(2008/C 236/01)

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

OJ C 223, 30.8.2008

Past publications

OJ C 209, 15.8.2008

OJ C 197, 2.8.2008

OJ C 183, 19.7.2008

OJ C 171, 5.7.2008

OJ C 158, 21.6.2008

OJ C 142, 7.6.2008

These texts are available on:

Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic

(Case C-504/06) (1)

(Failure of a Member State to fulfil obligations - Directive 92/57/EEC - Implementation of minimum safety and health requirements at temporary or mobile construction sites - Article 3(1) - Incorrect transposition)

(2008/C 236/02)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, Agents)

Defendant: Italian Republic (represented by: I. Braguglia, Agent and W. Ferrante, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 245, p. 6) — Appointment of health and safety coordinators for a construction site where a number of undertakings are operating

Operative part of the judgment

The Court:

(1)  OJ C 42, 24.2.2007.

Judgment of the Court (Third Chamber) of 25 July 2008 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid — Spain) — Ecologistas en Acción-CODA v Ayuntamiento de Madrid

(Case C-142/07) (1)

(Directives 85/337/EEC and 97/11/EC - Assessment of the effects of projects on the environment - Refurbishment and improvement works on urban roads - Whether subject to assessment)

(2008/C 236/03)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo de Madrid

Parties to the main proceedings

Applicant: Ecologistas en Acción-CODA

Defendant: Ayuntamiento de Madrid

Re:

REFERENCE for a preliminary ruling — Juzgado de lo Contencioso-Administrativo de Madrid — Interpretation of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Urban road projects in densely populated areas or concerning landscapes of historical, cultural or archaeological significance — Whether subject to an assessment procedure having regard to their nature, size and effect — Applicability of the criteria in the judgment of the Court in Case C-332/04 Commission v Spain

Operative part of the judgment

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by point 7(b) or (c) of Annex I to the directive, or where they are projects covered by point 10(e) of Annex II or the first indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment.

(1)  OJ C 129, 9.6.2007.

Judgment of the Court (Third Chamber) of 25 July 2008 — C.A.S. SpA v Commission of the European Communities

(Case C-204/07 P) (1)

(Appeals - EEC-Turkey Association Agreement - Regulation (EEC) No 2913/92 - Article 239 - Community Customs Code - Repayment and remission of import duty - Fruit juice concentrate from Turkey - Movement certificates - Falsification - Special situation)

(2008/C 236/04)

Language of the case: German

Parties

Appellant: C.A.S. SpA (represented by: D. Ehle, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities (represented by: M. Patakia and S. Schønberg, acting as Agents, assisted by M. Núñez Müller, Rechtsanwalt)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 6 February 2007 in Case T-23/03 C.A.S. v Commission dismissing the application for partial annulment of Commission Decision REC 10/01 of 18 October 2002 relating to a claim for remission of import duties recovered post-clearance on fruit juice concentrates from Turkey imported under certificates of origin which had proved to be false in a subsequent check — Omissions and errors on the part of the Turkish authorities and the Commission capable of creating a special situation within the meaning of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Distribution of the burden of proof as to the existence of a special situation — Legal classification of the documents and facts

Operative part of the judgment

The Court:

(1)  OJ C 140, 23.6.2007.

Judgment of the Court (Second Chamber) of 25 July 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Dieter Janecek v Freistaat Bayern

(Case C-237/07) (1)

(Directive 96/62/EC - Ambient air quality assessment and management - Fixing of limit values - Entitlement of a third party, whose health has been impaired, to have an action plan drawn up)

(2008/C 236/05)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Dieter Janecek

Defendant: Freistaat Bayern

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ 1996 L 296, p. 55) — Entitlement of a third party whose health is impaired to have an action plan drawn up as provided for by the Directive, where that third party is entitled under national law to bring legal proceedings for measures to prevent the value limits of particulate matter being exceeded

Operative part of the judgment

(1)  OJ C 183, 4.8.2007.

Judgment of the Court (Eighth Chamber) of 25 July 2008 — Commission of the European Communities v Slovak Republic

(Case C-493/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Article 26(3) - Electronic communications - Networks and services - Single European emergency call number - Failure to transpose within the period prescribed)

(2008/C 236/06)

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and J. Javorský, Agents)

Defendant: Slovak Republic (represented by: J. Čorba, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take within the prescribed period the necessary measures to comply with Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51)

Operative part of the judgment

The Court:

(1)  OJ C 315, 22.12.2007.

Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform

(Case C-127/08) (1)

(Directive 2004/38/EC - Right of Union citizens and their family members to move and reside freely in the territory of a Member State - Family members who are nationals of non-member countries - Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens)

(2008/C 236/07)

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska

Defendant: Minister for Justice, Equality and Law Reform

Re:

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of 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) — Spouse who is a non-EU national — National legislation of the host Member State making the right of residence of family members subject to prior lawful residence in another Member State

Operative part of the judgment

(1)  OJ C 116, 9.5.2008.

Order of the Court (Third Chamber) of 12 June 2008 (reference for a preliminary ruling from the Monomeles Protodikeio Kerkyras — Greece) — Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos v Dimos Kerkyras

(Case C-364/07) (1)

(Article 104(3), first paragraph, of the Rules of Procedure - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work - Successive fixed-term employment contracts in the public sector - Concepts of ‘successive contracts’ and ‘objective reasons’ justifying the renewal of such contracts - Measures intended to prevent abuse - Sanctions - Settlement at national level of disputes and grievances - Scope of the obligation to interpret national law in conformity with Community law)

(2008/C 236/08)

Language of the case: Greek

Referring court

Monomeles Protodikeio Kerkyras

Parties

Applicants: Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos

Defendant: Dimos Kerkyras (Municipality of Corfu)

Re:

Reference for a preliminary ruling — Monomeles Protodikeio Kerkyras [Corfu Court of First Instance] — Interpretation of Clause 5(1) and (2) of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Employment contracts entered into with public authorities — Concept of objective reasons justifying the renewal, without restriction, of successive fixed-term contracts — Concept of successive contracts

Operative part of the order

(1)  OJ C 247 of 24.10.2007.

Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia lodged on 19 June 2008 — Federutility and Others v Autorità per l'energia elettrica e il gas

(Case C-265/08)

(2008/C 236/09)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Federutility, Asogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita srl, Sorgenia SpA

Defendant: Autorità per l'energia elettrica e il gas

Questions referred

(1)  OJ L 176, p. 57.

Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-274/08)

(2008/C 236/10)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

Pleas in law and main arguments

In support of its contention that Article 15(2)(b) and (c) has been implemented in Swedish law, Sweden has referred to various provisions in the Law on electricity (ellagen), from which, inter alia, it is apparent that network activity (distribution activity) is to be dealt with separately in the accounts and that the network undertaking's auditor is particularly to audit those separate accounts. Further, Sweden has submitted that costs which a network undertaking has in common with another undertaking are to be entered in the accounts only to the extent that they concern the network undertaking. In addition, the network undertaking is required to establish a supervisory plan and ensure that it is followed.

Nevertheless, the Commission takes the view that the clear requirement for organisation of the management structure under Article 15(2)(b) and (c) cannot be regarded as satisfied by general rules concerning, for example, separate accounting or generally applicable sanctions.

According to Sweden, the requirement for a functional division is also satisfied by the general company law provisions in the Law on limited companies (aktiebolaglagen), in accordance with which parent companies and subsidiaries are separate legal persons and legal entities.

The Commission takes the view that the parent company, in its capacity as majority shareholder, has a decisive influence over its subsidiary or subsidiaries, since certain important questions are reserved for decision by the shareholders. A distribution undertaking and its board of directors can thus never be independent of its majority shareholders on the basis only of general company law. Nor does the fact that an integrated undertaking complies with the provisions of the aktiebolaglagen concerning auditing and restrictions on the transfer of assets mean, in the Commission's view, that the requirement for an independent management structure is satisfied. According to the Commission, correct implementation of Article 15(2)(b) and (c) in national law presupposes that there are binding rules which clearly reflect the conditions laid down in those provisions, that is to say, a guarantee that the management of a distribution undertaking can act independently of the integrated electricity undertaking as regards distribution and the means necessary to guarantee the operation, maintenance and development of the network. That requirement is not satisfied by the provisions in the aktiebolaglagen.

As is apparent from the wording of Article 23(2)(a) of the Directive, that article requires a system of advance approval of network tariffs or, in any event, of the methodologies used to calculate them. Sweden has expressly stated that the present Swedish rules on the calculation of network tariffs and the criteria which network tariffs must satisfy are based on a system in which supervision is carried out after the event, but that inquiries are presently taking place regarding the introduction of a new system of advance approval and that a proposal would probably be put before parliament in June 2008.

In the abovementioned circumstances, the Commission takes the view that Sweden has not correctly implemented Directive 2003/54/EC in its national law, in particular Articles 15(2)(b) and (c) and 23(2)(a) thereof.

(1)  OJ 2003 L 176, p. 37.

Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 26 June 2008 — Miloud Rimoumi and Gabrielle Suzanne Marie Prick v Ministre des Affaires étrangères et de l'Immigration

(Case C-276/08)

(2008/C 236/11)

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicants: Miloud Rimoumi and Gabrielle Suzanne Marie Prick

Defendant: Ministre des Affaires étrangères et de l'Immigration

Question referred

Are Articles 2(2)(a), 3(1) and 7(2) of Directive 2004/38/EC 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 (1) to be interpreted as applying only to those family members who acquired that status prior to the date on which the Union citizen, whom they intend to accompany or join, exercised his/her right of free movement conferred by Article 39 of the EC Treaty, or, on the contrary, is any citizen of the Union who has exercised his/her right of free movement and become established in a Member State other than that of which that person is a national entitled to be joined by a family member, without the latter having to satisfy a condition as to the time at which he/she acquired that status?

(1)  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).

Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe

(Case C-285/08)

(2008/C 236/12)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellant: Société Moteurs Leroy Somer

Respondents: Société Dalkia France, Société Ace Europe

Question referred

Do Articles 9 and 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) preclude the interpretation of domestic law or settled domestic case-law such that it enables the victim to seek compensation for damage to an item of property intended for professional use and employed for that use, where that victim simply proves damage, the defect in the product and the causal link between that defect and the damage?

(1)  OJ 1985 L 210, p. 29.

Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others

(Case C-287/08)

(2008/C 236/13)

Language of the case: Italian

Referring court

Tribunale ordinario di Milano (Italy)

Parties to the main proceedings

Applicants: Crocefissa Savia, Monica Maria Porcu, Ignazia Randazzo, Daniela Genovese and Mariangela Campanella

Defendants: Ministero dell'Istruzione, dell'Università e della Ricerca, Direzione Didattica II Circolo — Limbiate, Ufficio Scolastico Regionale per la Lombardia, Direzione Didattica III Circolo — Rozzano, Direzione Didattica IV Circolo — Rho, Istituto Comprensivo — Castano Primo, Istituto Comprensivo A. Manzoni — Rescaldina

Questions referred

Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 7 July 2008 — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Luxair SA, European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA

(Case C-301/08)

(2008/C 236/14)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Irène Bogiatzi, married name Ventouras

Defendants: Deutscher Luftpool, Luxair SA (a Luxembourg airline company), European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA

Questions referred

(1)  Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1).

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA

(Case C-317/08)

(2008/C 236/15)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Rosalba Alassini

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena Califano v Wind SpA

(Case C-318/08)

(2008/C 236/16)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Filomena Califano

Defendant: Wind SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA

(Case C-319/08)

(2008/C 236/17)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Lucia Anna Giorgia Iacono

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Multiservice Srl v Telecom Italia SpA

(Case C-320/08)

(2008/C 236/18)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Multiservice Srl

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

Reference for a preliminary ruling from the Tribunal Superior de Justicia, Madrid (Spain) lodged on 16 July 2008 — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete v the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial

(Case C-323/08)

(2008/C 236/19)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Appellants: Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete

Other parties: the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial

Questions referred

(1)  OJ 1998 L 225, p. 16.

Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland

(Case C-328/08)

(2008/C 236/20)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and I. Koskinen, acting as Agents)

Defendant: Republic of Finland

Form of order sought

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 30 April 2007.

(1)  OJ 2004 L 143, p. 56.

Order of the President of the Third Chamber of the Court of 3 June 2008 — Commission of the European Communities v Italian Republic

(Case C-365/06) (1)

(2008/C 236/21)

Language of the case: Italian

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

(1)  OJ C 281, 18.11.2006.

Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic

(Case C-31/08) (1)

(2008/C 236/22)

Language of the case: Italian

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

(1)  OJ C 79, 29.3.2008.

Action brought on 15 July 2008 — Meyer-Falk v Commission

(Case T-251/06)

(2008/C 236/23)

Language of the case: German

Parties

Applicant: Thomas Meyer-Falk (Bruchsal, Germany) (represented by: S. Crosby, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicant contests the Commission's decision of 6 November 2006, by which it refused the applicant access to two documents relating to the fight against organised crime and to judicial reform in Bulgaria. Prior to the commencement of the proceedings, the applicant made an application for the grant of legal aid, which was granted by the Court of First Instance by decision of 21 January 2008.

In support of its action the applicant claims, first, in essence, that the defendant has infringed the principle of sound administration, since the applicant's application for access to the documents was refused despite the fact that the documents were made accessible to the public with the exception of the applicant.

The applicant claims, second, that the application of Article 4(1)(a) and (b) and Article 4(3) of Regulation (EC) No 1049/2001 (1) is vitiated by a manifest error of assessment.

(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).

Action brought on 14 July 2008 — X Technology Swiss v OHIM — Ipko-Amcor (First-On-Skin)

(Case T-273/08)

(2008/C 236/24)

Language in which the application was lodged: German

Parties

Applicant: X Technology Swiss GmbH (Wollerau, Switzerland) (represented by: A. Herbertz, 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: Ipko-Amcor BV (Zoetermeer, Netherlands)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘First-On-Skin’ for goods in Classes 18, 23 and 25 (Application for Registration No 4 019 981).

Proprietor of the mark or sign cited in the opposition proceedings: Ipko-Amcor BV.

Mark or sign cited in opposition: the word mark ‘FIRST’ for goods in Class 25 (Benelux Registration No 401 666), the objection having been lodged against registration for goods in Class 25.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division.

Pleas in law: There is no likelihood of confusion between the opposing marks.

Action brought on 15 July 2008 — Al-Aqsa v Council

(Case T-276/08)

(2008/C 236/25)

Language of the case: Dutch

Parties

Applicant: Al-Aqsa (Heerlen, Netherlands) (represented by: J. Pauw and M. Uiterwaal, lawyers)

Defendant: Council of the European Union

Form of order sought

Pleas in law and main arguments

The applicant is seeking compensation in respect of the damage which it claims to have suffered by reason of the fact that Council Decision 2003/480/EC of 27 June 2003 (1) placed it on the list of persons to whom Regulation (EC) No 2580/2001 (2) is to apply. The applicant's inclusion on the list has subsequently been confirmed on the occasion of each update.

The applicant contends that these decisions are unlawful for a variety of reasons. The applicant first points out that Decision 2006/379/EC of 29 May 2006 (3) was annulled by the Court on the ground that it failed to meet the requirement of an adequate statement of reasons (4). The applicant contends further that the decisions are vitiated by a number of substantive defects, and refers in this connection to its pleas in law in Cases T-327/03 and T-348/07 Al-Aqsa v Council  (5).

In issue here, according to the applicant, are sufficiently serious breaches of rights conferred on individuals as accordingly to justify the award of compensation. The damage suffered by the applicant involves both damage to its reputation and non-material damage, in respect of which the Council has been liable since 28 June 2003, that being the date on which the European measures entered into force.

(1)  Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/974/EC (OJ 2003 L 160, p. 81).

(2)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

(3)  Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21).

(4)  Judgment of the Court of First Instance of 11 July 2007 in Case T-327/03 Al-Aqsa v Council.

(5)  OJ 2003 C 289, p. 30, and OJ 2007 C 269, p. 61, respectively.

Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)

(Case T-277/08)

(2008/C 236/26)

Language in which the application was lodged: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, United States) (represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios ERN, SA (Sant Just Desvern, Spain)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly Mission Pharmacal Company)

Community trade mark concerned: The word mark ‘CITRACAL’ for goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal (formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532 of the mark ‘CICATRAL’ for goods in classes 1 and 5

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its assessment of the evidence of proof-of-use, and in particular on the issue of the provision of a suitable translation of the goods in relation to which the mark cited in the opposition proceedings was used. Further, the Board of Appeal erred in its assessment of the existence of a likelihood of confusion between the conflicting trade marks.

Action brought on 21 July 2008 — People's Mojahedin of Iran v Council

(Case T-284/08)

(2008/C 236/27)

Language of the case: English

Parties

Applicant: People's Mojahedin Organization of Iran (Auvers sur Oise, France) (represented by: J.-P. Spitzer, lawyer and D. Vaughan, QC)

Defendant: Council of the European Union

Form of order sought

Pleas in law and main arguments

The applicant seeks, pursuant to Article 230 EC, partial annulment and in so far as it concerns the applicant, of Council Decision 2008/583/EC of 15 July 2008 (1) (‘the contested decision’) implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC.

In support of its application, the applicant submits that the contested decision should be annulled because, in so far as it relates to the inclusion of the applicant on the list of terrorist organisations, there was no relevant decision at the time from a competent national authority sufficient to form any justification for the decision. In addition, the applicant claims that the decision should be annulled because while it was said to be based on ‘new information’ and on a decision from a competent authority other than that of the United Kingdom, the evidence on which the Council relied was not disclosed to the applicant before adopting the decision. Further, the applicant claims that no justification was given as to why such information was to be treated as new, or relevant.

The applicant puts forward that the contested decision was taken without any proper evaluation of the new information and on whether that constituted concrete and reliable evidence upon which the Council was entitled to act, in order to prove that the applicant was engaged in terrorism.

Furthermore, the applicant contends that the contested decision was adopted in violation of the applicant's right to be heard and its fundamental rights. The applicant submits, finally, that the contested decision was adopted in circumstances which amounted to an abuse or misuse of procedures and/or powers.

(1)  OJ 2008 L 188, p. 21.

Action brought on 23 July 2008 — Inditex v OHIM

(Case T-292/08)

(2008/C 236/28)

Language in which the application was lodged: Spanish

Parties

Applicant: Industria de Diseño Textil, SA (Inditex) (Arteixo, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Roberto Fernando Marín Díaz de Cerio (Logroño, Spain)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘OFTEN’ (application No 2 798 270) for goods and services in Classes 3, 9, 14, 16, 18, 25 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Roberto Fernando Marín Díaz de Cerio.

Mark or sign cited in opposition: Spanish word and figurative marks ‘OLTEN’ and Spanish figurative mark ‘OLTENWATCH’ for goods in Class 14.

Decision of the Opposition Division: Upholding in part of the opposition.

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

Pleas in law: Principally, infringement of Articles 61(1) and 62(1) of Regulation (EC) No 40/94 on the Community trade mark and, as a subsidiary plea, infringement of Articles 43(2) and 8(1)(b) of that regulation.