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Official Journal of the European Union, C 258, 25 August 2012

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		ISSN 1977-091X doi:10.3000/1977091X.C_2012.258.eng
Official Journal of the European Union		C 258

English edition	Information and Notices	Volume 55 25 August 2012

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2012/C 258/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 250, 18.8.2012	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2012/C 258/02	Case C-335/09 P: Judgment of the Court (Grand Chamber) of 26 June 2012 — Republic of Poland v European Commission (Appeal — Common organisation of the markets — Transitional measures adopted because of the accession of new Member States — Regulation (EC) No 1972/2003 on measures in respect of trade in agricultural products — Action for annulment — Period within which action must be brought — Point from which period starts to run — Lateness — Inadmissibility — Amendment of a provision of that regulation — Recommencement of period within which action must be brought — Partial admissibility — Grounds of appeal — Infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection — Infringement of the principles of free movement of goods and of non-discrimination on grounds of nationality — Infringement of the principles of proportionality and protection of legitimate expectations — Infringement of the hierarchy of norms — Infringement of Article 41 of the 2003 Act of Accession — Erroneous interpretation of Article 3 of Regulation (EC) No 1972/2003 — Infringement of duty to state reasons)	2

2012/C 258/03	Case C-336/09 P: Judgment of the Court (Grand Chamber) of 26 June 2012 — Republic of Poland v European Commission (Appeal — Common organisation of the markets — Transitional measures adopted because of the accession of new Member States — Regulation (EC) No 60/2004 laying down transitional measures in the sugar sector — Action for annulment — Period within which action must be brought — Point from which period starts to run — Lateness — Inadmissibility — Grounds of appeal — Infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection)	2

2012/C 258/04	Case C-404/10 P: Judgment of the Court (Third Chamber) of 28 June 2012 — European Commission v Éditions Odile Jacob SAS, Lagardère SCA (Appeals — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents relating to merger control proceedings — Regulations (EEC) No 4064/89 and (EC) No 139/2004 — Refusal to grant access — Exceptions relating to the protection of investigations, commercial interests, legal advice and the decision-making process of the institutions — Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)	3

2012/C 258/05	Case C-477/10 P: Judgment of the Court (Third Chamber) of 28 June 2012 — European Commission v Agrofert Holding a.s., Polski Koncern Naftowy Orlen SA, Kingdom of Denmark, Republic of Finland, Kingdom of Sweden (Appeal — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents relating to merger control proceedings — Regulation (EC) No 139/2004 — Refusal of access — Exceptions relating to the protection of the purpose of investigations, commercial interests, legal advice and the decision-making process of the institutions)	4

2012/C 258/06	Case C-485/10: Judgment of the Court (Sixth Chamber) of 28 June 2012 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — State aid — Aid granted to Ellinika Nafpigeia AE — Incompatibility with the common market — Recovery — Non-execution)	4

2012/C 258/07	Case C-7/11: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Tribunale di Palermo — Italy) — Criminal proceedings against Fabio Caronna (Medicinal products for human use — Directive 2001/83/EC — Article 77 — Wholesale distribution of medicinal products — Mandatory special authorisation for pharmacists — Conditions for granting)	5

2012/C 258/08	Case C-19/11: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Markus Geltl v Daimler AG (Directives 2003/6/EC and 2003/124/EC — Inside information — Notion of precise information — Intermediate steps in a protracted process — Reference to circumstances or an event which may reasonably be expected to come into existence or occur — Interpretation of the wording may reasonably be expected — Public disclosure of information relating to change of a manager of a company)	5

2012/C 258/09	Case C-172/11: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Arbeitsgericht Ludwigshafen am Rhein (Germany)) — Georges Erny v Daimler AG — Werk Wörth (Freedom of movement for workers — Article 45 TFEU — Regulation (EEC) No 1612/68 — Article 7(4) — Principle of non-discrimination — Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement — Cross-border workers subject to income tax in the Member State of residence — Notional taking into account of the tax on wages of the Member State of employment)	6

2012/C 258/10	Case C-306/11 P: Judgment of the Court (Fifth Chamber) of 28 June 2012 — XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Natura Selection, SL (Appeals — Community trade mark — Regulation (EC) No 40/94 — Figurative mark Linea Natura Natur hat immer Stil — Opposition by the proprietor of the Community figurative mark natura selection — Relative grounds for refusal — Likelihood of confusion)	7

2012/C 258/11	Case C-192/12 PPU: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Korkein oikeus, Finland) — Execution of a European arrest warrant in respect of Melvin West (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — European arrest warrant issued for the purposes of execution of a custodial sentence — Article 28 — Subsequent surrender — Chain of European arrest warrants — Execution of a third European arrest warrant in respect of the same person — Concept of executing Member State — Consent to surrender — Urgent preliminary ruling procedure)	7

2012/C 258/12	Case C-114/11: Order of the Court (Seventh Chamber) of 27 April 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v U. Notermans-Boddenberg (Articles 18 EC and 39 EC — Motor vehicles — Use in a Member State of a private motor vehicle registered in another Member State — Taxation of that vehicle in the first Member State on the occasion of its first use on the national road network — Vehicle taken at the time of moving to the first Member State and used for both private use and for going to the place of work situated in the second Member State)	8

2012/C 258/13	Case C-307/11 P: Order of the Court (Fifth Chamber) of 26 April 2012 — Deichmann SE v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Absolute ground for refusal — Lack of distinctive character — Figurative sign representing a chevron edged with dotted lines)	8

2012/C 258/14	Case C-224/12 P: Appeal brought on 11 May 2012 by the European Commission against the judgment delivered by the General Court (First Chamber) on 2 March 2012 in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission	8

2012/C 258/15	Case C-265/12: Reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium), lodged on 29 May 2012 — Citroën Belux NV v Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)	9

2012/C 258/16	Case C-266/12 P: Appeal brought on 29 May 2012 by Jarosław Majtczak against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Case T-227/09: Feng Shen Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	10

2012/C 258/17	Case C-268/12 P: Appeal brought on 30 May 2012 by Cadila Healthcare Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 March 2012 in Case T-288/08: Cadila Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	10

2012/C 258/18	Case C-293/12: Reference for a preliminary ruling from High Court of Ireland made on 11 June 2012 — Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General	11

2012/C 258/19	Case C-301/12: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 June 2012 — Cascina Tre Pini s.s. v Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others	12

2012/C 258/20	Case C-315/12: Reference for a preliminary ruling from the Højesteret (Denmark), lodged on 29 June 2012 — Metro Cash & Carry Danmark ApS v Skatteministeriet	13

2012/C 258/21	Case C-317/12: Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 2 July 2012 — Criminal proceedings against Daniel Lundberg	13

2012/C 258/22	Case C-320/12: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 2 July 2012 — Malaysia Dairy Industries Pte. Ltd v Ankenævnet for Patenter og Varemærker	14

	General Court
2012/C 258/23	Case T-476/07: Judgment of the General Court of 12 July 2012 — Evropaïki Dynamiki v Frontex (Public service contracts — Frontex tendering procedures — Provision of informatics services — Rejection of a tender — Action for annulment — Admissibility — Obligation to state reasons — Award criteria — Manifest error of assessment — Non-contractual liability)	15

2012/C 258/24	Case T-17/09: Judgment of the General Court of 22 May 2012 — Evropaïki Dynamiki v Commission (Public services contracts — Tender procedure — Provision of informatics services for an electronic exchange of social security information project (EESSI project) in the field of the coordination of social security for persons mobile in Europe — Rejection of bid submitted by a tenderer — Award of the contract — Obligation to state the reasons on which the decision is based — Transparency — Equal treatment — Manifest error of assessment — No interest in bringing proceedings — Non contractual liability)	15

2012/C 258/25	Case T-255/09: Judgment of the General Court of 13 July 2012 — Caixa Geral de Depósitos v OHIM — Caixa d’Estalvis i Pensions de Barcelona (la Caixa) (Community trade mark — Opposition proceedings — Application for Community figurative mark la caixa — Earlier Portuguese word mark CAIXA — Earlier national word and figurative marks — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))	16

2012/C 258/26	Case T-279/09: Judgment of the General Court of 12 July 2012 — Aiello v OHIM — Cantoni ITC (100 % Capri) (Community trade mark — Opposition proceedings — Notification of the opposing party’s pleading before the Board of Appeal — Rules 50(1), 20(2) and 67(1) of Regulation (EC) No 2868/95 — Rights of the defence)	16

2012/C 258/27	Case T-346/09: Judgment of the General Court of 12 July 2012 — Winzer Pharma v OHIM — Alcon (BAÑOFTAL) (Community trade marks — Opposition proceedings — Application for Community trade mark BAÑOFTAL — Earlier national word marks KAN-OPHTAL and PAN-OPHTAL — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)	16

2012/C 258/28	Case T-470/09: Judgment of the General Court of 12 July 2012 — medi v OHIM (medi) (Community trade mark — Application for the Community word mark medi — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) and (2) of Regulation No 207/2009)	17

2012/C 258/29	Case T-308/10: Judgment of the General Court of 12 July 2012 — Commission v Nanopoulos (Appeal — Civil service — Officials — Duty to provide assistance — Article 24 of the Staff Regulations — Non-contractual liability — Articles 90 and 91 of the Staff Regulations — Damages claim to be submitted within a reasonable time — Time-limit for reply — Institution of disciplinary proceedings — Criterion requiring a sufficiently serious breach — Personal data leaked to the press — Failure to assign tasks corresponding to an official’s grade — Amount of damages)	17

2012/C 258/30	Case T-334/10: Judgment of the General Court of 12 July 2012 — Leifheit v OHIM — Vermop Salmon (Twist System) (Community trade mark — Invalidity proceedings — Community word mark Twist System — Earlier Community word marks TWIX and TWIXTER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)	18

2012/C 258/31	Case T-517/10: Judgment of the General Court of 12 July 2012 — Pharmazeutische Fabrik Evers v OHIM — Ozone Laboratories Pharma (HYPOCHOL) (Community trade mark — Opposition proceedings — Application for Community word mark HYPOCHOL — Earlier national figurative mark HITRECHOL — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)	18

2012/C 258/32	Case T-61/11: Judgment of the General Court of 12 July 2012 — Vermop Salmon v OHIM — Leifheit (Clean Twist) (Community trade mark — Invalidity proceedings — Community word mark Clean Twist — Earlier Community word marks TWIX and TWIXSTER — Relative ground of refusal — No likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)	18

2012/C 258/33	Case T-170/11: Judgment of the General Court of 12 July 2012 — Rivella International v OHIM — Baskaya di Baskaya Alim (BASKAYA) (Community trade mark — Opposition proceedings — Application for the Community figurative mark BASKAYA — Earlier international figurative mark Passaia — Proof of genuine use of the earlier mark — Relevant territory — Article 42(2) and (3) of Regulation (EC) No 207/2009)	19

2012/C 258/34	Case T-227/11: Judgment of the General Court of 12 July 2012 — Wall v OHIM — Bluepod Media Worldwide (bluepod MEDIA) (Community trade mark — Opposition proceedings — Application for Community figurative mark bluepod MEDIA — Earlier Community figurative mark blue spot and earlier international and national word marks BlueSpot — Article 8(1)(b) of Regulation (EC) No 207/2009)	19

2012/C 258/35	Case T-323/11: Judgment of the General Court of 12 July 2012 — Unión de Cervecerías Peruanas Backus y Johnston v OHIM (shape of a bottle) (Community trade marks — Absolute grounds for refusal — Application for a three-dimensional trade mark — Shape of a bottle — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)	19

2012/C 258/36	Case T-361/11: Judgment of the General Court of 12 July 2012 — Hand Held Products v OHIM — Orange Brand Services (DOLPHIN) (Community trade mark — Opposition proceedings — Application for Community word mark DOLPHIN — Earlier Community word mark DOLPHIN — Opposition refused in part — Article 8(1)(b) of Regulation (EC) No 207/2009)	20

2012/C 258/37	Case T-389/11: Judgment of the General Court of 12 July 2012 — Guccio Gucci v OHIM — Chang Qing Qing (GUDDY) (Community trade mark — Opposition proceedings — Application for the Community word mark GUDDY — Earlier Community word mark GUCCI — Relative ground for refusal — Likelihood of confusion — Highly distinctive character of the earlier mark by reason of the public’s recognition of that mark — Evidence — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)	20

2012/C 258/38	Case T-264/00: Order of the General Court of 12 July 2012 — Compagnia Generale delle Acque v Commission (Annulment action — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Commission decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action partially inadmissible and partially manifestly devoid of any basis in law)	21

2012/C 258/39	Case T-201/10: Order of the General Court of 13 July 2012 — IVBN v Commission (Action for annulment — State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Special project aid to housing corporations — Decision accepting the Member State’s commitments — Decision declaring new aid compatible — No individual concern — Failure to initiate the procedure under Article 108(2) TFEU — Action inadmissible in part and in part manifestly devoid of any basis in law)	21

2012/C 258/40	Case T-646/11: Action brought on 27 June 2012 — CD v Council of the European Union	21

2012/C 258/41	Case T-200/12: Action brought on 9 May 2012 — Shannon Free Airport Development v Commission	22

2012/C 258/42	Case T-253/12: Action brought on 8 June 2012 — Hammar Nordic Plugg v Commission	23

2012/C 258/43	Case T-255/12: Action brought on 8 June 2012 — Vakili v Council	23

2012/C 258/44	Case T-263/12: Action brought on 18 June 2012 — Manufacturing Support and Procurement Kala Naft v Council	24

2012/C 258/45	Case T-280/12: Action brought on 28 June 2012 — Flying Holding and Others v Commission	24

2012/C 258/46	Case T-282/12: Action brought on 27 June 2012 — El Corte Inglés v OHIM — Sohawon (FREE YOUR STYLE.)	25

2012/C 258/47	Case T-284/12: Action brought on 29 June 2012 — Oro Clean Chemie v OHIM — Merz Pharma (PROSEPT)	25

2012/C 258/48	Case T-293/12: Action brought on 2 July 2012 — Syria International Islamic Bank v Council	26

2012/C 258/49	Case T-484/07: Order of the General Court of 11 July 2012 — Romania v Commission	27

	European Union Civil Service Tribunal
2012/C 258/50	Case F-64/12: Action brought on 21 June 2012 — ZZ v EEAS	28

2012/C 258/51	Case F-66/12: Action brought on 27 June 2012 — ZZ v Commission	28

2012/C 258/52	Case F-68/12: Action brought on 2 July 2012 — ZZ v Commission	28

2012/C 258/53	Case F-70/12: Action brought on 4 July 2012 — ZZ v EEAS	29

2012/C 258/54	Case F-72/12: Action brought on 9 July 2012 — ZZ v Commission	29

	Corrigenda
2012/C 258/55	Corrigendum to the notice in the Official Journal in Case T-527/10 (OJ C 227, 28.7.2012, p. 20)	30

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

25.8.2012

Official Journal of the European Union

C 258/1

2012/C 258/01

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

25.8.2012

Official Journal of the European Union

C 258/2

Judgment of the Court (Grand Chamber) of 26 June 2012 — Republic of Poland v European Commission

(Case C-335/09 P) (1)

(Appeal - Common organisation of the markets - Transitional measures adopted because of the accession of new Member States - Regulation (EC) No 1972/2003 on measures in respect of trade in agricultural products - Action for annulment - Period within which action must be brought - Point from which period starts to run - Lateness - Inadmissibility - Amendment of a provision of that regulation - Recommencement of period within which action must be brought - Partial admissibility - Grounds of appeal - Infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection - Infringement of the principles of free movement of goods and of non-discrimination on grounds of nationality - Infringement of the principles of proportionality and protection of legitimate expectations - Infringement of the hierarchy of norms - Infringement of Article 41 of the 2003 Act of Accession - Erroneous interpretation of Article 3 of Regulation (EC) No 1972/2003 - Infringement of duty to state reasons)

2012/C 258/02

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented initially by: M. Dowgielewicz, and subsequently by M. Szpunar, acting as Agents)

Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe, A. Stobiecka-Kuik, A. Szmytkowska, and T. van Rijn, acting as Agents)

Re:

Appeal brought against the judgment delivered on 10 June 2009 by the Court of First Instance (First Chamber, Extended Composition) in Case T-257/04 Poland v Commission, by which it dismissed the action seeking partial annulment of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13) and by Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13) — Misinterpretation of the fourth paragraph of Article 230 EC, of Article 3 of Regulation (EC) No 1972/2003, and of Regulation No 1 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952 to 1958, p. 59) — Breach of Article 253 EC and of Article 41 of the Act of Accession, infringement of the right to effective redress, and infringement of the principles of solidarity, proportionality, non-discrimination, good faith and legitimate expectations — Procedural irregularities resulting from the refusal of the Court of First Instance to examine the pleas in law alleging infringement of the principles of solidarity and good faith

Operative part of the judgment

The Court rules:

1.	The appeal is dismissed;

2.	The Republic of Poland is ordered to bear its own costs and to pay those of the European Commission.

(1) OJ C 282, 21.11.2009.

25.8.2012

Official Journal of the European Union

C 258/2

Judgment of the Court (Grand Chamber) of 26 June 2012 — Republic of Poland v European Commission

(Case C-336/09 P) (1)

(Appeal - Common organisation of the markets - Transitional measures adopted because of the accession of new Member States - Regulation (EC) No 60/2004 laying down transitional measures in the sugar sector - Action for annulment - Period within which action must be brought - Point from which period starts to run - Lateness - Inadmissibility - Grounds of appeal - Infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection)

2012/C 258/03

Language of the case: Polish

Parties

Appellant: Republic of Poland (represented: initially by M. Dowgielewicz, and subsequently by M. Szpunar, Agents)

Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe, A. Stobiecka-Kuik and A. Szmytkowska, and by T. van Rijn, Agents)

Re:

Appeal against the order of the Court of First Instance (First Chamber, Extended Composition) of 10 June 2009 in Case T-258/04 Poland v Commission, by which it dismissed as inadmissible an action for partial annulment of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8) — Date from which the period for bringing an action for annulment begins to run — Erroneous interpretation of the fourth paragraph of Article 230 EC and of Regulation No 1 determining the languages to be used by the EEC (OJ, English Special Edition 1952-1958, p. 59) — Breach of the right to effective judicial protection and of the principles of solidarity and good faith — Procedural irregularities resulting from the Court of First Instance’s refusal to hear the pleas linked to the breach of those principles

Operative part of the judgment

The Court rules:

1.	The order of the Court of First Instance of the European Communities of 10 June 2009 in Case T-258/04 Poland v Commission is set aside.

The case is referred back to the General Court of the European Union for judgment on the form of order submitted by the Republic of Poland seeking annulment of Articles 5, 6(1) to (3), 7(1) and 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union.

3.	The costs are reserved.

(1) OJ C 282, 21.11.2009.

25.8.2012

Official Journal of the European Union

C 258/3

Judgment of the Court (Third Chamber) of 28 June 2012 — European Commission v Éditions Odile Jacob SAS, Lagardère SCA

(Case C-404/10 P) (1)

(Appeals - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Documents relating to merger control proceedings - Regulations (EEC) No 4064/89 and (EC) No 139/2004 - Refusal to grant access - Exceptions relating to the protection of investigations, commercial interests, legal advice and the decision-making process of the institutions - Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)

2012/C 258/04

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Smulders, O. Beynet and P. Costa de Oliveira, acting as Agents)

Interveners in support of the applicant: Czech Republic (represented by: M. Smolek and D. Hadroušek, acting as Agents), French Republic (represented by: J. Gstalter, acting as Agent)

Other parties to the proceedings: Éditions Odile Jacob SAS (represented by: O. Fréget and L. Eskenazi, avocats), Lagardère SCA (represented by: A. Winckler, F. de Bure and J.-B. Pinçon, avocats)

Interveners in support of Éditions Odile Jacob SAS: Kingdom of Denmark (represented by: S. Juul Jørgensen and C. Vang, acting as Agents), Kingdom of Sweden (represented by: K. Petkovska, acting as Agent)

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 9 June 2010, Éditions Jacob v Commission (T-237/05), annulling the Commission’s decision of 7 April 2005 (D(2005) 3286), to the extent that it refuses the appellant access to the documents concerning the merger control proceedings COMP/M.2978 Lagardère/Natexis/VUP — Documents relating to merger control procedures — Exception relating to the protection of the purpose of investigations — Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access

Operative part of the judgment

The Court:

1.	Sets aside paragraphs 2 to 6 of the operative part of the judgment of the General Court of the European Union in Case T-237/05 Éditions Jacob v Commission;

2.	Dismisses the cross-appeal;

3.	Dismisses the action brought before the General Court of the European Union seeking annulment of Commission Decision D(2005) 3286 of 7 April 2005, dismissing the application of Éditions Odile Jacob SAS for access to documents relating to merger control procedure COMP/M.2978 — Lagardère/Natexis/VUP;

4.	Orders Éditions Odile Jacob SAS to bear its own costs and pay those incurred by the Commission and Lagardère both at first instance and on appeal;

5.	Orders the Czech Republic, the Kingdom of Denmark, the French Republic and the Kingdom of Sweden to bear their own costs.

(1) OJ C 274, 9.10.2010.

25.8.2012

Official Journal of the European Union

C 258/4

Judgment of the Court (Third Chamber) of 28 June 2012 — European Commission v Agrofert Holding a.s., Polski Koncern Naftowy Orlen SA, Kingdom of Denmark, Republic of Finland, Kingdom of Sweden

(Case C-477/10 P) (1)

(Appeal - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Documents relating to merger control proceedings - Regulation (EC) No 139/2004 - Refusal of access - Exceptions relating to the protection of the purpose of investigations, commercial interests, legal advice and the decision-making process of the institutions)

2012/C 258/05

Language of the case: English

Parties

Appellant: European Commission (represented by: B. Smulders, P. Costa de Oliveira and V. Bottka, acting as Agents)

Other parties to the proceedings: Agrofert Holding a.s. (represented by: R. Pokorný and D. Šalek, advokáti), Polski Koncern Naftowy Orlen SA (represented by: S. Sołtysiński, K. Michałowska and A. Krasowska Skowrońska, lawyers), Kingdom of Denmark (represented by: S. Juul Jørgensen, Agent), Republic of Finland, Kingdom of Sweden (represented by: K. Petkovska and S. Johannesson, Agents)

Re:

Appeal against the judgment of the General Court (First Chamber) of 7 July 2010 in Case T-111/07 Arofert Holding a.s. v Commission, by which that Court annulled Commission Decision D(2007) 1360 of 13 February 2007, refusing to grant the applicant access to certain unpublished documents relating to a procedure concerning a merger between undertakings (Case COMP/M.3543 — PKN Orlen v Unipetrol)

Operative part of the judgment

The Court:

Annuls paragraph 2 of the operative part of the judgment of the General Court of the European Union of 7 July 2010 in Case T-111/07 Agrofert Holding v Commission in so far as it annuls Commission Decision D(2007) 1360 of 13 February 2007 refusing access to the documents of Case COMP/M.3543 concerning the merger between Polski Koncern Naftowy Orlen SA and Unipetrol, exchanged between the Commission and the notifying parties and between the Commission and third parties;

2.	Annuls paragraph 3 of the operative part of that judgment;

3.	Dismisses the appeal as to the remainder;

Dismisses the action brought by Agrofert Holding a.s. before the General Court of the European Union seeking the annulment of Commission Decision D(2007) 1360 of 13 February 2007 refusing access to the documents in Case COMP/M.3543 concerning the merger between Polski Koncern Naftowy Orlen SA and Unipetrol, exchanged between the Commission and the notifying parties and between the Commission and the third parties;

5.	Orders the European Commission and Agrofert Holding a.s. to bear their own costs both at first instance and in this appeal;

6.	Orders Polski Koncern Naftowy Orlen SA and the Kingdom of Sweden to bear their own costs.

(1) OJ C 328 4.12.2010.

25.8.2012

Official Journal of the European Union

C 258/4

Judgment of the Court (Sixth Chamber) of 28 June 2012 — European Commission v Hellenic Republic

(Case C-485/10) (1)

(Failure of a Member State to fulfil obligations - State aid - Aid granted to Ellinika Nafpigeia AE - Incompatibility with the common market - Recovery - Non-execution)

2012/C 258/06

Language of the case: Greek

Parties

Applicant: European Commission (represented by: B. Stromsky and M. Konstantinidis, acting as Agents)

Defendant: Hellenic Republic (represented by: P. Milonopoulos and K. Boskovits, acting as Agents, V. Christianos, lawyer)

Re:

Failure of a Member State to fulfil obligations — Failure to have taken, within the period prescribed, the measures necessary to comply with Commission Decision 2009/610/EC of 2 July 2008 on aid C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) granted by Greece to Hellenic Shipyards SA (notified under number C(2008) 3118) (OJ 2008 L 225, p. 104)

Operative part of the judgment

The Court:

Declares that, by failing to take, within the period prescribed, all the measures necessary in order to implement Commission Decision 2009/610/EC of 2 July 2008 on aid C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) granted by Greece to Hellenic Shipyards SA, and by failing to provide the information listed in Article 19 of that decision to the European Commission, the Hellenic Republic failed to fulfil its obligations under Articles 2, 3, 5, 6, 8, 9 and 11 to 19 of that decision;

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 328, 4.12.2010.

25.8.2012

Official Journal of the European Union

C 258/5

Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Tribunale di Palermo — Italy) — Criminal proceedings against Fabio Caronna

(Case C-7/11) (1)

(Medicinal products for human use - Directive 2001/83/EC - Article 77 - Wholesale distribution of medicinal products - Mandatory special authorisation for pharmacists - Conditions for granting)

2012/C 258/07

Language of the case: Italian

Referring court

Tribunale di Palermo

Party in the main proceedings

Fabio Caronna

Re:

Reference for a preliminary ruling — Tribunale di Palermo –Interpretation of recital 36 and Articles 76 to 84 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67) — Wholesale distribution of medicinal products — Conditions under which authorisation may be granted for the wholesale distribution of medicinal products — National legislation which makes the wholesale distribution of medicinal products by pharmacists and persons authorised or entitled to supply medicinal products to the public subject to the requirement to obtain an authorisation imposed on wholesale distributors — Whether permissible

Operative part of the judgment

Article 77(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Commission Directive 2009/120/EC of 14 September 2009, must be interpreted as meaning that the requirement to obtain authorisation for the wholesale distribution of medicinal products is applicable to a pharmacist who, as a natural person, is also authorised under domestic law to operate as a wholesaler in medicinal products.

2.	A pharmacist who is also authorised under domestic law to operate as a wholesaler in medicinal products must satisfy all the requirements imposed on applicants for and holders of authorisation for the wholesale distribution of medicinal products in Articles 79 to 82 of the Directive.

3.	That interpretation cannot, of itself and independently of a law adopted by a Member State, give rise to or aggravate liability in criminal law on the part of a pharmacist who has engaged in activity as a wholesale distributor in medicinal products without the requisite authorisation.

(1) OJ C 80, 12.3.2011.

25.8.2012

Official Journal of the European Union

C 258/5

Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Markus Geltl v Daimler AG

(Case C-19/11) (1)

(Directives 2003/6/EC and 2003/124/EC - Inside information - Notion of ‘precise information’ - Intermediate steps in a protracted process - Reference to circumstances or an event which may reasonably be expected to come into existence or occur - Interpretation of the wording ‘may reasonably be expected’ - Public disclosure of information relating to change of a manager of a company)

2012/C 258/08

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Markus Geltl

Defendant: Daimler AG

In the presence of: Lothar Meier and Others

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 1, point 1 of European Parliament and Council Directive 2003/6/EC of 28 January 2003 on insider dealing and market manipulation (OJ 2003 L 96, p. 16) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC (OJ 2003 L 339, p. 70) — Interpretation of the expression ‘privileged information’ — Resignation of the chairman of a limited liability company — Whether various consultations and steps prior to the event in question needing to be taken into account in order to assess the precise nature of such information

Operative part of the judgment

Point 1 of Article 1 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6 as regards the definition and public disclosure of inside information and the definition of market manipulation must be interpreted as meaning that, in the case of a protracted process intended to bring about a particular circumstance or to generate a particular event, not only may that future circumstance or future event be regarded as precise information within the meaning of those provisions, but also the intermediate steps of that process which are connected with bringing about that future circumstance or event;

Article 1(1) of Directive 2003/124 must be interpreted as meaning that the notion of ‘a set of circumstances which exists or may reasonably be expected to come into existence or an event which has occurred or may reasonably be expected to do so’ refers to future circumstances or events from which it appears, on the basis of an overall assessment of the factors existing at the relevant time, that there is a realistic prospect that they will come into existence or occur. However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration.

(1) OJ C 113, 9.4.2011.

25.8.2012

Official Journal of the European Union

C 258/6

Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Arbeitsgericht Ludwigshafen am Rhein (Germany)) — Georges Erny v Daimler AG — Werk Wörth

(Case C-172/11) (1)

(Freedom of movement for workers - Article 45 TFEU - Regulation (EEC) No 1612/68 - Article 7(4) - Principle of non-discrimination - Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement - Cross-border workers subject to income tax in the Member State of residence - Notional taking into account of the tax on wages of the Member State of employment)

2012/C 258/09

Language of the case: German

Referring court

Arbeitsgericht Ludwigshafen am Rhein

Parties to the main proceedings

Applicant: Georges Erny

Defendant: Daimler AG — Werk Wörth

Re:

Reference for a preliminary ruling — Arbeitsgericht Ludwigshafen am Rhein, Landau Divisions — Interpretation of Article 45 TFEU and of Article 7(4) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English special edition 1968 (II), p. 475) — Top-up amount on wages paid to workers placed on a scheme of part-time work prior to retirement — Less favourable pay for cross-border workers subject to income tax only in their State of residence as a result of the taking into account, when calculating that top-up amount, of the tax on wages notionally payable in the State of employment

Operative part of the judgment

Article 45 TFEU and Article 7(4) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community preclude clauses in collective and individual agreements under which a top-up amount such as that at issue in the main proceedings, which is paid by an employer under a scheme of part-time working for older employees in preparation for retirement, must be calculated in such a way that the tax on wages payable in the Member State of employment is notionally deducted when the basis for the calculation of that top-up amount is being established, even though, under a tax convention for the avoidance of double taxation, the pay, salaries and similar remuneration paid to workers who do not reside in the Member State of employment are taxable in their Member State of residence. In accordance with Article 7(4) of Regulation No 1612/68, such clauses are null and void. Article 45 TFEU and the provisions of Regulation No 1612/68 leave the Member States or the social partners free to choose between the different solutions suitable for achieving the objective of those respective provisions.

(1) OJ C 226 30.7.2011.

25.8.2012

Official Journal of the European Union

C 258/7

Judgment of the Court (Fifth Chamber) of 28 June 2012 — XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Natura Selection, SL

(Case C-306/11 P) (1)

(Appeals - Community trade mark - Regulation (EC) No 40/94 - Figurative mark Linea Natura Natur hat immer Stil - Opposition by the proprietor of the Community figurative mark natura selection - Relative grounds for refusal - Likelihood of confusion)

2012/C 258/10

Language of the case: German

Parties

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

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, acting as Agent), Natura Selection, SL

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 24 March 2011 in Case T-54/09 XXXLutz Marken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil) dismissing the action brought against the decision of the Second Board of Appeal of OHIM of 28 November 2008 (Case R 1787/2007-2) relating to opposition proceedings between Natura Selection, SL and XXXLutz Marken GmbH — Likelihood of confusion between the figurative signs ‘natura selection’ and ‘Linea Natura Natur hat immer Stil’ — Erroneous assessment of the similarity of those signs — Infringement of Article 8(1)(b) of Regulation (EC) No 40/94

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders XXXLutz Marken GmbH to pay the costs.

(1) OJ C 238, 13.8.2011.

25.8.2012

Official Journal of the European Union

C 258/7

Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Korkein oikeus, Finland) — Execution of a European arrest warrant in respect of Melvin West

(Case C-192/12 PPU) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant and surrender procedures between Member States - European arrest warrant issued for the purposes of execution of a custodial sentence - Article 28 - Subsequent surrender - ‘Chain’ of European arrest warrants - Execution of a third European arrest warrant in respect of the same person - Concept of ‘executing Member State’ - Consent to surrender - Urgent preliminary ruling procedure)

2012/C 258/11

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Melvin West

Re:

Reference for a preliminary ruling — Korkein oikeus — Interpretation of Article 28(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Arrest warrant for the execution of a custodial sentence — Concept of ‘executing Member State’ in the case of subsequent surrender — National of Member State A surrendered by that Member State to Member State B for the execution of a term of imprisonment and then, after the end of that term, by Member State B to Member State C for the execution of a term of imprisonment in that State — Request by Member State D to Member State C, under an arrest warrant, for the person concerned to be surrendered to Member State D for the execution of a sentence of imprisonment

Operative part of the judgment

Article 28(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where a person has been subject to more than one surrender between Member States pursuant to successive European arrest warrants, the subsequent surrender of that person to a Member State other than the Member State having last surrendered him is subject to the consent only of the Member State which carried out that last surrender.

(1) OJ C 184, 23.6.2012.

25.8.2012

Official Journal of the European Union

C 258/8

Order of the Court (Seventh Chamber) of 27 April 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v U. Notermans-Boddenberg

(Case C-114/11) (1)

(Articles 18 EC and 39 EC - Motor vehicles - Use in a Member State of a private motor vehicle registered in another Member State - Taxation of that vehicle in the first Member State on the occasion of its first use on the national road network - Vehicle taken at the time of moving to the first Member State and used for both private use and for going to the place of work situated in the second Member State)

2012/C 258/12

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: U. Notermans-Boddenberg

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 18 EC and 39 EC (now Articles 21 TFEU and 45 TFEU) — National rules requiring payment of a registration tax on the occasion of the first use of a vehicle on the national road network — Imposition of that tax on a person who has transferred residence from another Member State, is a national of that Member State and uses, on a permanent basis, a vehicle registered in that Member State, and included in the transfer of residence, for purposes of private and work-related use involving work-related travel to that other Member State

Operative part of the order

Article 39 EC must be interpreted as not precluding legislation of a Member State which requires its residents who have moved from another Member State and have taken with them a vehicle registered in that latter Member State, on the occasion of the first use of that vehicle on the national road network, to pay a tax normally due on the registration of a vehicle in the first Member State, where that vehicle is essentially used permanently in the territory of that first Member State, even if that use includes journeys by those residents to their place of work in the second Member State.

(1) OJ C 152, 21.5.2011.

25.8.2012

Official Journal of the European Union

C 258/8

Order of the Court (Fifth Chamber) of 26 April 2012 — Deichmann SE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-307/11 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(b) - Absolute ground for refusal - Lack of distinctive character - Figurative sign representing a chevron edged with dotted lines)

2012/C 258/13

Language of the case: German

Parties

Appellant: Deichmann SE (represented by: O. Rauscher, lawyer)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, acting as Agent)

Re:

Appeal brought against the judgment of the General Court (Seventh Chamber) of 13 April 2011 in Case T-202/09 Deichmann SE v OHIM, by which the General Court dismissed the action for annulment of the decision of the Fourth Board of Appeal of OHIM of 3 April 2009 dismissing the appeal against the examiner’s decision, which refused registration of the figurative sign representing a chevron edged with dotted lines as a Community trade mark for certain goods in Classes 10 and 25 — Distinctive character of the mark

Operative part of the order

1.	The appeal is dismissed.

2.	Deichmann SE shall pay the costs.

(1) OJ C 269, 10.9.2011.

25.8.2012

Official Journal of the European Union

C 258/8

Appeal brought on 11 May 2012 by the European Commission against the judgment delivered by the General Court (First Chamber) on 2 March 2012 in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission

(Case C-224/12 P)

2012/C 258/14

Languages of the case: Dutch and English

Parties

Appellant: European Commission (represented by: L. Flynn, S. Noë and H. Van Vliet, Agents)

Other parties to the proceedings:

Kingdom of the Netherlands

ING Groep NV

De Nederlandsche Bank NV

Form of order sought

—	Set aside the judgment of the General Court (First Chamber) of 2 March 2012, notified to the Commission on 6 March 2012, in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission; and

—	dismiss the applications for partial annulment of the decision of the European Commission (1) of 18 November 2009 on State aid C 10/09 (ex N 138/2009) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan;

—	order the applicants to pay the costs;

—

in the alternative,

—	refer the case back to the General Court for reconsideration;

—	reserve the costs of the proceedings at first instance and on appeal, or, in the further alternative,

—	annul the third paragraph of Article 2 of the decision at issue;

—	order the applicants to pay the costs of the appeal.

Pleas in law and main arguments

The Commission maintains that the judgment under appeal should be set aside on the following grounds:

First , there is no requirement in law to apply the market economy investor principle in relation to an amendment of repayment conditions for a measure that itself constituted State aid.

Second , the General Court wrongly evaluated the loss of revenue to the Member State resulting from the modified repayment conditions examined in the Commission’s decision of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan (‘the decision at issue’).

Third , even if the Commission was wrong to treat the modified repayment conditions as State aid, the General Court was not entitled to annul the first paragraph of Article 2 of the decision at issue in its entirety.

Fourth , the General Court erred in law in finding that the second paragraph of Article 2 of the decision at issue was necessarily unlawful because the Commission had erred in finding that the modified repayment conditions constituted State aid.

Fifth , the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the decision at issue and Annex II thereto.

Sixth , in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the decision at issue and Annex II thereto, it also had to annul the third paragraph of Article 2 of the decision at issue.

(1) Decision 2010/608/EC (OJ 2010 L 274, p. 139).

25.8.2012

Official Journal of the European Union

C 258/9

Reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium), lodged on 29 May 2012 — Citroën Belux NV v Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)

(Case C-265/12)

2012/C 258/15

Language of the case: Dutch

Referring court

Hof van Beroep te Brussel

Parties to the main proceedings

Appellant: Citroën Belux NV

Respondent: Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)

Questions referred

Must Article 3(9) of Directive 2005/29/EC (1) be interpreted as precluding a provision, such as Article 72 WMPC, (2) which — subject to the cases which are exhaustively listed in the law — generally prohibits any combined offer to the consumer as soon as at least one component is a financial service?

Must Article 56 TFEU, concerning the freedom to provide services, be interpreted as precluding a provision, such as Article 72 WMPC, which — subject to the cases which are exhaustively listed in the law — generally prohibits any combined offer to the consumer as soon as at least one component is a financial service?

(1) Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

(2) Wet betreffende marktpraktijken en consumentenbescherming (Belgian Law on Market Practices and Consumer Protection).

25.8.2012

Official Journal of the European Union

C 258/10

Appeal brought on 29 May 2012 by Jarosław Majtczak against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Case T-227/09: Feng Shen Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-266/12 P)

2012/C 258/16

Language of the case: English

Parties

Appellant: Jarosław Majtczak (represented by: J. Radłowski, radca prawny)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Feng Shen Technology Co. Ltd

Form of order sought

By the present appeal the appellant asks the Court of Justice to:

—	annul in its entirety the judgment of the General Court of 21 March 2012 in case T-227/09 and dismiss the applicant's suit or in the alternative;

—	annul in its entirety the judgment of the General Court of 21 March 2012 in case T-227/09 and refer the case back to the General Court;

—	adjudicate the costs in favour of the appellant.

Pleas in law and main arguments

The appellant submits that the contested judgment infringes article 52(1)(b) of Council Regulation (EC) No 40/94 (1) on the Community trade mark, as amended (replaced by Council Regulation (EC) No 207/2009 (2) (on the Community trade mark), particularly with regard to the General Court's interpretation of the concept of ‘acting in bad faith’.

The appellant also submits that the General Court has breached procedure by making erroneous findings of fact and by being selective in its assessment of the evidence produced.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version)

OJ L 78, p. 1

25.8.2012

Official Journal of the European Union

C 258/10

Appeal brought on 30 May 2012 by Cadila Healthcare Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 March 2012 in Case T-288/08: Cadila Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-268/12 P)

2012/C 258/17

Language of the case: English

Parties

Appellant: Cadila Healthcare Ltd (represented by: S. Malynicz, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Novartis AG

Form of order sought

The appellant seeks the following Order:

—	The judgment of the General Court in case T-288/08 dated 15 March 2012 shall be annulled.

—	The Office and intervener shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

The appellant submits that the contested judgment shall be annulled on the following grounds:

The General Court breached Article 113 of the Rules of Procedure in that it should have ruled that the proceedings had become devoid of purpose in light of the fact that by the date of the judgment the earlier mark had not been renewed and further that the additional six months grace period under Article 47(3) CTMR (1) had expired.

On the question of phonetic similarity, the General Court distorted the evidence and incorrectly assessed the facts, and its decision contains a substantive inaccuracy in the findings attributable to the documents submitted to it.

The General Court failed to take into account of the involvement of professionals in the sale of pharmaceutical products.

On the question of visual similarity, the General court misapplied its own case law to the effect that the beginnings of marks are generally considered to be the most important and that in marks which are relatively short such as those in this case, the central elements are as important as the elements at the beginning and end of the sign.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

25.8.2012

Official Journal of the European Union

C 258/11

Reference for a preliminary ruling from High Court of Ireland made on 11 June 2012 — Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General

(Case C-293/12)

2012/C 258/18

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Digital Rights Ireland Ltd

Defendants: Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General

Questions referred

Is the restriction on the rights of the Plaintiff in respect of its use of mobile telephony arising from the requirements of Articles 3, 4, and 6 of Directive 2006/24/EC (1) incompatible with Article 5.4 TEU in that it is disproportionate and unnecessary or inappropriate to achieve the legitimate aims of:

(a)	Ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime? and/or

(b)	Ensuring the proper functioning of the internal market of the European Union?

Specifically,

(i)	Is Directive 2006/24/EC compatible with the right of citizens to move and reside freely within the territory of Member States laid down in Article 21 TFEU?

(ii)	Is Directive 2006/24/EC compatible with the right to privacy laid down in Article 7 of the Charter and Article 8 ECHR?

(iii)

Is Directive 2006/24/EC compatible with the right to the protection of personal data laid down in Article 8 of the Charter?

(iv)	Is Directive 2006/24/EC compatible with the right to freedom of expression laid down in Article 11 of the Charter and Article 10 ECHR?

(v)	Is Directive 2006/24/EC compatible with the right to Good Administration laid down in Article 41 of the Charter?

To what extent do the Treaties — and specifically the principle of loyal cooperation laid down in Article 4.3 of the Treaty on European Union -require a national court to inquire into, and assess, the compatibility of the national implementing measures for Directive 2006/24/EC with the protections afforded by the Charter of Fundamental Rights, including Article 7 thereof (as informed by Article 8 of the ECHR)?

(1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC

OJ L 105, p. 54

25.8.2012

Official Journal of the European Union

C 258/12

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 June 2012 — Cascina Tre Pini s.s. v Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others

(Case C-301/12)

2012/C 258/19

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Cascina Tre Pini s. s.

Defendants: Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others

Questions referred

Is the proper application of Articles 9 and 10 of Directive 92/43/EEC (1) prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the [Sites of Community Importance, ‘SCIs’], but no obligation is placed on them to exercise that power in response to a reasoned request to that effect made by private owners of land falling within SCIs, even where those private individuals argue that the land has suffered environmental degradation?

Is the proper application of Articles 9 and 10 of Directive 92/43/EEC prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the SCIs, through a periodic assessment, but the frequency with which that review must be conducted (every two or three years, for example) is not specified and there is no obligation for notice to be given of the periodic review by the Regions and Autonomous Provinces by means of some form of general advertising campaign designed to enable stakeholders to submit comments or proposals?

Is the proper application of Articles 9 and 10 of Directive 92/43/EEC prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which a power of initiative is conferred on the Regions and Autonomous Provinces in relation to the review of the SCIs, but no power of initiative is also conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act?

II.

… Must the procedure governed by Article 9 [of Directive] 92/43/EEC, implemented by the national legislature by means of Article 3(4a) of Decree No 357/97 of the President of the Republic, be interpreted as a procedure which must close with the adoption of an administrative act, or as a procedure the outcome of which is merely ‘optional’? Is it necessary to construe a ‘procedure which must close with the adoption of an administrative act’ as a procedure which ‘where the conditions are satisfied, consists in the transmission of the regional proposal, by the Ministry of the Environment and the Protection of the Land, to the European Commission’, there being no need in that regard for any consideration as to whether it must be construed as a procedure which may be instigated only by the authority of its own motion or whether it may also be instigated at the request of a party?

III.

Does Community law and, in particular, Directive 92/43/EEC preclude legislation of a Member State under which it is necessary to initiate the declassification procedure, rather than to adopt further monitoring and protection measures, on the basis of a report from a private party concerning the degree of degradation of the site?

2.	Does Community law and, in particular, Directive 92/43/EEC preclude legislation of a Member State under which the declassification procedure must be initiated in relation to a site covered by the Natura 2000 network in order to protect exclusively private interests of a commercial nature?

Does Community law and, in particular, Directive 92/43/EEC preclude legislation of a Member State under which, in the context of infrastructure projects in the general, social and economic interest — acknowledged also by the European Union — which may be detrimental to a natural habitat recognised in accordance with that directive, it is necessary to initiate a procedure for the declassification of the site rather than to adopt countervailing measures to ensure the overall coherence of the Natura 2000 network?

Does Community law and, in particular, Directive 92/43/EEC preclude legislation of a Member State under which, as regards natural habitats, importance is attributed to the commercial interests of individual owners, enabling them to obtain from the national court a decision requiring the boundaries of the site to be re-drawn?

5.	Does Community law and, in particular, Directive 92/43/EEC preclude legislation of a Member State under which provision is made for a site to be declassified where it has suffered degradation which is anthropogenic and not natural in origin?

(1) OJ L 206, p. 7.

25.8.2012

Official Journal of the European Union

C 258/13

Reference for a preliminary ruling from the Højesteret (Denmark), lodged on 29 June 2012 — Metro Cash & Carry Danmark ApS v Skatteministeriet

(Case C-315/12)

2012/C 258/20

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Appellant: Metro Cash & Carry Danmark ApS

Respondent: Skatteministeriet

Questions referred

Are Directive 92/12 (1) and Regulation No 3649/92 (2) to be interpreted as meaning that a trader in a Member State who, in circumstances such as those arising in the main proceedings, sells goods subject to excise duty which have been released for consumption in that Member State and which are supplied at the vendor’s place of business to a purchaser who is resident in another Member State, without the vendor assisting in the provision or arrangement of transport, must carry out (i) a check to determine whether the purchase of the goods which are subject to duty is made with a view to their importation into that second Member State and (ii) a check to determine whether the goods are to be imported for private or commercial use?

If Question 1 is answered in the affirmative, must the trader, at the time of the sale of goods subject to excise duty in circumstances such as those arising in the main proceedings, when carrying out the checks referred to, apply rules of presumption as to the purchaser’s intention with regard to the goods purchased?

If Question 1 is answered in the affirmative, are Directive 92/12 and Regulation No 3649/92 to be interpreted as meaning that a vendor, as referred to in Question 1, in circumstances such as those arising in the main proceedings, must refuse to accede to a purchaser’s wish to purchase goods subject to excise duty if the purchaser does not offer to present copy 1 of the simplified accompanying document referred to in Article 4 of Regulation No 3649/92, if the intention in making the purchase is to use the dutiable goods for commercial purposes in the purchaser’s home country? An answer to this question is also requested in the event that rules of presumption, as referred to in Question 2, are to be applied.

4.	Do the entry into force of Directive 2008/118 (3) and the repeal of Directive 92/12 give rise to a change in the legal position as regards the implications of Directive 92/12 in relation to the answers to Questions 1 to 3?

Is the phrase ‘products acquired by private individuals for their own use’ in Article 8 of Directive 92/12 (see Article 32(1) of Directive 2008/118) to be interpreted as meaning that it covers, or can cover, purchases of goods subject to excise duty in circumstances such as those arising in the main proceedings? If the answer to that question is in the negative, must the purchases then come under Article 7 of Directive 92/12 and/or Article 33 of Directive 2008/118?

(1) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

(2) Commission Regulation (EEC) No 3649/92 of 17 December 1992 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch (OJ 1992 L 369, p. 17).

(3) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

25.8.2012

Official Journal of the European Union

C 258/13

Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 2 July 2012 — Criminal proceedings against Daniel Lundberg

(Case C-317/12)

2012/C 258/21

Language of the case: Swedish

Referring court

Svea hovrätt

Party to the main proceedings

Daniel Lundberg

Questions referred

Must the expression ‘non-commercial carriage of goods’ in Article 3(h) of Regulation (EC) No 561/2006 (1) be interpreted as covering carriage of goods by a private individual as part of his hobby but which is in part financed by financial contributions (sponsorship) from external persons or undertakings?

Is it relevant to the assessment of what constitutes ‘non-commercial carriage’:

(a)	that the driver makes the journey only for his own purposes?

(b)	that no payment is made for the carriage per se?

(c)	how large the financial contribution is and/or how large the financial contribution is in relation to the total cost of the hobby activity?

(1) Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (Text with EEA relevance) — Declaration (OJ 2006 L 102, p. 1).

25.8.2012

Official Journal of the European Union

C 258/14

Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 2 July 2012 — Malaysia Dairy Industries Pte. Ltd v Ankenævnet for Patenter og Varemærker

(Case C-320/12)

2012/C 258/22

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicant: Malaysia Dairy Industries Pte. Ltd

Defendant: Ankenævnet for Patenter og Varemærker

Questions referred

Is the concept of bad faith in Article 4(4)(g) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (1) an expression of a legal standard which may be filled out in accordance with national law, or is it a concept of European Union law which must be given a uniform interpretation throughout the European Union?

If the concept of bad faith in Article 4(4)(g) of Directive 2008/95/EC is a concept of European Union law, must the concept be understood as meaning that it may suffice that the applicant knew or should have known of the foreign mark at the time of filing the application, or is there a further requirement concerning the applicant’s subjective position in order for registration to be denied?

3.	Can a Member State choose to introduce a specific protection of foreign marks which, in relation to the requirement of bad faith, differs from Article 4(4)(g) of Directive 2008/95/EC, for example by laying down a special requirement that the applicant knew or should have known of the foreign mark?

(1) Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).

General Court

25.8.2012

Official Journal of the European Union

C 258/15

Judgment of the General Court of 12 July 2012 — Evropaïki Dynamiki v Frontex

(Case T-476/07) (1)

(Public service contracts - Frontex tendering procedures - Provision of informatics services - Rejection of a tender - Action for annulment - Admissibility - Obligation to state reasons - Award criteria - Manifest error of assessment - Non-contractual liability)

2012/C 258/23

Language of the case: English

Parties

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

Defendant: European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) (represented by: S. Vuorensola, acting as Agent, and J. Stuyck and A. M. Vandromme, lawyers)

Re:

First, annulment of Frontex’s decision rejecting the tender submitted by the applicant in response to the call for tenders Frontex/OP/47/2007 for the provision of ‘informatics services, hardware, and software licences’ (OJ 2007/S 114-139890) and of the decision to award the contract to a different tenderer and, secondly, a claim for damages

Operative part of the judgment

The Court:

1.	Dismisses the action;

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), including those reserved by the order of the General Court of 28 October 2008.

(1) OJ C 51, 23.2.2008.

25.8.2012

Official Journal of the European Union

C 258/15

Judgment of the General Court of 22 May 2012 — Evropaïki Dynamiki v Commission

(Case T-17/09) (1)

(Public services contracts - Tender procedure - Provision of informatics services for an electronic exchange of social security information project (EESSI project) in the field of the coordination of social security for persons mobile in Europe - Rejection of bid submitted by a tenderer - Award of the contract - Obligation to state the reasons on which the decision is based - Transparency - Equal treatment - Manifest error of assessment - No interest in bringing proceedings - Non contractual liability)

2012/C 258/24

Language of the case: English

Parties

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

Defendant: European Commission (represented by: N. Bambara and E. Manhaeve, Agents, and initially by W. Sparks, Solicitor, subsequently by E. Petritsi, lawyer, and latterly by O. Graber-Soudry, Solicitor)

Re:

Application, first, for annulment of the Commission’s decision rejecting the tender submitted by the applicant in respect of the call for tenders VT/2008/019 EMPL EESSI for the provision of informatics products and services for the EESSI project (OJ 2008/S 111–148 213) and of the decision to award the contract to another tenderer and, secondly, 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.

(1) OJ C 82, 4.4.2009.

25.8.2012

Official Journal of the European Union

C 258/16

Judgment of the General Court of 13 July 2012 — Caixa Geral de Depósitos v OHIM — Caixa d’Estalvis i Pensions de Barcelona (‘la Caixa’)

(Case T-255/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark la caixa - Earlier Portuguese word mark CAIXA - Earlier national word and figurative marks - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2012/C 258/25

Language of the case: Spanish

Parties

Applicant: Caixa Geral de Depósitos, SA (Lisbon, Portugal) (represented by: F. Porcuna de la Rosa and M. Lobato García-Miján, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Caixa d’Estalvis i Pensions de Barcelona (Barcelona, Spain) (represented by: E. Manresa Medina and J. Manresa Medina, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 24 March 2009 (Case R 556/2008-2), relating to opposition proceedings between Caixa d’Estalvis i Pensions de Barcelona and Caixa Geral de Depósitos, SA.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 March 2009 (Case R 556/2008-2) as regards the goods covered by the mark applied for in Class 16;

2.	Dismisses the action as to the remainder;

3.	Orders Caixa Geral de Depósitos, SA to bear two thirds of its own costs and to pay two thirds of the costs incurred by OHIM and two thirds of the costs incurred by Caixa d’Estalvis i Pensions de Barcelona.

4.	Orders OHIM to bear one third of its own costs and to pay one third of the costs incurred by Caixa Geral de Depósitos and one third of the costs incurred by Caixa d’Estalvis i Pensions de Barcelona.

(1) OJ C 193, 15.8.2009.

25.8.2012

Official Journal of the European Union

C 258/16

Judgment of the General Court of 12 July 2012 — Aiello v OHIM — Cantoni ITC (100 % Capri)

(Case T-279/09) (1)

(Community trade mark - Opposition proceedings - Notification of the opposing party’s pleading before the Board of Appeal - Rules 50(1), 20(2) and 67(1) of Regulation (EC) No 2868/95 - Rights of the defence)

2012/C 258/26

Language of the case: Italian

Parties

Applicant: Antonino Aiello (Vico Equense, Italy) (represented by: M. Coccia and L. Pardo, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Cantoni ITC SpA (Milan, Italy)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 2 April 2009 (Case R 1148/2008-1), relating to opposition proceedings between Cantoni ITC SpA and Antonino Aiello.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 April 2009 (Case R 1148/2008-1);

2.	Orders OHIM to pay the costs.

(1) OJ C 220, 12.9.2009.

25.8.2012

Official Journal of the European Union

C 258/16

Judgment of the General Court of 12 July 2012 — Winzer Pharma v OHIM — Alcon (BAÑOFTAL)

(Case T-346/09) (1)

(Community trade marks - Opposition proceedings - Application for Community trade mark BAÑOFTAL - Earlier national word marks KAN-OPHTAL and PAN-OPHTAL - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 258/27

Language of the case: Spanish

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S.Schneller, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Alcon Inc. Hünenberg, Switzerland) (represented by: M. Vidal-Quadras Trais de Bes, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 May 2009 (Case R 795/2008-1) relating to opposition proceedings between Dr. Robert Winzer Pharma GmbH and Alcon Inc.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 May 2009 (Case R 795/2008-1);

2.	Orders OHIM to bear its own costs and to pay those incurred by Dr. Robert Winzer Pharma GmbH.

3.	Orders Alcon Inc. to bear its own costs.

(1) OJ C 256, 24.10.2009.

25.8.2012

Official Journal of the European Union

C 258/17

Judgment of the General Court of 12 July 2012 — medi v OHIM (medi)

(Case T-470/09) (1)

(Community trade mark - Application for the Community word mark medi - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) and (2) of Regulation No 207/2009)

2012/C 258/28

Language of the case: German

Parties

Applicant: medi GmbH & Co. KG (Bayreuth, Germany) (represented by: H. Lindner, D. Terheggen and T. Kiphuth, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially S. Schäffner and subsequently G. Schneider, Agents)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 October 2009 (Case R 692/2008-4), concerning an application for registration of the word sign medi as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Medi GmbH & Co. KG to pay the costs.

(1) OJ C 24, 30.1.2010.

25.8.2012

Official Journal of the European Union

C 258/17

Judgment of the General Court of 12 July 2012 — Commission v Nanopoulos

(Case T-308/10) (1)

(Appeal - Civil service - Officials - Duty to provide assistance - Article 24 of the Staff Regulations - Non-contractual liability - Articles 90 and 91 of the Staff Regulations - Damages claim to be submitted within a reasonable time - Time-limit for reply - Institution of disciplinary proceedings - Criterion requiring a ‘sufficiently serious breach’ - Personal data leaked to the press - Failure to assign tasks corresponding to an official’s grade - Amount of damages)

2012/C 258/29

Language of the case: Greek

Parties

Appellant: European Commission (represented by: J. Currall, Agent, E. Bourtzalas and E. Antypas, lawyers)

Other party to the proceedings: Fotios Nanopoulos (Itzig, Luxembourg) (represented by: V. Christianos, lawyer)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 11 May 2010 in Case F-30/08 Nanopoulos v Commission, not yet published in the ECR, seeking, first, to have that judgment set aside and, second, if the judgment is to be upheld, to have the exact amount of damages set.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Commission to bear its own costs and to pay the costs incurred by Mr Nanopoulos in the appeal proceedings.

(1) OJ C 274, 9.10.2010.

25.8.2012

Official Journal of the European Union

C 258/18

Judgment of the General Court of 12 July 2012 — Leifheit v OHIM — Vermop Salmon (Twist System)

(Case T-334/10) (1)

(Community trade mark - Invalidity proceedings - Community word mark Twist System - Earlier Community word marks TWIX and TWIXTER - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

2012/C 258/30

Language of the case: German

Parties

Applicant: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, O. Sude and M. Ring, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 May 2010 (Joined Cases R 924/2009-1 and R 1013/2009-1), relating to invalidity proceedings between Vermop Salmon GmbH and Leifheit AG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Leifheit AG to pay the costs.

(1) OJ C 288, 23.10.2010.

25.8.2012

Official Journal of the European Union

C 258/18

Judgment of the General Court of 12 July 2012 — Pharmazeutische Fabrik Evers v OHIM — Ozone Laboratories Pharma (HYPOCHOL)

(Case T-517/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark HYPOCHOL - Earlier national figurative mark HITRECHOL - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 258/31

Language of the case: English

Parties

Applicant: Pharmazeutische Fabrik Evers GmbH & Co. KG (Pinneberg, Germany) (represented by: R. Kaase and R. Möller, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ozone Laboratories Pharma SA (București, Romania)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 1 September 2010 (Case R 1332/2009-4), concerning opposition proceedings between Pharmazeutische Fabrik Evers GmbH & Co. KG and Ozone Laboratories Pharma SA

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Pharmazeutische Fabrik Evers GmbH & Co. KG to pay the costs.

(1) OJ C 13, 15.1.2011.

25.8.2012

Official Journal of the European Union

C 258/18

Judgment of the General Court of 12 July 2012 — Vermop Salmon v OHIM — Leifheit (Clean Twist)

(Case T-61/11) (1)

(Community trade mark - Invalidity proceedings - Community word mark Clean Twist - Earlier Community word marks TWIX and TWIXSTER - Relative ground of refusal - No likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

2012/C 258/32

Language of the case: German

Parties

Applicant: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, M. Ring and O. Sude, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt and V. Töbelmann, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 19 November 2010 (Case R 671/2010-1), relating to invalidity proceedings between Vermop Salmon GmbH and Leifheit AG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Vermop Salmon GmbH to pay the costs.

(1) OJ C 89, 19.3.2011.

25.8.2012

Official Journal of the European Union

C 258/19

Judgment of the General Court of 12 July 2012 — Rivella International v OHIM — Baskaya di Baskaya Alim (BASKAYA)

(Case T-170/11) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark BASKAYA - Earlier international figurative mark Passaia - Proof of genuine use of the earlier mark - Relevant territory - Article 42(2) and (3) of Regulation (EC) No 207/2009)

2012/C 258/33

Language of the case: German

Parties

Applicant: Rivella International AG (Rothrist, Switzerland) (represented initially by: C. Spintig, U. Sander and H. Förster, and subsequently by C. Spintig, S. Pietzcker and R. Jacobs, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Baskaya di Baskaya Alim e C. Sas (Grosseto, Italy) (represented by: H. Vogler, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 10 January 2011 (Case R 534/2010-4), relating to opposition proceedings between Rivella International AG and Baskaya di Baskaya Alim e C. Sas

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Rivella International AG to pay the costs.

(1) OJ C 145, 14.5.2011.

25.8.2012

Official Journal of the European Union

C 258/19

Judgment of the General Court of 12 July 2012 — Wall v OHIM — Bluepod Media Worldwide (bluepod MEDIA)

(Case T-227/11) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark bluepod MEDIA - Earlier Community figurative mark blue spot and earlier international and national word marks BlueSpot - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 258/34

Language of the case: English

Parties

Applicant: Wall AG (Berlin, Germany) (represented by: A. Nordemann and T. Boddien, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bluepod Media Worldwide Ltd (London, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 10 February 2011 (Case R 301/2010-1) concerning opposition proceedings between Wall AG and Bluepod Media Worldwide Ltd

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Wall AG to pay the costs.

(1) OJ C 194, 2.7.2011.

25.8.2012

Official Journal of the European Union

C 258/19

Judgment of the General Court of 12 July 2012 — Unión de Cervecerías Peruanas Backus y Johnston v OHIM (shape of a bottle)

(Case T-323/11) (1)

(Community trade marks - Absolute grounds for refusal - Application for a three-dimensional trade mark - Shape of a bottle - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)

2012/C 258/35

Language of the case: Spanish

Parties

Applicant: Unión de Cervecerías Peruanas Backus y Johnston SAA (Lima, Peru) (represented by: E. Armijo Chávarri and C. Morán Medina, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 23 March 2011 (Case R 2238/2010-2) concerning an application for registration of a three-dimensional sign consisting in the shape of a bottle as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Unión de Cervecerías Peruanas Backus y Johnston SAA to pay the costs.

(1) OJ C 252, 27.8.2011.

25.8.2012

Official Journal of the European Union

C 258/20

Judgment of the General Court of 12 July 2012 — Hand Held Products v OHIM — Orange Brand Services (DOLPHIN)

(Case T-361/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark DOLPHIN - Earlier Community word mark DOLPHIN - Opposition refused in part - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 258/36

Language of the case: English

Parties

Applicant: Hand Held Products, Inc. (Wilmington, Delaware, United States) (represented by: J. Güell Serra and M. Curell Aguilà, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by P. Bullock and R. Pethke and subsequently by P. Bullock and G. Schneider, Agents)

Other party to the proceedings before the Board of Appeal of OHIM: Orange Brand Services Ltd (Bristol, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 April 2011 (Case R 1443/2010-1), concerning opposition proceedings between Hand Held Products, Inc. and Orange Brand Services Ltd.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 April 2011 (Case R 1443/2010-1) in so far as it rejected the opposition in respect of electrical and electronic accessories;

2.	Dismisses the action as to the remainder;

3.	Orders Hand Held Products, Inc. and OHIM each to bear their own costs.

(1) OJ C 269, 10.9.2011.

25.8.2012

Official Journal of the European Union

C 258/20

Judgment of the General Court of 12 July 2012 — Guccio Gucci v OHIM — Chang Qing Qing (GUDDY)

(Case T-389/11) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark GUDDY - Earlier Community word mark GUCCI - Relative ground for refusal - Likelihood of confusion - Highly distinctive character of the earlier mark by reason of the public’s recognition of that mark - Evidence - Article 8(1)(b) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2012/C 258/37

Language of the case: English

Parties

Applicant: Guccio Gucci SpA (Florence, Italy) (represented by: F. Jacobacci, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Chang Qing Qing (Florence)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 April 2011 (Case R 143/2010-1), relating to opposition proceedings between Guccio Gucci SpA and Mr Chang Qing Qing

Operative part of the judgment

The Court:

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 April 2011 (Case R 143/2010-1) so far as it concerns, first, the goods in Class 9 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and, secondly, the precious stones and precious metals in Class 14 of that agreement;

2.	Orders OHIM to pay the costs.

(1) OJ C 282, 24.9.2011.

25.8.2012

Official Journal of the European Union

C 258/21

Order of the General Court of 12 July 2012 — Compagnia Generale delle Acque v Commission

(Case T-264/00) (1)

(Annulment action - State aid - Reductions in social security contributions for undertakings in Venice and Chioggia - Commission decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid - Action partially inadmissible and partially manifestly devoid of any basis in law)

2012/C 258/38

Language of the case: Italian

Parties

Applicant: Compagnia Generale delle Acque SpA (Venice, Italy) (represented by: A. Biagnini, P. Petinelli and A. Bortoluzzi, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, Agent and A. Dal Ferro, lawyer)

Intervener in support of the applicant: Italian Republic (represented initially by U. Leanza, then I. Braguglia, then R. Adam, and finally by I. Bruni, Agents, and G. Aiello and P. Gentili, avvocati dello Stato)

Re:

Application for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws No 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

Operative part of the order

1.	The objection of inadmissibility raised by the European Commission relates to the substance of the case.

2.	The action is dismissed as being partially manifestly inadmissible and partially manifestly devoid of any basis in law.

3.	Compagnia Generale delle Acque SpA is ordered to bear its own costs and to pay those incurred by the Commission.

4.	The Italian Republic is ordered to bear its own costs.

(1) OJ C 355, 9.12.2000.

25.8.2012

Official Journal of the European Union

C 258/21

Order of the General Court of 13 July 2012 — IVBN v Commission

(Case T-201/10) (1)

(Action for annulment - State aid - Scheme of aid granted by the Netherlands to housing corporations - Existing aid - Special project aid to housing corporations - Decision accepting the Member State’s commitments - Decision declaring new aid compatible - No individual concern - Failure to initiate the procedure under Article 108(2) TFEU - Action inadmissible in part and in part manifestly devoid of any basis in law)

2012/C 258/39

Language of the case: Dutch

Parties

Applicant: Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) (Voorburg, the Netherlands) (represented by: M. Meulenbelt, lawyer)

Defendant: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, Agents, and H. Gilliams, lawyer)

Re:

Application for annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 — (Netherlands — Existing and special project aid to housing corporations).

Operative part of the order

1.	The action is dismissed.

2.	Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) is ordered to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 179, 3.7.2010.

25.8.2012

Official Journal of the European Union

C 258/21

Action brought on 27 June 2012 — CD v Council of the European Union

(Case T-646/11)

2012/C 258/40

Language of the case: French

Parties

Applicant: CD (Minsk, Belarus) (represented by: M. Michalauskas, lawyer)

Defendant: Council of the European Union

Form of order sought

—	annul Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus, in so far as it concerns the applicant;

—	annul Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, in so far as it concerns the applicant;

—

annul the Council’s decision of 11 November 2011 by which it refused to remove the applicant’s name from Annex III A to Council Decision 2011/639/CFSP of 25 October 2010 concerning restrictive measures against certain officials of Belarus, as amended by Council Decision 2011/69/CFSP of 31 January 2011;

—	order the Council to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging an insufficient statement of reasons and infringement of the rights of defence, on the ground that the contested measures do not allow the applicant to challenge their validity before the Court and the Court to exercise its power of review of their lawfulness.

2.	Second plea in law, alleging infringement of the principle of personal liability, on the ground that the contested measures provide for liability and sanctions without establishing the applicant’s personal liability in the facts justifying the sanctions.

3.	Third plea in law, alleging lack of legal basis, on the ground that the contested measures do not establish the existence of a positive legal rule which was infringed by the applicant.

4.	Fourth plea in law, alleging error of assessment, on the ground that the contested measures lack any justification based on the facts.

5.	Fifth plea in law, alleging lack of compliance with the principle of proportionality, on the ground that the applicant’s personal involvement in the collective decision for which sanctions were imposed is not proportionate to that sanction.

25.8.2012

Official Journal of the European Union

C 258/22

Action brought on 9 May 2012 — Shannon Free Airport Development v Commission

(Case T-200/12)

2012/C 258/41

Language of the case: English

Parties

Applicant: Shannon Free Airport Development Co. Ltd (Shannon, Ireland) (represented by: S. Pappas, lawyer)

Defendant: European Commission

Form of order sought

—

Annul the decision of the Contracts and Finance Section of the European Union Delegation to Ukraine, dated 28 February 2012, contested in the present action, given in the framework of tender EuropeAid/131567/C/SER/UA ‘Crimean tourism diversification and support project’; as well as subsequent decisions of the same authority and of the director of the DG Development of the European Commission;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging an infringement of the essential procedural requirement to state reasons, as:

—

Case-law and legislation impose a duty on the defendant to elaborate on the advantages of the selected tender clearly, instead of merely contesting the evidence the applicant brings forward; a good administration has to examine the truth of it and address the allegations correctly, all the more so when various aggravating factors intensify this requirement.

Second plea in law, alleging an infringement of the essential procedural requirement to respect the applicable procedure, as:

—

The evaluation procedure the Evaluation Committee was to follow was vitiated by irregularities, of which the defendant was aware and did not take into account prior to publishing the results. Thus, the subsequent decisions are unlawful, to the extent that they are based on the result of these irregularities.

Third plea in law, alleging infringement of equal treatment and misuse of power, as:

—	The illegal procedure was only applied in the case of the consortium the applicant was part of, in breach of the principle of non-discrimination. It also appears that the sole purpose of the illegal procedure was to eliminate the applicant’s consortium from the first place in the evaluation list.

25.8.2012

Official Journal of the European Union

C 258/23

Action brought on 8 June 2012 — Hammar Nordic Plugg v Commission

(Case T-253/12)

2012/C 258/42

Language of the case: Swedish

Parties

Applicant: Hammar Nordic Plugg AB (Trollhättan, Sweden) (represented by: I. Otken Eriksson and U. Öberg, lawyers)

Defendant: European Commission

Form of order sought

—	Annul, entirely or in part, the European Commission’s decision of 8 February 2012 on State aid SA.28809 (C 29/2010, ex NN 42/2010 and ex CP 194/2009) which Sweden granted in favour of Hammar Nordic Plugg;

—	Order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 107(1) TFEU

The applicant claims that the municipality of Vänersborg did not grant unlawful aid to the applicant within the meaning of Article 107(1) TFEU by selling and letting publicly owned property below the property’s market value. In the applicant’s submission, the Commission made a series of incorrect assessments as regards the legal classification of the alleged State aid measures in that:

—	the Commission did not have regard to the fact that the purchase of the installation at an earlier stage for SEK 17 million could constitute State aid;

—	the Commission failed to take into account that the actual sale price of SEK 8 million was in accordance with the installation’s market value;

—	the Commission disregarded the principle of a private investor in a market economy, by fixing the value at a later stage at different value time points as the basis of its decision before the actual sale to a private investor;

—	the so-called ‘third estimate in the PwC report’ at the value time point of March 2008 did not constitute a reliable indicator of the true market value of the installation, and

—	the Commission did not have regard to the fact that the installation was quite simply sold at a later stage for SEK 8 million in May 2011 after an open bidding procedure as part of the new owners’ insolvency.

2.	Second plea in law, alleging infringement of Article 107(1) TFEU in that the alleged State aid did not distort competition and did not affect trade between Member States within the meaning of Article 107(1) TFEU.

3.	Third plea in law, alleging infringement of the Commission’s obligation to carry out investigations and duty to state reasons and the applicant’s rights of the defence.

25.8.2012

Official Journal of the European Union

C 258/23

Action brought on 8 June 2012 — Vakili v Council

(Case T-255/12)

2012/C 258/43

Language of the case: French

Parties

Applicant: Bahman Vakili (Tehran, Iran) (represented by: J.-M. Thouvenin, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Annul the Council’s decision to include the applicant in the list of persons subject to sanctions which follows from Decision 2011/783/CFSP, Council Implementing Regulation (EU) No 1245/2001 of 1 December 2011 and the Council’s letter of 23 March 2012;

—	Annul Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010, in so far as it includes the applicant in the list of persons subject to sanctions;

—	Order the Council to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging a failure to state reasons, since the statement of reasons for the penalty affecting the applicant does not contain any specific and concrete reason to justify that sanction.

Second plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection, since the applicant was not heard in the proceedings which led to a penalty being imposed on him, as the Council did not send him the evidence against him and as the applicant was not in a position effectively to make known his view in that regard.

3.	Third plea in law, alleging an error of law, since the Council was not empowered to penalise a person on the sole basis that he is president of the board of directors and chief executive of an entity also subject to sanctions.

Fourth plea in law, alleging an error of fact, since the applicant cannot be held liable for what was allegedly done by the Export Development Bank of Iran before the applicant took up his duties with that company. In addition, the applicant disputes the existence of the alleged actions of the company which he directs.

5.	Fifth plea in law, alleging infringement of the principle of proportionality, since the penalty imposed is not such as to achieve the objectives which it is intended to pursue.

6.	Sixth plea in law, alleging infringement of the right to respect for property, since the applicant has not been in a position effectively to defend his rights and was penalised on the basis of non-existent legal bases.

25.8.2012

Official Journal of the European Union

C 258/24

Action brought on 18 June 2012 — Manufacturing Support and Procurement Kala Naft v Council

(Case T-263/12)

2012/C 258/44

Language of the case: French

Parties

Applicant: Manufacturing Support and Procurement Kala Naft Co., Tehran (Tehran, Iran) (represented by: F. Esclatine and S. Perrotet, lawyers)

Defendant: Council of the European Union

Form of order sought

—	Annul Council Regulation (EU) No 267/2012 of 23 March 2012;

—	Order the Council to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law, six of which are in essence similar to the first six pleas in law raised in Case T-509/10 Manufacturing Support and Procurement Kala Naft v Council. (1)

The applicant raises an additional plea in law alleging that the contested regulation is unlawful by reason of the unlawfulness of the preceding measures which were annulled by the judgment of the General Court in Case T-509/10 Manufacturing Support and Procurement Kala Naft v Council [2012] ECR II-0000.

(1) OJ 2010 C 346, p. 57.

25.8.2012

Official Journal of the European Union

C 258/24

Action brought on 28 June 2012 — Flying Holding and Others v Commission

(Case T-280/12)

2012/C 258/45

Language of the case: French

Parties

Applicants: Flying Holding NV (Antwerp-Wilrijk, Belgium); Flying Group Lux SA (Luxembourg, Luxembourg) and Flying Service NV (Antwerp-Deurne, Belgium) (represented by: C. Doutrelepont and V. Chapoulaud, lawyers)

Defendant: European Commission

Form of order sought

—	Order the joinder of the present case with Case T-91/12;

—	Declare the present action admissible and well founded;

—	Annul the decision of the European Commission awarding contract No PMO2/PR/2011/103 to ABELAG AVIATION NV, as set out in contract award notice No 2012/S 83-135396 published on 28 April 2012 in the Supplement to the Official Journal of the European Union (OJ/S — S83);

—

Order the European Commission to pay the applicants compensation of EUR 1 014 400, re-estimated following inflation, until the date of delivery of the future judgment of the General Court liquidating the damage, then increased by late-payment interest to be calculated from that date until payment in full;

—	Order the European Commission to pay all the costs, including those incurred by the applicants.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 89 of the Financial Regulation, (1) by twice consecutively awarding the contract in question to ABELAG AVIATION, in the context of framework contracts, without opening it to effective competition since only ABELAG AVIATION was authorised to enter a bid in both cases.

Second plea in law, alleging infringement of the third subparagraph of Article 123(1) of the Implementing Regulation (2) by awarding the contract in question to ABELAG AVIATION without having admitted a sufficient number of tenderers to ensure true competition by comparing different bids and accepting the most advantageous of them.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

25.8.2012

Official Journal of the European Union

C 258/25

Action brought on 27 June 2012 — El Corte Inglés v OHIM — Sohawon (FREE YOUR STYLE.)

(Case T-282/12)

2012/C 258/46

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela, J. Rivas Zurdo and I. Munilla Muñoz, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nadia Mariam Sohawon (London, United Kingdom)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of 17 April 2012 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1825/2010-4, and find that, pursuant to Article 8(1)(b) of Regulation No 207/2009, the action brought by the opposing party before OHIM should have been upheld for the following services in Class 35: retail services, wholesale services, mailing services and online retail services related to clothing, footwear and headgear, and the decision of the Opposition Division to fully grant Community trade mark No 7 396 468‘FREE YOUR STYLE’ (mixed) should have been annulled;

—	order the party or parties which oppose this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Nadia Mariam Sohawon

Community trade mark concerned: Figurative mark ‘FREE YOUR STYLE.’ for goods and services in Classes 25, 35 and 41 — Community trade mark application No 7 396 468

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

Mark or sign cited in opposition: Community and Spanish word mark ‘FREE STYLE’ for goods in Classes 3, 18 and 25

Decision of the Opposition Division: opposition rejected

Decision of the Board of Appeal: appeal dismissed in part

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009

25.8.2012

Official Journal of the European Union

C 258/25

Action brought on 29 June 2012 — Oro Clean Chemie v OHIM — Merz Pharma (PROSEPT)

(Case T-284/12)

2012/C 258/47

Language in which the application was lodged: German

Parties

Applicant: Oro Clean Chemie AG (Fehraltorf, Switzerland) (represented by: F. Ekey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merz Pharma GmbH & Co. KGaA (Frankfurt am Main, Germany)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 March 2012 in Case R 1053/2011-1;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘PROSEPT’ for goods in Class 5 — Community trade mark application No 8 353 245

Proprietor of the mark or sign cited in the opposition proceedings: Merz Pharma GmbH & Co. KGaA

Mark or sign cited in opposition: the national word mark ‘Pursept’ for goods in Class 5

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

—	Infringement of the second sentence of Article 75 and Article 76(1) of Regulation No 207/2009

—	Infringement of Article 8(1)(b) of Regulation No 207/2009

25.8.2012

Official Journal of the European Union

C 258/26

Action brought on 2 July 2012 — Syria International Islamic Bank v Council

(Case T-293/12)

2012/C 258/48

Language of the case: French

Parties

Applicant: Syria International Islamic Bank Public Joint-Stock Company (Damas, Syria) (represented by: G. Laguesse and J.-P. Buyle, lawyers)

Defendant: Council of the European Union

Form of order sought

—	Annul Regulation 2012/544/CFSP implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, as regards the applicant;

—	Annul Implementing Decision 2012/335/CFSP implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, as regards the applicant;

—	Order the Council to pay the applicant the provisional amount of EUR 10 000 000 in compensation, without prejudice to any later increase or decrease in that amount;

—	Order the Council to pay all the costs of the proceedings, including those incurred by the applicant.

Pleas in law and main arguments

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

First plea in law, alleging infringement of the rights of the defence and of the right to a fair hearing, since it was not possible for the applicant to be heard prior to the adoption of the sanctions and the Council refused to give the applicant the opportunity of submitting its arguments in the light of the specific evidence allegedly held by the Council, despite the applicant having asked to do so.

2.	Second plea in law, alleging a manifest error in assessment of the facts, since the applicant has not, to its knowledge, following internals checks and inquiries, committed the infringements alleged in the contested measures.

Third plea in law, alleging infringement of the principle of proportionality, since the consequence of the measures adopted by the Council was the closure of the applicant’s financial system representing 90 % of its transactions in euros. That made a number of contracts ineffective, made the applicant liable and prevented thousands of Syrian citizens from carrying out different banking and financial transactions.

4.	Fourth plea in law, alleging a disproportionate infringement of the right to property and the right to engage in an occupation.

Fifth plea in law, alleging that the contested measures are unlawful, since the requirements of Article 23 of Decision 2011/782/CFSP (1) and Articles 14 and 26 of Regulation No 36/2012 (2) were not met in that the applicant did not knowingly and voluntarily participate in any attempts to evade the sanctions.

6.	Sixth plea in law, alleging an abuse of power, since the facts of the case lead the applicant to believe that the measures were adopted on grounds other than those stated in the contested measures.

Seventh plea in law, alleging infringement of the duty to state reasons, since the reasons given for the contested measures are elliptical and do not refer to specific evidence or to dates which would enable the applicant to identify the financial transactions which it is alleged to have carried out.

(1) Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ L 319, p. 56).

(2) Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ L 16, p. 1).

25.8.2012

Official Journal of the European Union

C 258/27

Order of the General Court of 11 July 2012 — Romania v Commission

(Case T-484/07) (1)

2012/C 258/49

Language of the case: Romanian

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

(1) OJ C 51, 23.2.2008.

European Union Civil Service Tribunal

25.8.2012

Official Journal of the European Union

C 258/28

Action brought on 21 June 2012 — ZZ v EEAS

(Case F-64/12)

2012/C 258/50

Language of the case: French

Parties

Applicant: ZZ (represented by: M. Casado Garcia-Hirschfeld, lawyer)

Defendant: European External Action Service

Subject-matter and description of the proceedings

Application for annulment of the decision not to include the applicant in the list of officials promoted to Grade AD 6 under the 2011 promotion procedure and for an order that the defendant pay compensation for the damage suffered.

Form of order sought

—	Annul the decision of the appointing authority of 15 November 2011 not to promote the applicant to Grade AD 6 under the 2011 promotion procedure;

—	Annul, in so far as necessary, the decision of 23 March 2011 rejecting the complaint;

—	Order the EEAS to pay the applicant an amount fixed ex aequo et bono at EUR 6 000 by way of compensation for the non-material and professional damage he has suffered, with interest for delayed payment at the legal rate from the date at which that amount becomes due;

—	Order the EEAS to pay the costs.

25.8.2012

Official Journal of the European Union

C 258/28

Action brought on 27 June 2012 — ZZ v Commission

(Case F-66/12)

2012/C 258/51

Language of the case: French

Parties

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

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the defendant’s decision determining the amount of transferable capital in respect of pension rights acquired prior to entry into the service and the calculation of the number of years of pensionable service recognised for the purposes of that transfer into the pension scheme of the institutions of the European Union.

Form of order sought

—

Principally,

—

annul the defendant’s decision of 30 November 2011 determining the amount of transferable capital in respect of pension rights acquired by the applicant at NATO, and the calculation of the number of years of pensionable service recognised for the purposes of that transfer into the pension scheme of the institutions of the European Union;

—	in so far as necessary, annul the decision dated 28 March 2012 expressly rejecting the applicant’s complaint dated 23 January 2012;

—

in any event,

—	acknowledge the non-material damage suffered and order the defendant to pay a sum provisionally assessed at EUR 20 000;

—	order the Commission to pay the costs.

25.8.2012

Official Journal of the European Union

C 258/28

Action brought on 2 July 2012 — ZZ v Commission

(Case F-68/12)

2012/C 258/52

Language of the case: French

Parties

Applicant: ZZ (represented by: F. Frabetti, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the promotion points awarded to the applicant and of his staff report for the period from 1 January 2010 to 31 December 2010.

Form of order sought

—	annul the applicant’s staff report drawn up by Eurostat for the period from 1 January 2010 to 31 December 2010 and the level of performance attributed to him by the same DG;

—	annul the promotion points awarded by Eurostat and the AIPN;

—	annul the decision rejecting the pre-litigation complaint regarding its vexatious and hurtful nature, to the point of causing non-material damage equivalent to 10 days pay without prejudice at EUR 2 500, calculated on the bases of 1/30th of the monthly remuneration per day compensated;

—	order the Commission to pay the costs.

25.8.2012

Official Journal of the European Union

C 258/29

Action brought on 4 July 2012 — ZZ v EEAS

(Case F-70/12)

2012/C 258/53

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, É. Marchal, lawyers)

Defendant: European External Action Service

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to Grade AD 13 in the 2011 promotion exercise.

Form of order sought

—	Annul the decision of 15 November 2011 not to promote the applicant to Grade AD 13 in the 2011 promotion exercise;

—	Order the EEAS to pay the costs.

25.8.2012

Official Journal of the European Union

C 258/29

Action brought on 9 July 2012 — ZZ v Commission

(Case F-72/12)

2012/C 258/54

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission’s decision relating to the recovery of a certain amount of the remuneration of the applicant, formerly a member of the temporary staff at Grade A4 (AD12), then an official at Grade AD6, pursuant to Article 85 of the Staff Regulations.

Form of order sought

—	Annul the decision of 20 December 2011 to proceed with the recovery of the sum of EUR 172 236,42 pursuant to Article 85 of the Staff Regulations;

—

in the alternative, order the Commission to compensate the applicant in the amount of EUR 172 236,42, or, in the further alternative, in the amount of the sums overpaid until the day on which the irregularity was discovered but not corrected, or, in the further alternative, in the amount of the sums overpaid until November 2010, when the applicant’s multiplication factor was eventually corrected;

—	order the European Commission to pay the costs.

Corrigenda

25.8.2012

Official Journal of the European Union

C 258/30

Corrigendum to the notice in the Official Journal in Case T-527/10

( Official Journal of the European Union C 227 of 28 July 2012, p. 20 )

2012/C 258/55

The OJ notice in Case T-527/10 Google v OHIM — G-mail (GMail) should read as follows:

Order of the General Court of 6 June 2012 — Google v OHIM — G-mail (GMail)

(Case T-527/10) (1)

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

2012/C 258/55

Language of the case: English

Parties

Applicant: Google, Inc. (Wilmington, United States) (represented by: M. Kinkeldey and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: G-mail GmbH (Los Angeles, United States) (represented by: S. Eble, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2010 (Case R 342/2010-4) in relation to opposition proceedings between Giersch Ventures LLC and Google, Inc.

Operative part of the order

1.	There is no need to adjudicate on the action.

2.	The applicant and the intervener shall bear their own costs and shall each pay half of those incurred by the defendant.

(1) OJ C 30, 29.1.2011.

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