaro, Italy)
Re:
Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 January 2010 (Case R 712/2008-4) concerning proceedings between Zeis Excelsa SpA and Lux Management Holding SA for a declaration of invalidity
Operative part of the order
|
1. |
There is no longer any need to adjudicate on the action. |
|
2. |
Lux Management Holding SA shall pay the costs. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/13 |
Order of the General Court of 3 February 2011 — Abercrombie & Fitch Europe v OHIM — Gilli (GILLY HICKS)
(Case T-336/10) (1)
(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
2011/C 113/27
Language of the case: English
Parties
Applicant: Abercrombie & Fitch Europe SA (Mendrisio, Switzerland) (represented by: S. Malynicz, Barrister, and D. Stone and L. Ritchie, Solicitors)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos, Agent)
Other party to the proceedings before the Board of Appeal of OHIM: Gilli Srl (Milan, Italy)
Re:
Action brought against the decision of the First Board of Appeal of OHIM of 20 May 2010 (Case R 832/2008-1) concerning opposition proceedings between Gilli Srl and Abercrombie & Fitch Europe SA
Operative part of the order
|
1. |
There is no longer any need to adjudicate on the action. |
|
2. |
The defendant shall bear its own costs and pay the defendant’s. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/14 |
Order of the President of the General Court of 17 February 2011 — Comunidad Autónoma de Galicia v Commission
(Case T-520/10 R)
(Interim measures - State aid - Compensation for additional production costs of certain electricity power plants arising from a public service obligation to produce certain volumes of electricity from indigenous coal implemented by a ‘preferential dispatch mechanism’ in their favour - Decision not to raise objections - Application for suspension of operation - Prima facie case - No urgency - Balance of interests)
2011/C 113/28
Language of the case: Spanish
Parties
Applicant: Comunidad Autónoma de Galicia (Santiago de Compostela, Spain) (represented by: S. Martínez Lage, H. Brokelmann and A. Rincón García Loygorri, lawyers)
Defendant: European Commission (represented by: E. Gippini Fournier and C. Urraca Caviedes, Agents)
Re:
Application for interim measures seeking, in essence, an order that the operation of Commission Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism for indigenous coal power plants be suspended
Operative part of the order
|
1. |
Hidroeléctrica del Cantábrico, SA, and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission. |
|
2. |
Copies of all the procedural documents shall be served by the Registrar on the parties referred to in paragraph 1 above. |
|
3. |
The application for interim measures is dismissed. |
|
4. |
The costs are reserved. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/14 |
Order of the President of the Court of First Instance of 16 February 2011 — Nencini v Parliament
(Case T-560/10 R)
(Interim measures - Member of the European Parliament - Recovery of allowances for parliamentary assistance and travel - Application for suspension of operation - No urgency)
2011/C 113/29
Language of the case: Italian
Parties
Applicant: Riccardo Nencini (Barberino di Mugello, Italy) (represented by: F. Bertini, lawyer)
Defendant: European Parliament (represented by: N. Lorenz, A. Caiola and D. Moore, Agents)
Re:
Application for suspension of operation of various decisions of the European Parliament ordering the recovery of parliamentary allowances allegedly unduly paid
Operative part of the order
|
1. |
The application for interim measures is dismissed. |
|
2. |
The costs are reserved. |
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/15 |
Action brought on 25 January 2011 — Kastenholz v OHIM — qwatchme (watch dials)
(Case T-68/11)
2011/C 113/30
Language in which the application was lodged: German
Parties
Applicant: Erich Kastenholz (Troisdorf, Germany) (represented by: L. Acker, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: qwatchme A/S (Vejle East, Denmark)
Form of order sought
|
— |
Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3; |
|
— |
refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division; |
|
— |
order OHIM to pay the costs. |
Pleas in law and main arguments
Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 602636-0003, which shows a watch dial.
Proprietor of the Community design: qwatchme A/S.
Applicant for the declaration of invalidity of the Community trade mark: the applicant.
Grounds for the application for a declaration of invalidity: Breach of Article 25(1)(b), together with Article 4 and Article 25(1)(f) of Regulation (EC) No 6/2002, (1) for lack of novelty and infringement of Paul Heimbach’s copyright in an artistic work.
Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.
Decision of the Board of Appeal: Rejection of the appeal.
Pleas in law: Breach of Article 25(1) and Article 5 and Article 6 of Regulation (EC) No 6/2002, as the Board of Appeal did not make a clear distinction between the features of ‘novelty’ and ‘individual character’, as well as breach of Article 25(1)(f) of Regulation (EC) No 6/2002, as neither the Board of Appeal nor the Cancellation Division of OHIM had duly analysed whether the Community design constitutes a prohibited use of a work which is protected under German copyright legislation.
(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/15 |
Action brought on 3 February 2011 — Sogepi Consulting y Publicidad v OHIM (ESPETEC)
(Case T-72/11)
2011/C 113/31
Language of the case: Spanish
Parties
Applicant: Sogepi Consulting y Publicidad, SL (Vic, Spain) (represented by J.P. de Oliveira Vaz Miranda Sousa, T. Barceló Rebaque and N. Esteve Manasanch, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
The applicant requests the Court to:
|
— |
annul and revoke the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 November 2010, in Case R 312/2010-2; |
|
— |
as a consequence allow registration of Community trade mark No 7.114.572 ‘ESPETEC’; and |
|
— |
order the defendant to pay the costs. |
Pleas in law and main arguments
Community trade mark concerned: Word mark ‘ESPETEC’, for goods in Class 29
Decision of the Examiner: Refusal of the mark applied for
Decision of the Board of Appeal: Appeal dismissed
Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1), since the term ‘ESPETEC’ is not devoid of distinctive character when considered independently of the goods applied for and infringement of Article 7(3) of Regulation (EC) No 207/2009 given the distortion and incorrect assessment of the evidence of use on the market of the mark ‘ESPETEC’.
(1) Council Regulation (EC) No 2007/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/16 |
Action brought on 14 February 2011 — Formica v OHIM — Silicalia (CompacTop)
(Case T-82/11)
2011/C 113/32
Language in which the application was lodged: Spanish
Parties
Applicant: Formica, SA (Galdakao, Spain) (represented by: A. Goméz López, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Silicalia, SL (Valencia, Spain)
Form of order sought
The applicant requests the Court to:
|
— |
declare as not being in accordance with Regulation EC No 207/2009 on the Community trade mark the decision of 9 December 2010 of the First Board of Appeal of OHIM, in Case R 1083/2010-1; |
|
— |
allow registration of the complex Community trade mark No 6 524 243 CompacTop, in Class 20; and |
|
— |
order the defendant and, if appropriate, the intervener, to pay the costs of the proceedings. |
Pleas in law and main arguments
Applicant for a Community trade mark: Formica
Community trade mark concerned: Figurative mark ‘CompacTop’ for goods in Class 20.
Proprietor of the mark or sign cited in the opposition proceedings: Silicalia, SL
Mark or sign cited in opposition: Community and national figurative marks containing the word elements ‘COMPACquartz’, ‘COMPACMARMOL&QUARTZ’ and ‘COMPAC MARMOL&QUARTZ’ for goods and services in Classes 19, 27, 35, 37 and 39.
Decision of the Opposition Division: Opposition upheld.
Decision of the Board of Appeal: Appeal dismissed.
Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) since there is no similarity or likelihood of confusion between the marks at issue.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/16 |
Action brought on 11 February 2011 — Antrax ItM v OHIM — Heating Company (Radiators for heating)
(Case T-83/11)
2011/C 113/33
Language in which the application was lodged: Italian
Parties
Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Other party to the proceedings before the Board of Appeal: Heating Company BVBA (The) (Dilsen, Belgium)
Form of order sought
The applicant claims that the Court should:
|
— |
annul the decision of the Third Board of Appeal of OHIM of 2 November 2010, in so far as it declared Community design No 000593959-0001 invalid; |
|
— |
annul the decision of the Third Board of Appeal of OHIM of 2 November 2010 in so far as it ordered Antrax It Srl to pay the costs incurred by The Heating Company BVBA in the proceedings before OHIM; |
|
— |
order OHIM and The Heating Company BVBA to pay Antrax It SRL the costs, dues and legal fees relating to the present proceedings, together with any additional sums required by law; |
|
— |
order The Heating Company BVBA to pay Antrax It Srl the costs, dues and legal fees incurred by the latter in the proceedings before OHIM, together with any additional sums required by law. |
Pleas in law and main arguments
Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 000593959/0001 (Radiators for heating)
Proprietor of the Community design: The applicant
Applicant for the declaration of invalidity of the Community design: The Heating Company BVBA
Grounds for the application for a declaration of invalidity: The contested Community design does not meet the requirements laid down in Articles 4 to 9 of the Community Designs Regulation (CDR), since it lacks distinctive characteristics when compared with German design No 5 covered by the multiple registration No 401 10481.8, published upon application by The Heating Company BVBA and valid in France, Italy and the Benelux as international design No DM/060899
Decision of the Cancellation Division: To declare the Community design invalid
Decision of the Board of Appeal: To annul the contested decision and declare the Community design invalid
Pleas in law: The individual character of Community design No 000593959-0001
|
9.4.2011 |
EN |
Official Journal of the European Union |
C 113/17 |
Action brought on 11 February 2011 — Antrax It v OHIM — Heating Company (Radiators for heating)
(Case T-84/11)
2011/C 113/34
Language in which the application was lodged: Italian
Parties
Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Other party to the proceedings before the Board of Appeal: Heating Company BVBA (The) (Dilsen, Belgium)
Form of order sought
The applicant claims that the Court should:
|
— |
annul the decision of the Third Board of Appeal of OHIM of 2 November 2010, in so far as it declared Community design No 000593959-0002 invalid; |
|
— |
annul the decision of the Third Board of Appeal of OHIM of 2 November 2010 in so far as it ordered Antrax It Srl to pay the costs incurred by The Heating Company BVBA in the proceedings before OHIM; |
|
— |
order OHIM and The Heating Company to pay Antrax It SRL the costs, dues and legal fees relating to the present proceedings, together with any additional sums required by law; |
|
— |
order The Heating Company BVBA to pay Antrax It Srl the costs, dues and legal fees incurred by the latter in the proceedings before OHIM, together with any additional sums required by law. |
Pleas in law and main arguments
Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 000593959-0002 (radiators for heating)
Proprietor of the Community design: The applicant
Applicant for the declaration of invalidity of the Community design: The Heating Company BVBA
Grounds for the application for a declaration of invalidity: The contested Community design does not meet the requirements laid down in Articles 4 to 9 of the Community Designs Regulation (CDR), being almost identical to the German design No 4 covered by the multiple registration No 401 10481,8, published on 10 September 2002, and valid in France, Italy and Benelux as international design No DM/0608899
Decision of the Cancellation Division: To declare the Community design invalid
Decision of the Board of Appeal: To annul the contested decision and declare the Community design invalid
Pleas in law: The individual character of Community design No 000593959-0002.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/17 |
Action brought on 16 February 2011 — Nanu-Nana Joachim Hoepp v OHIM — Vincci Hoteles (NANU)
(Case T-89/11)
2011/C 113/35
Language in which the application was lodged: English
Parties
Applicant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (Bremen, Germany) (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: Vincci Hoteles S.A. (Alcobendas, Spain)
Form of order sought
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2010 in case R 641/2010-1; |
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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 word mark ‘NANU’, for goods and services in classes 3, 4, 6, 16, 18, 20, 21, 24, 26 and 35 — Community trade mark application No 6218879
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 5238704 of the word mark ‘NAMMU’, for goods and services in classes 3, 32 and 44
Decision of the Opposition Division: Partly upheld the opposition and consequently partly rejected the Community trade mark application for goods and services in classes 3, 4, 16, 21 and 35 and rejected the opposition for goods and services in classes 6, 9, 16, 18, 20, 21, 24, 26 and 35
Decision of the Board of Appeal: Annulled in part the decision of the Opposition Division and rejected the opposition for goods in classes 4, 16 and 21 and dismissed the appeal for the remainder and confirms the rejection of the Community trade mark application for goods and services in classes 3, 21 and 35
Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was likelihood of confusion on the part of the relevant public.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/18 |
Action brought on 21 February 2011 — Chimei InnoLux v Commission
(Case T-91/11)
2011/C 113/36
Language of the case: English
Parties
Applicant: Chimei InnoLux Corp. (Zhunan, Taiwan), (represented by: J.-F. Bellis, lawyer and R. Burton, Solicitor)
Defendant: European Commission
Form of order sought
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annul Commission Decision C(2010) 8761 final of 8 December 2010 in Case COMP/39.309 — LCD — Liquid Crystal Displays insofar as it finds that the infringement extended to LCD panels for TV applications; |
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reduce the amount of the fine imposed upon the applicant in the decision; and |
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order the defendant to bear the costs of the proceedings. |
Pleas in law and main arguments
In support of the action, the applicant relies on three pleas in law.
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First plea in law, alleging the Commission applied a legally flawed concept, the concept of so-called ‘direct EEA sales through transformed products’, in determining the relevant value of sales for the calculation of the fine. In calculating the relevant value of sales of the applicant for the purpose of the determination of the fine, the Commission counted the value of LCD panels incorporated in finished IT or TV products sold by the applicant in the EEA. The applicant submits that this concept of ‘direct EEA sales through transformed products’ is legally unsound and cannot be used for the determination of the relevant value of sales. The applicant submits that the concept relies on sales of products to which the infringement does not directly or indirectly relate and artificially shifts the location of relevant intra-group sales of LCD panels from outside the EEA to within the EEA and vice versa depending upon the location of sale of the finished products into which such LCD panels are incorporated. As such, the applicant submits that the concept is inconsistent with the past case-law of the EU courts dealing, among others, with the treatment of intra-group sales for the calculation of the fine. Finally, the applicant submits that the concept as applied by the Commission in the decision leads to discrimination between the addressees of the decision illegally based on the mere form of their respective corporate structures. |
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Second plea in law, alleging that the Commission violated Article 101 TFEU and Article 53 of the EEA Agreement in finding that the infringement extended to LCD panels for TV applications. The applicant submits that, due to the specific characteristics of LCD panels for TV applications, the superficial and episodic nature of the discussions relating to such panels, and the fact that other, more detailed bilateral discussions concerning LCD panels for TV applications involving third parties were disregarded by the Commission in the decision, conduct regarding LCD panels for TV applications should have been analysed and assessed distinctly from the conduct relating to LCD panels for IT applications. In particular, in light of these factors, the applicant submits that the Commission’s finding that the infringement extended to LCD panels for TV applications is vitiated by violations of the principle of equal treatment and fundamental procedural requirements and must be annulled or, at the very least, that the Commission ought to have assessed the gravity and duration of any infringement arising from the conduct relating to LCD panels for TV applications separately from the infringement relating to LCD panels for IT applications for the purposes of calculating the fine. |
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Third plea in law, alleging that the relevant value of sales taken by the Commission as the basis for the calculation of the applicant’s fine erroneously include sales other than sales of liquid crystal display panels for IT and TV applications. Sales of LCD panels for medical applications, which are used in the manufacture of medical equipment, were mistakenly included in sales data provided to the Commission during the administrative procedure. Given that medical panels do not qualify as IT or TV panels as defined by the Commission in the decision, the applicant submits that its sales of medical panels must be excluded from the relevant value of sales used to calculate the fine. Sales of so-called LCD open cells were also mistakenly included in sales data provided to the Commission during the administrative procedure. Given that LCD open cells are not finished products and the decision finds no infringement in relation to semi-finished products, the applicant submits that its sales of LCD open cells must be excluded from the relevant value of sales used to calculate the fine. |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/19 |
Action brought on 15 February 2011 — Stichting Corporate Europe Observatory v Commission
(Case T-93/11)
2011/C 113/37
Language of the case: English
Parties
Applicant: Stichting Corporate Europe Observatory (Amsterdam, Netherlands) (represented by: S. Crosby, Solicitor, and S. Santoro, lawyer)
Defendant: European Commission
Form of order sought
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find that the Commission Decision of 6 December 2010 in procedure GESTDEM 2009/2508 infringes Regulation No 1049/2001 (1) and annul it accordingly; and |
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order the Commission to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court. |
Pleas in law and main arguments
By means of his application the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Commission Decision of 6 December 2010 in procedure GESTDEM 2009/2508 refusing to allow full access to several documents relating to the trade negotiations between the EU and India, pursuant to Regulation No 1049/2001.
In support of the action, the applicant relies on one plea in law, alleging misapplication of Article 4(1)(a) third indent of Regulation No 1049/2001, as the international relations exception is inapplicable in this case because all the documents requested are in the public domain.
(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/19 |
Action brought on 16 February 2011 — Shang v OHIM (Justing)
(Case T-103/11)
2011/C 113/38
Language in which the application was lodged: Italian
Parties
Applicant: Tiantian Shang (Rome, Italy) (represented by A. Salerni, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
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Annul the contested provision. |
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Alter the decision taken by OHIM and recognise the right of seniority enjoyed by national mark RM 2006C002075 in relation to Community trade mark 008391202, including the name and symbol, with all the effects thus entailed as provided for in Regulation No 40/94 on the Community trade mark, as replaced by Regulation No 207/2009. |
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In the alternative, given that both the national and the Community mark share at the very least a common name element, consisting in the word ‘Justing’, recognise that the name element of the mark, or the name ‘Justing’, has a right of seniority, extending to it the retroactive effects of Community registration, with the possible exclusion solely of the graphic illustration surrounding the name. |
Pleas in law and main arguments
Community trade mark concerned: Figurative mark containing the word element ‘Justing’ (registration application No 8 391 203) for goods and services in Classes 18 and 25, in respect of which it is claimed that the national figurative mark (Italian registration No 1 217 203), which also contains the word element ‘Justing’, has a right of seniority
Decision of the Examiner: Rejected the application claiming seniority of the national figurative mark on the ground that the Italian mark and the Community mark are not the same.
Decision of the Board of Appeal: Dismissed the appeal.
Pleas in law: Misapplication of Article 34 of Regulation No 207/2009 and infringement of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/20 |
Action brought on 17 February 2011 — Ferrari v OHIM (PERLE’)
(Case T-104/11)
2011/C 113/39
Language in which the application was lodged: Italian
Parties
Applicant: Ferrari F.lli Lunelli SpA (Trento, Italy) (represented by P. Perani and G. Ghisletti, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
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Annul the decision of the Second Board of Appeal of OHIM in Case R 1249/2010-2 delivered on 8 December 2010 and notified on 17 December 2010. |
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Order OHIM to pay the costs of the proceedings. |
Pleas in law and main arguments
Community trade mark concerned: International figurative mark (No W 10510030) containing the word element ‘PERLE’’ for goods in Classes 3, 25 and 33 in respect of which the applicant has sought Community protection.
Decision of the Examiner: Rejected in part the request for protection.
Decision of the Board of Appeal: Dismissed the appeal.
Pleas in law: Misapplication of Article 7(1)(b) and (c) and (2) of Regulation No 207/2009.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/20 |
Order of the General Court of 4 February 2011 — Chi Mei Optoelectronics Europe and Chi Mei Optoelectronics v Commission
(Case T-140/07) (1)
2011/C 113/40
Language of the case: English
The President of the First Chamber (extended composition) has ordered that the case be removed from the register.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/20 |
Order of the General Court of 16 February 2011 — Commission v Earthscan
(Case T-5/10) (1)
2011/C 113/41
Language of the case: English
The President of the Second Chamber has ordered that the case be removed from the register.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/20 |
Order of the General Court of 17 February 2011 — Rautaruukki v OHIM — Vigil Pérez (MONTERREY)
(Case T-217/10) (1)
2011/C 113/42
Language of the case: English
The President of the Second Chamber has ordered that the case be removed from the register.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/21 |
Order of the General Court of 17 February 2011 — Suez Environnement and Lyonnaise des eaux France v Commission
(Case T-274/10) (1)
2011/C 113/43
Language of the case: French
The President of the Fourth Chamber has ordered that the case be removed from the register.
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/21 |
Order of the General Court of 17 February 2011 — HIM v Commission
(Case T-316/10) (1)
2011/C 113/44
Language of the case: French
The President of the Fifth Chamber has ordered that the case be removed from the register.
European Union Civil Service Tribunal
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/22 |
Action brought on 11 January 2011 — Marcuccio v Commission
(Case F-3/11)
2011/C 113/45
Language of the case: Italian
Parties
Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)
Defendant: European Commission
Subject-matter and description of the proceedings
Annulment of the implied decision rejecting the applicant’s request of 15 March 2010 and a claim for compensation for the damage suffered.
Form of order sought
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Annul the decision, whatever its form, which brought about the rejection by the Commission of the request of 15 March 2010 sent by the applicant to the appointing authority of the Commission; |
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in so far as is necessary, annul the Commission’s rejection of the complaint of 5 August 2010; |
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in so far as is necessary, annul the note of 24 August 2010, written in Italian, which was not received by the applicant before 1 October 2010; |
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order the Commission to make reparation for the damage unjustly suffered by the applicant as a result of each of the decisions in respect of which annulment is sought, in particular as a result of the cumulative effect of those decisions, by paying to the applicant the sum of EUR 1 000, or such greater or lesser sum as the Tribunal may consider fair and just; |
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order the Commission to pay the costs. |
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9.4.2011 |
EN |
Official Journal of the European Union |
C 113/22 |
Action brought on 13 February 2011 — Hecq v Commission
(Case F-12/11)
2011/C 113/46
Language of the case: French
Parties
Applicant: André Hecq (Chaumont-Gistoux, Belgium) (represented by: L. Vogel, lawyer)
Defendant: European Commission
Subject-matter and description of the proceedings
Action for annulment of the implicit decision rejecting the applicant's request to resume his professional activities as well as for full payment of his remuneration as an official, calculated from 1 August 2003, and for damages, all of those amounts to bear default interest at 7 % per annum from 1 August 2003.
Form of order sought
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Annul the decision adopted by the appointing authority on 29 October 2010 by which it rejected a complaint brought by the applicant on 6 July 2010 against an implicit decision deemed to have been adopted on 15 April 2010 which rejected a request submitted by the applicant on 15 December 2009 with a view to resuming his professional activities as well as for full payment of his remuneration as an official, calculated from 1 August 2003, and for damages, all of those amounts to bear default interest at 7 % per annum from 1 August 2003; |
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annul, as far as is necessary, the implicit decision which the appointing authority is deemed to have adopted on 15 April 2010 in so far as it rejected the abovementioned request submitted by the applicant on 15 December 2009; |
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order the Commission to pay the applicant an amount by way of damages corresponding to the remuneration as an official of which he was unjustly deprived from 1 August 2003, primarily and secondarily, plus an amount of EUR 50 000, all of those amounts to bear default interest at 7 % per annum from 1 August 2003; |
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order the European Commission to pay the costs. |
