Official Journal C 38/2011

5.2.2011

Official Journal of the European Union

C 38/2

Appeal brought on 16 November 2010 by adp Gauselmann GmbH against the judgment of the General Court (Seventh Chamber) delivered on 9 September 2010 in Case T-106/09: adp Gauselmann GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

(Case C-532/10 P)

2011/C 38/02

Language of the case: English

Parties

Appellant: adp Gauselmann GmbH (represented by: P. Koch Moreno, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

Form of order sought

The appellant claims that the Court should:

—	Annul the appealed judgment dated 9 September 2010 of the General Court (Seventh Chamber) in Case T-106/09.

—	Annul the decision of 12 January 2009 issued by the First Board of Appeal of OHIM or, subsidiarily, return the case to the General Court of the European Union.

—	Order the adverse parties to pay the costs incurred in both instances.

Pleas in law and main arguments

The appellant submits that the General Court's judgment was not consistent with the case law relating to the interpretation of article 8(1)(b) of the Community Trade Mark Regulation (1). The appellant's submission is based on the following grounds:

—

The appellant maintains that the General Court was wrong to give the words ‘Archer Maclean's’, which have a clearly secondary or marginal representation within the whole of the trademark applied for, which renders them almost illegible, the same differentiating value as the word ‘MERCURY’, which is the distinctive and dominant element, when reaching the conclusion that there is no likelihood of confusion with the opposing mark, ‘MERKUR’.

—

The appellant maintains that the judgment of the General Court was wrong in its assessment of the two marks, since the word ‘MERCURY’, which is the distinctive and dominant element in the trademark applied for, not only lacks any meaning in the language of the relevant market, i.e. Germany, but is also very similar, phonetically and visually, to the opposing trademark, ‘MERKUR’.

—

Finally the appellant maintains that the General Court was wrong to consider the minimal differences between the word ‘MERCURY’, which is the distinctive and dominating element in the trademark applied for, and ‘MERKUR’, which is the symbol of the opposing trademark, to be sufficient to prevent the public from confusing the two trademarks.

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

OJ L 78, p. 1

5.2.2011

Official Journal of the European Union

C 38/2

Appeal brought on 17 December 2010 by Brookfield New Zealand Ltd, Elaris SNC against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-135/08: Schniga v OCVV — Elaris et Brookfield New Zealand (Gala Schnitzer)

(Case C-534/10 P)

2011/C 38/03

Language of the case: English

Parties

Appellants: Brookfield New Zealand Ltd, Elaris SNC (represented by: M. Eller, Rechtsanwalt)

Other parties to the proceedings: Community Plant Variety Office, Schniga GmbH

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court

—	refer the case back to the General Court for judgment or, in the alternative, by way of final judgment, dismiss the action of Plaintiff Schniga GmbH and consequently confirm the decision of the Board of Appeal of the CPVO of 21 November 2007 in Cases A-003/2007 and A-004/2007

—	order that the costs be reimbursed.

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:

I. Inadmissibility of the third plea in law put forward by the Applicant Schniga GmbH. Illegitimate review of the facts as assessed by the Board of Appeal. Infringement of Art. 73(2) of Regulation No. 2100/94 (1) (hereinafter CR).

—

The third plea in law, put forward by the Applicant Schniga GmbH in support of its action for annulment of the Board of Appeal's decision and upheld by the contested judgment, ought to have been declared inadmissible, since it implied a review of facts, not allowed under the provision of Art. 73(2) CR.

—	The General Court infringed Art. 73(2) CR by illegitimately reviewing findings of fact by the Board of Appeal concerning the actual content of the individual request within the meaning of Art. 55(4) CR and the understanding of them by the Applicant.

II. Infringement of Art. 55(4) in connection with Art. 61(1)(b) and with Art. 80 of Regulation No. 2100/94 (hereinafter CR)

—

The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to make requests in individual cases, the violation of which entails the rejection of an application according to art. 61(1)(b) CR, not only with reference to the quality of the material to be submitted within a certain time, but also with reference to the documentary proof of such quality.

—

The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to split its requests in individual cases into two autonomous and independent requests, one concerning the material itself and one concerning the documentary proof of quality, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR.

—

The General Court further erred in affirming (or implicitly assuming) that art. 55(4), in conjunction with art. 61(1)(b) CR, confers upon the Office the power to permit new submission of material, in a situation where the previously set time limit for submission of material of a certain quality had already elapsed, merely because the time limit for sending documentary evidence as to the quality of such material had not yet elapsed.

—

The General Court erred in affirming (or implicitly assuming) that art. 55(4) in conjunction with art. 61(1)(b) CR confers upon the Office the power to allow a new submission of virus free material, once the time limit for the submission of the said material had elapsed and once it was definitely clear that the said material was not virus free.

—

The General Court further erred in affirming (or implicitly assuming) — given that the submitted material was virus infected and that, therefore, no health certificate for this material could have been sent and was never going to be sent — that the wording ‘as soon as possible’, with reference to the invitation to send the missing health certificate for material already submitted, could not be construed as a time limit and in any case not as an elapsed time limit, with reference to an individual request within the meaning of art. 55(4) CR, leading to the rejection of the application in accordance with art. 61(1)(b) CR.

—

The General Court further erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office full discretionary power to satisfy itself, without any further hierarchical or judicial review, of the legal precision and clarity of its requests in individual cases, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR, and in further affirming (or implicitly assuming) that such discretionary evaluation by the Office can be carried out a) whether or not the applicant has formally and timely asked for reinstatement ex art. 80 CR, and b) without any consideration of the actual understanding by the applicant of such a request or as to his good or bad faith in the interpretation of such a request.

(1) OJ L 227, p. 1

5.2.2011

Official Journal of the European Union

C 38/4

Reference for a preliminary ruling from the Tribunal de première instance, Liège (Belgium) lodged on 19 November 2010 — Richard Lebrun, Marcelle Howet v État belge — SPF Finances

(Case C-538/10)

2011/C 38/04

Language of the case: French

Referring court

Tribunal de première instance, Liège

Parties to the main proceedings

Applicants: Richard Lebrun, Marcelle Howet

Defendant: État belge — SPF Finances

Question referred

Do Article 6 of Title I, ‘Common Provisions’, of the [Treaty on European Union, as amended by the] Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992, in force since 1 December 2009 (substantially reproducing the provisions previously contained in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude a national law, such as that of 12 July 2009 amending Article 26 of the Special Law of 6 January 1989 on the [Constitutional Court], (1) from requiring prior recourse to the Constitutional Court by a national court which finds that a taxpaying citizen is deprived of the effective judicial protection guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated into Community law, by another national law, namely Article 2 of the Law of 24 July 2008, without that national court being able immediately to ensure the direct applicability of Community law to the dispute before it or being able to scrutinise compliance with that convention when the Constitutional Court has recognised the compatibility of the national law with the fundamental rights guaranteed by Title II of the [Belgian] Constitution?

(1) Moniteur belge, 31 July 2009, p. 51617.

5.2.2011

Official Journal of the European Union

C 38/4

Appeal brought on 22 November 2010 by Quinta do Portal SA against the judgment of the General Court (Eighth Chamber) delivered on 8 September 2010 in Case T-369/09 Quinta do Portal v OHIM

(Case C-541/10 P)

2011/C 38/05

Language of the case: Portuguese

Parties

Appellant: Quinta do Portal (represented by Bolota Belchior, advogado)

Other parties to the proceedings: the Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallegre — Vinhos do Porto, SA

Form of order sought

—	Setting aside of the judgment of the General Court in its entirety;

—

a declaration allowing in full the appellant’s claims at first instance, namely, annulment of the decision of 18 June 2009 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (‘the Office’), which dismissed the appeal brought against the decision of the Community trade marks Cancellation Division which, in its turn, declared invalid the Community trade mark No 004009908 PORTO ALEGRE registered on 16 May 2006, published in Community Trade Marks Bulletin No 30/2005 of 25 July 2005 (Case R 1012/2008-1);

—	an order that the respondent should pay the costs at both instances.

Pleas in law and main arguments

The words ‘Porto Alegre’ and ‘Vista Alegre’ are dissimilar conceptually, as regards the dominant element of the mark as a whole, and dissimilar graphically and phonetically, for the two words of the two trade marks are different.

The decisive factor in the distinctiveness of the Community trade mark applied for is the combination of the words ‘Porto’ and ‘Alegre’, which form, together, a single logical and conceptual unit.

The word ‘Alegre’ does not form the dominant element of the Community trade mark. Having regard to the effect of that issue in evaluating the similarity of signs, it must be noted that that is not so in the present case.

The judgment under appeal misinterpreted Article 8(1)(b) of both Regulation No 40/94 (1) and Regulation (EC) No 207/2009 (2) (the wording is the same in the two regulations), so infringing them.

The judgment under appeal failed to take into account those arguments raised in the action before the General Court, for it did not assess them.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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

5.2.2011

Official Journal of the European Union

C 38/5

Action brought on 23 November 2010 — European Commission v Czech Republic

(Case C-545/10)

2011/C 38/06

Language of the case: Czech

Parties

Applicant: European Commission (represented by: M. Šimerdová and H. Støvlbæk, acting as Agents

Defendant: Czech Republic

Form of order sought

—

declare that the Czech Republic has failed to fulfil its obligations under Articles 4(1), 6(2), 7(3), 11 and 30(5) of Directive 2001/14/EC (1) of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

—	and under Article 10(7) of Council Directive 91/440/EEC (2) of 29 July 1991 on the development of the Community's railways;

—	order the Czech Republic to pay the costs.

Pleas in law and main arguments

The Czech Republic has infringed Article 4(1) of Directive 2001/14/EC by laying down a maximum amount for charges for the use of infrastructure, which the infrastructure manager may not exceed. The infrastructure manager is required to carry out the imposition and levying of charges for the use of infrastructure in accordance with the provisions of Article 4(1) of Directive 2001/14/EC. Member States are entitled only to lay down the framework of charges for the use of infrastructure.

The Czech Republic has infringed Article 6(2) of Directive 2001/14/EC by failing to adopt measures providing infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges.

The Czech Republic has infringed Article 7(3) of Directive 2001/14/EC by failing to ensure that charges for the minimum access package and track access to service facilities be set at the cost that is directly incurred as a result of operating the train service.

The Czech Republic has infringed Article 11 of Directive 2001/14/EC by failing to introduce a performance scheme encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network.

The Czech Republic has infringed Article 30(5) of Directive 2001/14/EC by incorrectly transposing it into its domestic legal system.

The Czech Republic has infringed Article 10(7) of Directive 91/440/EEC by failing to ensure the establishment of an entity in relation to the Czech Republic which could be regarded as an entity in accordance with Article 10(7) and fulfil the functions laid down by that provision.

(1) OJ 2001 L 75, p. 29.

(2) OJ 1991 L 237, p. 25.

5.2.2011

Official Journal of the European Union

C 38/5

Action brought on 26 November 2010 — European Commission v Federal Republic of Germany

(Case C-556/10)

2011/C 38/07

Language of the case: German

Parties

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

Defendant: Federal Republic of Germany

Form of order sought

—

declare that, in transposing the first railway package, the Federal Republic of Germany has failed to fulfil its obligations under

—	Article 6(3) of and Annex II to Directive 91/440/EEC (1) and Articles 4(2) and 14(2) of Directive 2001/14/EC, (2)

—	Article 6(2) of Directive 2001/14/EC,

—	Articles 7(3) and 8(1) of Directive 2001/14/EC, and

—	Article 30(4) of Directive 2001/14/EC in conjunction with Article 10(7) of Directive 91/440/EEC;

—	order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Directives 91/440/EEC and 2001/14/EC aim at equitable and non-discriminatory access to rail infrastructure for all undertakings and promotion of a competition-oriented, dynamic and transparent railway market in Europe. Article 6(3) of Directive 91/440/EEC prescribes that the exercise of ‘essential functions’ of infrastructure managers is to be entrusted to bodies or firms ‘that do not themselves provide any rail transport services’.

In the Commission’s view, the independence of the infrastructure manager in the exercise of essential functions, prescribed by the directive, is not guaranteed in Germany, since several of those ‘essential functions’ have been entrusted to a company which is legally independent but is a subsidiary of a holding company to which belong inter alia undertakings providing rail transport services.

The independence laid down in Directive 2001/14/EC must be expressed in terms not only of legal form but also of organisation and decision-making. It follows that an undertaking entrusted with essential functions can be organised within the same holding company as undertakings providing rail transport services only if it not only is legally separate but also can be shown not to form part of an economic unit with them, in other words is also economically independent of them. If, then, within a holding company structure, ‘essential functions’ are performed by a subsidiary company, precautionary measures must be taken to ensure that the parent and the subsidiary cannot act in economic unity, as one undertaking. Those appropriate and adequate precautionary measures, which could also guarantee the economic independence of the infrastructure manager from the rail transport undertakings, have not, however, been adopted in Germany. The precautionary measures cited by Germany are not sufficient to guarantee the independence of the essential functions, avert conflicts of interest, and withdraw control of the body entrusted with essential functions from the holding company.

First, fulfilment of the requirements of independence is not supervised by an independent authority, and competitors have no redress in the event of breaches of the independence rule. Secondly, the independence from the holding company of persons such as directors and managers of the body entrusted with the essential functions is not guaranteed, for the following reasons:

—	Directors of the holding company or of other companies belonging to the holding company are not prevented from also being on the board of the body entrusted with essential functions.

—

There is no provision that members of the management of the body entrusted with essential functions and its leading personnel responsible for carrying out the essential functions, after ceasing their activity for the body in question, may not for an appropriate number of years hold a leading position in the holding company or in other institutions controlled by the holding company.

—	The managers of the body entrusted with essential functions are not appointed under clearly defined conditions and subject to corresponding legal obligations to ensure complete independence of decision-making.

—

The body entrusted with essential functions does not have personnel of its own accommodated in separate or access-controlled premises, whose contacts with the holding company and other undertakings controlled by it are to be limited to the official notices associated with the exercise of essential functions.

—	Access to the information systems is not protected, so that it cannot be excluded that the holding company may come to possess information relating to the exercise of essential functions.

In addition to the above breach of the requirement of independence of the infrastructure manager in the exercise of essential functions, the Federal Republic of Germany has also failed to fulfil its obligations under Directives 91/440 and 2001/14 by:

—	not transposing sufficiently clearly the provisions of Directive 2001/14/EC on infrastructure charges and failing to establish the conditions for the proper application of the full-cost principle;

—	not adopting the necessary measures to require infrastructure managers to reduce infrastructure costs and the infrastructure charges for access to the rail network;

—	failing to empower the regulatory authority to enforce a request to the infrastructure manager for information by means of appropriate sanctions.

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, OJ 1991 L 237, p. 25.

(2) Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, OJ 2001 L 75, p. 29.

5.2.2011

Official Journal of the European Union

C 38/7

Action brought on 29 November 2010 — European Commission v Portuguese Republic

(Case C-557/10)

2011/C 38/08

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: H. Støvlbæk and M. França, Agents)

Defendant: Portuguese Republic

Form of order sought

—

Declare that, with regard to transposition of the first railway package, the Portuguese Republic has failed to fulfil its obligations under Article 5(3) of Council Directive 91/440/EEC (1) of 29 July 1991 on the development of the Community's railways (as amended by Directive 2001/12/EC) (2), Article 7(3) of Directive 91/440/EEC and Article 6(1) of Directive 2001/14/EC (3) of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification,

—	order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Management independence

Article 5(3) of Directive 91/440 contains a list of decisions that railway undertakings must be able to take without State interference. These include decisions relating to staff, assets and own procurement. These decisions must be taken in the context of the general policy guidelines determined by the State. However, in Portugal, with regard to the public undertaking CP, the State not only lays down general strategic guidelines for the acquisition and disposal of holdings in other companies, but also requires individual decisions to acquire or dispose of holdings in the capital of companies to be subject to the approval of the government. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 5(3) of Directive 91/440 (as amended).

Tariffs for access to railway infrastructure

Under Articles 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14, Member States are to lay down conditions to ensure that the accounts of the railway infrastructure manager are balanced. In Portugal, however, income from infrastructure charges, State funding and other income from commercial activities is insufficient to balance the accounts of the infrastructure manager, the public undertaking REFER E.P. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14.

(1) OJ L 1991 237, p. 25

(2) OJ L 2001 75, p. 1

(3) OJ 2001 L 75, p. 29

5.2.2011

Official Journal of the European Union

C 38/7

Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 1 December 2010 — Kashayar Khavand v Federal Republic of Germany

(Case C-563/10)

2011/C 38/09

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Parties to the main proceedings

Applicant: Kashayar Khavand

Defendant: Federal Republic of Germany

Questions referred

1.	Is homosexuality to be considered a sexual orientation within the meaning of the second sentence of Article 10(1)(d) of Directive 2004/83/EC (1) and can it be adequate reason for persecution?

If Question 1 is to be answered in the affirmative:

(a)	To what extent is homosexual activity protected?

(b)	Can a homosexual person be told to live with his or her sexual orientation in his or her home country in secret and not allow it to become known to others?

(c)	Are specific prohibitions for the protection of public order and morals relevant when interpreting and applying Article 10(1)(d) of Directive 2004/83/EC or should homosexual activity be protected in the same way as for heterosexual people?

(1) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

5.2.2011

Official Journal of the European Union

C 38/9

Judgment of the General Court of 16 December 2010 — Netherlands v Commission

(Joined Cases T-231/06 and T-237/06) (1)

(State aid - Public service broadcasting - Measures taken by the Netherlands authorities - Decision declaring State aid compatible in part and incompatible in part with the common market - New aid or existing aid - Concept of State aid - Concept of undertaking - Overcompensation for the costs of the public service mission - Proportionality - Duty to give reasons - Rights of the defence)

2011/C 38/11

Language of the case: Dutch

Parties

Applicants: Kingdom of the Netherlands (represented by: H. Sevenster and M. de Grave, Agents) (Case T-231/06); and Nederlandse Omroep Stichting (NOS) (Hilversum, Netherlands) (represented by: J. Feenstra and H. Speyart van Woerden, lawyers)

Defendant: European Commission (represented by: N. Khan and H. van Vliet, Agents)

Re:

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

Operative part of the judgment

The Court:

1.	dismisses the actions;

2.	orders the Kingdom of the Netherlands to pay the costs in Case T-231/06;

3.	orders Nederlandse Omroep Stichting (NOS) to pay the costs in Case T-237/06.

(1) OJ C 261, of 28.10.2006.

5.2.2011

Official Journal of the European Union

C 38/9

Judgment of the General Court of 16 December 2010 — Systran and Systran Luxembourg v Commission

(Case T-19/07) (1)

(Non-contractual liability - Call for tenders to carry out a project relating to the maintenance and linguistic enhancement of the Commission's machine translation system - Source codes for a computer program being marketed - Infringement of copyright - Unauthorised disclosure of know-how - Action for compensation - Non-contractual dispute - Admissibility - Actual and certain damage - Causal link - Flat-rate assessment of the amount of the damage)

2011/C 38/12

Language of the case: French

Parties

Applicant: Systran SA (Paris, France); and Systran Luxembourg SA (Luxembourg, Luxembourg) (represented by: J.-P. Spitzer and E. De Boissieu, lawyers)

Defendant: European Commission (represented: initially by E. Montaguti and M.F. Benyon, and subsequently by E. Traversa and E. Montaguti, Agents, and A. Berenboom and M. Isgour, lawyers)

Re:

Action for compensation for the damage allegedly suffered by the applicants as a result of infringements committed following a call for tenders by the Commission relating to the maintenance and linguistic enhancement of its machine translation system.

Operative part of the judgment

The Court:

1.	Orders the European Commission to pay Systran SA flat-rate compensation of EUR 12 001 000;

2.	Dismisses the remainder of the action;

3.	Orders the Commission to pay the costs.

(1) OJ C 69, 24.3.2007.

5.2.2011

Official Journal of the European Union

C 38/10

Judgment of the General Court of 16 December 2010 — Martin v Parliament

(Case T-276/07) (1)

(Rules concerning expenses and allowances for Members of the European Parliament - Recovery of sums wrongly paid)

2011/C 38/13

Language of the case: French

Parties

Applicant: Hans-Peter Martin (Vienna, Austria) (represented by: É. Boigelot, T. Bontinck and S. Woog, lawyers)

Defendant: European Parliament (represented: initially by H. Krück, D. Moore and C. Karamarcos, and subsequently by H. Krück, D. Moore and M. Windisch, Agents)

Re:

Application for annulment of the decision of the Secretary General of the European Parliament of 10 May 2007 and, if necessary, the debit note of the Director-General for Finance of the Parliament, taken pursuant to the decision of 10 May 2007, and, where applicable, any decision implementing the aforementioned measures which might arise in the course of the proceedings.

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Mr Hans-Peter Martin to pay the costs.

(1) OJ C 211 of 8.9.2007.

5.2.2011

Official Journal of the European Union

C 38/10

Judgment of the General Court of 15 December 2010 — E.ON Energie v Commission

(Case T-141/08) (1)

(Competition - Administrative procedure - Decision finding that seals had been broken - Article 23(1)(e) of Regulation (EC) No 1/2003 - Burden of proof - Presumption of innocence - Proportionality - Duty to state reasons)

2011/C 38/14

Language of the case: German

Parties

Applicant: E.ON Energie AG (Munich, Germany) (represented by: initially A. Röhling, C. Krohs, F. Dietrich and R. Pfromm, then A. Röhling, F. Dietrich and R. Pfromm, lawyers)

Defendant: European Commission (represented by: A. Bouquet, V. Bottka and R. Sauer, acting as Agents)

Re:

Annulment of Commission Decision C(2008) 377 final of 30 January 2008 imposing a fine under Article 23(1)(e) of Council Regulation (EC) No 1/2003 for breaking seals affixed by the Commission during an inspection (Case COMP/B-1/39.326 — E.ON Energie AG)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders E.ON Energie AG to pay the costs.

(1) OJ C 158, 21.6.2008.

5.2.2011

Official Journal of the European Union

C 38/10

Judgment of the General Court of 17 December 2010 — EWRIA and Others v Commission

(Case T-369/08) (1)

(Dumping - Imports of iron or steel ropes and cables originating in China, India, South Africa, Ukraine and Russia - Refusal to initiate a partial interim review of the anti-dumping duty imposed)

2011/C 38/15

Language of the case: English

Parties

Applicants: European Wire Rope Importers Association (EWRIA) (Hemer, Germany); Câbleries namuroises SA (Namur, Belgium); Ropenhagen A/S (Vallensbaek Strand, Denmark); ESH Eisen- und Stahlhandelsgesellschaft mbH (Kaarst, Germany); Heko Industrieerzeugnisse GmbH (Hemer); Interkabel Internationale Seil- und Kabel-Handels GmbH (Solms, Germany); Jose Casañ Colomar, SA (Valencia, Spain); and Denwire Ltd (Dudley, United Kingdom) (represented by: T. Lieber, lawyer)

Defendant: European Commission (represented by: C. Clyne and H. van Vliet, Agents)

Re:

APPLICATION for annulment of the decision of the Commission of 4 July 2008 rejecting the applicants’ request for initiation of a partial interim review of the anti-dumping measures applicable to imports of iron or steel ropes and cables.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Wire Rope Importers Association (EWRIA), Câbleries namuroises SA, Ropenhagen A/S, ESH Eisen- und Stahlhandelsgesellschaft mbH, Heko Industrieerzeugnisse GmbH, Interkabel Internationale Seil- und Kabel-Handels GmbH, Jose Casañ Colomar SA and Denwire Ltd to pay the costs.

(1) OJ C 301, 22.11.2008.

5.2.2011

Official Journal of the European Union

C 38/11

Judgment of the General Court of 15 December 2010 — CEAHR v Commission

(Case T-427/08) (1)

(Agreements, decisions and concerted practices - Abuse of dominant position - Decision rejecting a complaint - Refusal of Swiss watch producers to supply spare parts to independent watch repairers - Community interest - Relevant market - Primary market and after market - Duty to give reasons - Manifest error of assessment)

2011/C 38/16

Language of the case: English

Parties

Applicant: Confédération européenne des associations d’horlogers-réparateurs (CEAHR) (Brussels, Belgium) (represented by: P. Mathijsen, lawyer)

Defendant: European Commission (represented by: X. Lewis and F. Ronkes Agerbeek, and subsequently by F. Ronkes Agerbeek and F. Castilla Contreras, Agents)

Intervener in support of the defendant: Richemont International SA (Bellevue, Switzerland) (represented by J. Ysewyn, lawyer, and H. Crossley, Solicitor)

Re:

Annulment of Commission Decision C(2008) 3600 of 10 July 2008 rejecting the complaint lodged by the applicant in Case COMP/E-l/39097

Operative part of the judgment

The Court:

1.	Annuls Commission Decision C(2008) 3600 of 10 July 2008 in Case COMP/E-1/39097;

2.	Orders Richemont International SA to pay, in addition to its own costs, those incurred by the Confédération européenne des associations d’horlogers-réparateurs (CEAHR) as a result of the intervention;

3.	Orders the European Commission to pay, in addition to its own costs, the remainder of those incurred by the CEAHR.

(1) OJ C 313, 6.12.2008.

5.2.2011

Official Journal of the European Union

C 38/11

Judgment of the General Court of 17 December 2010 — Commission v Acentro Turismo

(Case T-460/08) (1)

(Arbitration clause - Contract for the provision of services concerning the organisation of journeys for official trips - Non-performance of the contract - Admissibility - Payment of principal sums due - Late payment interest)

2011/C 38/17

Language of the case: Italian

Parties

Applicant: European Commission (Milan, Italy) (represented by: A. Aresu and A. Caeiros, Agents)

Defendant: Acentro Turismo (represented by: A. Carta and G. Murdolo, lawyers)

Re:

Application by the Commission under Article 153 EA for an order requiring the defendant to pay sums allegedly payable, plus late payment interest, by way of performance of the contract for provision of services 349-90-04 TL ISP I, concerning the organisation of journeys for official trips required by the Joint Research Centre

Operative part of the judgment

The Court:

Orders Acentro Turismo SpA to pay the European Commission the principal sum of EUR 13 497,46, the sum of EUR 2 278,55 in late payment interest due at the date on which the application in the action was lodged and late payment interest on those amounts calculated in accordance with the rates in effect from 10 October 2008 until the date of full payment of the principal sum owing.

2.	Orders Acentro Turismo to pay the costs.

(1) OJ C 313, 6.12.2008.

5.2.2011

Official Journal of the European Union

C 38/12

Judgment of the General Court of 15 December 2010 — Epcos v OHIM — Epco Sistemas (EPCOS)

(Case T-132/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark EPCOS - Earlier national figurative mark epco SISTEMAS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Genuine use of earlier mark - Article 43(2) and (3) of Regulation No 40/94 (now Article 42(2) and (3) of Regulation No 207/2009)

2011/C 38/18

Language of the case: German

Parties

Applicant: Epcos AG (Munich, Germany) (represented by: L. von Zumbusch and S. Schweyer, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Epco Sistemas SL (Constanti, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 19 January 2009 (Case R 1088/2008-2) relating to opposition proceedings between Epco Sistemas SL and Epcos AG.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Epcos AG to pay the costs.

(1) OJ C 129, 6.6.2009.

5.2.2011

Official Journal of the European Union

C 38/12

Judgment of the General Court of 16 December 2010 — Commission v Petrilli

(Case T-143/09 P) (1)

(Appeal - Staff cases - Auxiliary contract staff - Fixed-term contract - Rules on the maximum duration for employing non-permanent staff in the Commission services - Decision to refuse renewal of the contract)

2011/C 38/19

Language of the case: French

Parties

Appellant: European Commission (represented by: D. Martin and B. Eggers, Agents)

Other party to the proceedings: Nicole Petrilli (Woluwé-Saint-Étienne, Belgium) (represented: initially by J.-L. Lodomez and J. Lodomez, and subsequently by D. Dejehet and A. Depondt, lawyers)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 January 2009 in Case F-98/07 Petrilli v Commission ECR-SC I-A-1-0000 and II-A-1-0000), seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Commission to bear its own costs and to pay those incurred by Mrs Nicole Petrilli in these proceedings.

(1) OJ C 153 of 4.7.2009.

5.2.2011

Official Journal of the European Union

C 38/12

Judgment of the General Court of 16 December 2010 — Council v Stols

(Case T-175/09 P) (1)

(Appeal - Public service - Promotion - Comparative examination of the merits - Manifest error of assessment - Distortion of the evidence)

2011/C 38/20

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bauer and G. Kimberley, Agents)

Other party to the proceedings: Willem Stols (Halsteren, Netherlands) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (First Chamber) of 17 February 2009 F-51/08 Stols v Council [2009] ECR II-0000, seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 17 February 2009 in Case F-51/08 Stols v Council [2009] ECR II-0000;

2.	Refers the case back to the Civil Service Tribunal;

3.	Reserves the costs.

(1) OJ C 167,18.7.2009.

5.2.2011

Official Journal of the European Union

C 38/13

Judgment of the General Court of 16 December 2010 — HIT Trading and Berkman Forwarding v Commission

(Case T-191/09) (1)

(Customs Union - Importation of compact fluorescent lamps with integrated electronic ballasts (CFL-i) from Pakistan - Post-clearance recovery of import duties - Application for remission of import duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)

2011/C 38/21

Language of the case: Dutch

Parties

Applicant: HIT Trading BV (Lelystad, Netherlands); and Berkman Forwarding BV (Barendrecht, Netherlands) (represented by: A.T.M. Jansen, lawyer)

Defendant: European Commission (represented by: L. Bouyon and H. van Vliet, Agents, assisted by Y. van Gerven, lawyer)

Re:

Application for annulment of Commission Decision C(2009) 747 final of 12 February 2009, stating that the post-clearance entry in the accounts of certain import duties was justified and that the remission of such duties was not justified (File reference: REC 01/08).

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Hit Trading BV and Berkman Forwarding BV to pay the costs.

(1) OJ C 180 of 1.8.2009

5.2.2011

Official Journal of the European Union

C 38/13

Judgment of the General Court of 16 December 2010 — Commission v Arci Nuova associazione comitato di Cagliari and Gessa

(Case T-259/09) (1)

(Arbitration clause - Agreement entered into as part of support for European discussion projects organised by non-governmental organisations for 2003 - Action brought against the head of an association - No jurisdiction - Failure to implement the agreement - Repayment of sums advanced)

2011/C 38/22

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. M. Rouchaud-Joët and N. Bambara, agents, and by M. Moretto, lawyer)

Defendant: Arci Nuova associazione comitato di Cagliari (Cagliari, Italy) (represented initially by S. Diana, then by P. Aureli, lawyers); and Alberto Gessa (Cagliari, Italy)

Re:

Action brought under Article 238 EC on the basis of an arbitration clause seeking an order that Arci Nuova Associazione Comitato di Cagliari and Alberto Gessa, in a personal capacity and jointly and severally, should repay an advance paid by the Commission under the agreement 2003-1550/001-001, together with late payment interest.

Operative part of the judgment

The Court:

1.	dismisses the action so far as brought against Mr Alberto Gessa;

2.	orders Arci Nuova associazione comitato di Cagliari to repay to the European Commission the principal sum of EUR 15 675, together with late payment interest at the rate of 7,32 % from 20 May 2007 until full payment of the debt;

3.	orders Arci Nuova associazione comitato di Cagliari to pay the costs.

(1) OJ C 220 of 12.9.2009.

5.2.2011

Official Journal of the European Union

C 38/14

Judgment of the General Court of 24 November 2010 — Commission v Irish Electricity Generating

(Case T-323/09) (1)

(Arbitration clause - Contract concluded in the framework of a specific programme for research and technological development, including demonstration, in the field of non-nuclear energy (1994 to 1998) - Non-performance of the contract - Reimbursement of the sums advanced - Late-payment interest - Procedure by default)

2011/C 38/23

Language of the case: English

Parties

Applicant: European Commission (represented by: A.-M. Rouchaud-Joët and F. Mirza, Agents, and by U. O’Dwyer and A. Martin, Solicitors)

Defendant: Irish Electricity Generating Co. Ltd (Waterford, Ireland)

Re:

Application under an arbitration clause seeking an order that Irish Electricity Generating Co. Ltd repay the sum of EUR 180 664,70 corresponding to part of the advances paid to it by the Commission under contract No WE/178/97/IE/GB, together with late-payment interest

Operative part of the judgment

The Court:

Orders Irish Electricity Generating Co. Ltd to repay to the European Commission the sum of EUR 180 664,70, together with late-payment interest:

—	at the rate of 5,56 % per annum from 25 August 2003 to the date of the present judgment;

—	at the annual rate applied under Irish law, that is to say, currently section 26 of the Debtors (Ireland) Act, 1840, as amended, up to a rate of 5,56 % per annum from the date of the present judgment until full clearance of the debt;

2.	Orders Irish Electricity Generating Co. Ltd to pay the costs.

(1) OJ C 256, 24.10.2009.

5.2.2011

Official Journal of the European Union

C 38/14

Judgment of the General Court of 15 December 2010 — Novartis AG v OHIM — Sanochemia Pharmazeutika (TOLPOSAN)

(Case T-331/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark TOLPOSAN - Earlier international word mark TONOPAN - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 38/24

Language of the case: German

Parties

Applicant: Novartis AG (Basle, Switzerland) (represented by: N. Hebeis, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sanochemia Pharmazeutika AG (Vienna, Austria)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 18 June 2009 (Case R 1601/2007-1), relating to opposition proceedings between Novartis AG and Sanochemia Pharmazeutika AG

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Novartis AG to pay the costs.

(1) OJ C 267, 7.11.2009.

5.2.2011

Official Journal of the European Union

C 38/14

Judgment of the General Court of 16 December 2010 — Lebedef v Commission

(Case T-364/09 P) (1)

(Appeal - Staff case - Officials - Annual leave - Half-time secondment for union representation - Unauthorised absence - Deduction of days from annual leave entitlement - Article 60 of the Staff Regulations)

2011/C 38/25

Language of the case: French

Parties

Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Other party to the proceedings: European Commission (represented by: G. Berscheid, agent, and by B. Wägenbaur, lawyer)

Re:

Appeal brought against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 7 July 2009 in Case F-39/08 Lebedef v Commission ECR-SC I-A-1-0000 and II-A-1-0000, with the request that the judgment be set aside.

Operative part of the judgment

The Court:

1.	dismisses the appeal;

2.	orders Mr Giorgio Lebedef to bear his own costs and to pay those incurred by the European Commission in these proceedings.

(1) OJ C 282 of 21.11.2009.

5.2.2011

Official Journal of the European Union

C 38/15

Judgment of the General Court of 15 December 2010 — Bianchin v OHIM — Grotto (GASOLINE)

(Case T-380/09) (1)

(Community trade mark - Invalidity proceedings - Community word mark GASOLINE - Earlier Community figurative mark GAS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 38/26

Language of the case: Italian

Parties

Applicant: Luciano Bianchin (Asolo, Italy) (represented by: G. Massa and P. Massa, 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, intervening before the General Court: Grotto SpA (Chiuppano, Italy) (represented by: F. Jacobacci, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 13 July 2009 (Case R 1455/2008-2) relating to invalidity proceedings between Grotto SpA and Luciano Bianchin.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Luciano Bianchin to pay the costs.

(1) OJ C 282, 21.11.2009.

5.2.2011

Official Journal of the European Union

C 38/15

Judgment of the General Court of 15 December 2010 — Wind v OHIM-Sanyang Industry (Wind)

(Case T-451/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Wind - Earlier national figurative mark Wind - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Lack of similarity of the goods and of the services)

2011/C 38/27

Language of the case: English

Parties

Applicant: Harry Wind (Selfkant, Germany) (represented by: J. Sroka, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sanyang Industry Co., Ltd (Hsinchu, Taïwan)

Re:

ACTION against the decision of the Fourth Board of Appeal of OHIM of 3 September 2009 (Case R 1470/2008-4), relating to opposition proceedings between Harry Wind and Sanyang Industry Co., Ltd

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Harry Wind to pay the costs.

(1) OJ C 24, 30.1.2010.

5.2.2011

Official Journal of the European Union

C 38/15

Judgment of the General Court of 16 December 2010 — Lebedef v Commission

(Case T-52/10 P) (1)

2011/C 38/28

Language of the case: French

Parties

Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and G. Berscheid, agents, and by B. Wägenbaur, lawyer)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (First Chamber) of 30 November 2009 in Case F-54/09 Lebedef v Commission ECR-SC I-A-1-0000 and II-A-1-0000, with the request that the order be set aside.

Operative part of the judgment

The Court:

1.	dismisses the appeal;

2.	orders Mr Giorgio Lebedef to bear his own costs and to pay those incurred by the European Commission in these proceedings.

(1) OJ C 113 of 1.5.2010.

5.2.2011

Official Journal of the European Union

C 38/16

Judgment of the General Court of 15 December 2010 — DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria)

(Case T-188/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Solaria - Earlier national figurative mark SOLARTIA - Relative ground for refusal - Likelihood of confusion - Similarity of the services - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 38/29

Language of the case: Spanish

Parties

Applicant: DTL Corporación SL (Madrid, Spain) (represented by: C. Rueda Pascual and A. Zuazo Araluze)

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, intervening before the General Court: Gestión de Recursos y Soluciones Empresariales SL (Pamplona, Spain) (represented by: C. Gutiérrez Martínez, H. Granado Carpenter and M. Polo Carreño, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 17 February 2010 (Case R 767/2009-2) relating to opposition proceedings between Gestión de Recursos y Soluciones Empresariales SL and DTL Corporación SL.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders DTL Corporación SL to pay the costs.

(1) OJ C 161, 19.6.2010.

5.2.2011

Official Journal of the European Union

C 38/16

Action brought on 7 December 2010 — Laboratoire Garnier v OHIM (natural beauty)

(Case T-559/10)

2011/C 38/30

Language in which the application was lodged: English

Parties

Applicant: Laboratoire Garnier et Cie (Paris, France) (represented by: R. Dissmann and A. Steegmann, lawyers)

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

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in case R 971/2010-1;

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

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘natural beauty’ for goods in class 3 — Community trade mark application No 8294233

Decision of the Examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of articles 7(1)(b) and (c) of Council Regulation No 207/2009, according to article 65 (2) of Council Regulation No 207/2009, as the Board of Appeal wrongly came to the conclusion that these absolute grounds of refusal apply to the contested trade mark.

5.2.2011

Official Journal of the European Union

C 38/17

Action brought on 10 December 2010 — Nencini v Parliament

(Case T-560/10)

2011/C 38/31

Language of the case: Italian

Parties

Applicant: Riccardo Nencini (Florence, Italy) (represented by: F. Bertini, lawyer)

Defendant: European Parliament

Form of order sought

—

Annul the decision of the Secretary-General of the European Parliament of 7 October 2010, addressed to Mr Riccardo Nencini, and Communication No 315653 of the Director General of the European Parliament’s Directorate-General for Finances of 13 October 2010 concerning ‘Recovery of undue payments in relation to the payment of parliamentary assistance and travel allowances — Debit note’, and of the following acts, already the subject of an earlier action pending before the Court in Case T-431/10: the decision of the Secretary-General of the European Parliament of 16 July 2010, addressed to the applicant and, in so far as necessary, any other acts prior to, related to or consequential upon the decision challenged in those proceedings; Communication No 312331 of the Director General of the European Parliament’s Directorate-General for Finances of 4 August 2010, addressed to Mr Riccardo Nencini and prior, related and consequential acts.

—	Annul the contested decision and refer the matter back to the Secretary-General of the European Parliament for a fair reassessment of the sum at issue.

—	In any event, order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in this case is the same applicant as in Case T-431/10 Nencini v Parliament (1).

In support of his action, the applicant puts forward pleas and arguments similar to those invoked in that case.

(1) OJ 2000 C 317, p. 40.

5.2.2011

Official Journal of the European Union

C 38/17

Action brought on 8 December 2010 — LG Electronics v OHIM (DIRECT DRIVE)

(Case T-561/10)

2011/C 38/32

Language in which the application was lodged: English

Parties

Applicant: LG Electronics, Inc. (Seoul, Republic of Korea) (represented by: M. Graf, lawyer)

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

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 September 2010 in case R 1027/2010-2;

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘DIRECT DRIVE’ for goods in classes 7 and 11 — Community trade mark application No 8797052

Decision of the Examiner: Rejection of the application for registration

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of articles 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal failed to take into account prior Community trade marks and national registrations as well as a national application.

5.2.2011

Official Journal of the European Union

C 38/18

Judgment of the Civil Service Tribunal (Second Chamber) of 14 December 2010 — Bleser v Court of Justice

(Case F-25/07) (1)

(Civil Service - Officials - Appointment - Classification in grade by application of new, less favourable, rules - Articles 2 and 13 of Annexe XIII to the Staff Regulations - Principle of transparency - Principle of correspondence between the grade and the post - Prohibition of discrimination on grounds of age - Duty of care - Principle of sound administration - Principles of legal certainty and non-retroactivity - The prohibition on reformatio in pejus - Principle of the protection of legitimate expectations - Principle of good faith - Principle patere legem quam ipse fecisti)

2011/C 38/33

Language of the case: German

Parties

Applicant: Thomas Bleser (Nittel, Germany) (represented by: P. Goergen and M. Wehrheim, lawyers)

Defendant: Court of Justice of the European Union (represented initially by: M. Schauss, Agent, later by A. V. Placco and M. Glaeser, Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and M. Simm, Agents)

Re:

Annulment of the decision of the Court of Justice classifying the applicant, who was placed on a reserve list before the entry into force of the new Staff Regulations, in accordance with the less favourable provisions thereof (Article 12 of Annex XII to Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials)

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders each party to bear its own costs.

(1) OJ C 117, 26.5.2007, p. 36.

5.2.2011

Official Journal of the European Union

C 38/18

Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Almeida Campos and Others v Council

(Case F-14/09) (1)

(Civil Service - Officials - Promotion - 2008 promotion procedure - Comparative examination of the merits of administrators assigned to language posts and administrators assigned to general posts)

2011/C 38/34

Language of the case: French

Parties

Applicants: Ana Maria Almeida Campos (Brussels, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer, G. Kimberley, Agents)

Re:

Annulment of the appointing authority’s decisions not to promote the applicants to grade AD 12 under the 2008 promotion procedure and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008.

Operative part of the judgment

The Tribunal:

1.	Annuls the decisions of the Council of the European Union refusing to promote to grade AD 12 Ms Almeida Campos, Ms Dariol, Ms Morello and Ms Verstreken under the 2008 promotion procedure;

2.	Dismisses the rest of the action;

3.	Orders the Council of the European Union to pay all the costs.

(1) OJ C 90, 18.4.2009, p. 40.

5.2.2011

Official Journal of the European Union

C 38/19

Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Saracco v ECB

(Case F-66/09) (1)

(Civil service - ECB staff - Leave on personal grounds - Maximum duration - Refusal to extend)

2011/C 38/35

Language of the case: French

Parties

Applicant: Roberta Saracco (Arona, Italy) (represented by: F. Parrat, lawyer)

Defendant: European Central Bank (ECB) (represented by: F. Malfrère, G. Nuvoli, Agents, and B Wägenbaur, lawyer)

Re:

Annulment of the ECB’s decision refusing to extend the applicant’s leave on personal grounds.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Ms Saracco to pay all the costs.

(1) OJ C 205, 29.8.2009, p. 51.

5.2.2011

Official Journal of the European Union

C 38/19

Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Angelo Sánchez v Council

(Case F-67/09) (1)

(Civil Service - Special leave - Serious illness of a parent - Method of calculating the number of days of' leave where several parents seriously ill)

2011/C 38/36

Language of the case: French

Parties

Applicant: Nicolás Angelo Sánchez (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

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

Re:

Annulment of the defendant’s decisions refusing applications for special leave made by the applicant because of the serious illness of his parents.

Operative part of the judgment

The Tribunal:

1.	Annuls the decisions of the Council of the European Union of 8 October 2008 and 8 December 2008 refusing the applications for special leave made by the Mr Angelo Sánchez;

2.	Orders the Council of the European Union to pay all the costs.

(1) OJ C 220, 12.9.2009, p. 43.

5.2.2011

Official Journal of the European Union

C 38/19

Order of the Civil Service Tribunal (First Chamber) of 16 December 2010 — AG v Parliament

(Case F-25/10) (1)

(Civil Service - Officials - Dismissal at the end of the probationary period - Manifest inadmissibility - Action brought out of time - Notice by registered letter with acknowledgement of receipt)

2011/C 38/37

Language of the case: French

Parties

Applicant: AG (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: European Parliament (represented by: S. Seyr and V. Montebello-Demogeot, Agents)

Re:

Annulment of the decision to dismiss the applicant at the end of the probationary period and compensation for the loss allegedly suffered.

Operative part of the order

The Tribunal:

1.	Dismisses the application as manifestly inadmissible.

2.	Orders AG to pay all the costs.

(1) OJ C 161, 19.6.2010, p. 58.

		ISSN 1725-2423 doi:10.3000/17252423.C_2011.038.eng
Official Journal of the European Union		C 38

English edition	Information and Notices	Volume 54 5 February 2011

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2011/C 038/01	Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 30, 29.1.2011	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2011/C 038/02	Case C-532/10 P: Appeal brought on 16 November 2010 by adp Gauselmann GmbH against the judgment of the General Court (Seventh Chamber) delivered on 9 September 2010 in Case T-106/09: adp Gauselmann GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean	2

2011/C 038/03	Case C-534/10 P: Appeal brought on 17 December 2010 by Brookfield New Zealand Ltd, Elaris SNC against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-135/08: Schniga v OCVV — Elaris et Brookfield New Zealand (Gala Schnitzer)	2

2011/C 038/04	Case C-538/10: Reference for a preliminary ruling from the Tribunal de première instance, Liège (Belgium) lodged on 19 November 2010 — Richard Lebrun, Marcelle Howet v État belge — SPF Finances	4

2011/C 038/05	Case C-541/10 P: Appeal brought on 22 November 2010 by Quinta do Portal SA against the judgment of the General Court (Eighth Chamber) delivered on 8 September 2010 in Case T-369/09 Quinta do Portal v OHIM	4

2011/C 038/06	Case C-545/10: Action brought on 23 November 2010 — European Commission v Czech Republic	5

2011/C 038/07	Case C-556/10: Action brought on 26 November 2010 — European Commission v Federal Republic of Germany	5

2011/C 038/08	Case C-557/10: Action brought on 29 November 2010 — European Commission v Portuguese Republic	7

2011/C 038/09	Case C-563/10: Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 1 December 2010 — Kashayar Khavand v Federal Republic of Germany	7

2011/C 038/10	Case C-585/10: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 13 December 2010 — Niels Møller v Haderslev Kommune	8

	General Court
2011/C 038/11	Joined Cases T-231/06 and T-237/06: Judgment of the General Court of 16 December 2010 — Netherlands v Commission (State aid — Public service broadcasting — Measures taken by the Netherlands authorities — Decision declaring State aid compatible in part and incompatible in part with the common market — New aid or existing aid — Concept of State aid — Concept of undertaking — Overcompensation for the costs of the public service mission — Proportionality — Duty to give reasons — Rights of the defence)	9

2011/C 038/12	Case T-19/07: Judgment of the General Court of 16 December 2010 — Systran and Systran Luxembourg v Commission (Non-contractual liability — Call for tenders to carry out a project relating to the maintenance and linguistic enhancement of the Commission's machine translation system — Source codes for a computer program being marketed — Infringement of copyright — Unauthorised disclosure of know-how — Action for compensation — Non-contractual dispute — Admissibility — Actual and certain damage — Causal link — Flat-rate assessment of the amount of the damage)	9

2011/C 038/13	Case T-276/07: Judgment of the General Court of 16 December 2010 — Martin v Parliament (Rules concerning expenses and allowances for Members of the European Parliament — Recovery of sums wrongly paid)	10

2011/C 038/14	Case T-141/08: Judgment of the General Court of 15 December 2010 — E.ON Energie v Commission (Competition — Administrative procedure — Decision finding that seals had been broken — Article 23(1)(e) of Regulation (EC) No 1/2003 — Burden of proof — Presumption of innocence — Proportionality — Duty to state reasons)	10

2011/C 038/15	Case T-369/08: Judgment of the General Court of 17 December 2010 — EWRIA and Others v Commission (Dumping — Imports of iron or steel ropes and cables originating in China, India, South Africa, Ukraine and Russia — Refusal to initiate a partial interim review of the anti-dumping duty imposed)	10

2011/C 038/16	Case T-427/08: Judgment of the General Court of 15 December 2010 — CEAHR v Commission (Agreements, decisions and concerted practices — Abuse of dominant position — Decision rejecting a complaint — Refusal of Swiss watch producers to supply spare parts to independent watch repairers — Community interest — Relevant market — Primary market and after market — Duty to give reasons — Manifest error of assessment)	11

2011/C 038/17	Case T-460/08: Judgment of the General Court of 17 December 2010 — Commission v Acentro Turismo (Arbitration clause — Contract for the provision of services concerning the organisation of journeys for official trips — Non-performance of the contract — Admissibility — Payment of principal sums due — Late payment interest)	11

2011/C 038/18	Case T-132/09: Judgment of the General Court of 15 December 2010 — Epcos v OHIM — Epco Sistemas (EPCOS) (Community trade mark — Opposition proceedings — Application for Community figurative mark EPCOS — Earlier national figurative mark epco SISTEMAS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of earlier mark — Article 43(2) and (3) of Regulation No 40/94 (now Article 42(2) and (3) of Regulation No 207/2009)	12

2011/C 038/19	Case T-143/09 P: Judgment of the General Court of 16 December 2010 — Commission v Petrilli (Appeal — Staff cases — Auxiliary contract staff — Fixed-term contract — Rules on the maximum duration for employing non-permanent staff in the Commission services — Decision to refuse renewal of the contract)	12

2011/C 038/20	Case T-175/09 P: Judgment of the General Court of 16 December 2010 — Council v Stols (Appeal — Public service — Promotion — Comparative examination of the merits — Manifest error of assessment — Distortion of the evidence)	12

2011/C 038/21	Case T-191/09: Judgment of the General Court of 16 December 2010 — HIT Trading and Berkman Forwarding v Commission (Customs Union — Importation of compact fluorescent lamps with integrated electronic ballasts (CFL-i) from Pakistan — Post-clearance recovery of import duties — Application for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)	13

2011/C 038/22	Case T-259/09: Judgment of the General Court of 16 December 2010 — Commission v Arci Nuova associazione comitato di Cagliari and Gessa (Arbitration clause — Agreement entered into as part of support for European discussion projects organised by non-governmental organisations for 2003 — Action brought against the head of an association — No jurisdiction — Failure to implement the agreement — Repayment of sums advanced)	13

2011/C 038/23	Case T-323/09: Judgment of the General Court of 24 November 2010 — Commission v Irish Electricity Generating (Arbitration clause — Contract concluded in the framework of a specific programme for research and technological development, including demonstration, in the field of non-nuclear energy (1994 to 1998) — Non-performance of the contract — Reimbursement of the sums advanced — Late-payment interest — Procedure by default)	14

2011/C 038/24	Case T-331/09: Judgment of the General Court of 15 December 2010 — Novartis AG v OHIM — Sanochemia Pharmazeutika (TOLPOSAN) (Community trade mark — Opposition proceedings — Application for the Community word mark TOLPOSAN — Earlier international word mark TONOPAN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)	14

2011/C 038/25	Case T-364/09 P: Judgment of the General Court of 16 December 2010 — Lebedef v Commission (Appeal — Staff case — Officials — Annual leave — Half-time secondment for union representation — Unauthorised absence — Deduction of days from annual leave entitlement — Article 60 of the Staff Regulations)	14

2011/C 038/26	Case T-380/09: Judgment of the General Court of 15 December 2010 — Bianchin v OHIM — Grotto (GASOLINE) (Community trade mark — Invalidity proceedings — Community word mark GASOLINE — Earlier Community figurative mark GAS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)	15

2011/C 038/27	Case T-451/09: Judgment of the General Court of 15 December 2010 — Wind v OHIM-Sanyang Industry (Wind) (Community trade mark — Opposition proceedings — Application for Community figurative mark Wind — Earlier national figurative mark Wind — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Lack of similarity of the goods and of the services)	15

2011/C 038/28	Case T-52/10 P: Judgment of the General Court of 16 December 2010 — Lebedef v Commission (Appeal — Staff case — Officials — Annual leave — Half-time secondment for union representation — Unauthorised absence — Deduction of days from annual leave entitlement — Article 60 of the Staff Regulations)	15

2011/C 038/29	Case T-188/10: Judgment of the General Court of 15 December 2010 — DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria) (Community trade mark — Opposition proceedings — Application for Community figurative mark Solaria — Earlier national figurative mark SOLARTIA — Relative ground for refusal — Likelihood of confusion — Similarity of the services — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)	16

2011/C 038/30	Case T-559/10: Action brought on 7 December 2010 — Laboratoire Garnier v OHIM (natural beauty)	16

2011/C 038/31	Case T-560/10: Action brought on 10 December 2010 — Nencini v Parliament	17

2011/C 038/32	Case T-561/10: Action brought on 8 December 2010 — LG Electronics v OHIM (DIRECT DRIVE)	17

	European Union Civil Service Tribunal
2011/C 038/33	Case F-25/07: Judgment of the Civil Service Tribunal (Second Chamber) of 14 December 2010 — Bleser v Court of Justice (Civil Service — Officials — Appointment — Classification in grade by application of new, less favourable, rules — Articles 2 and 13 of Annexe XIII to the Staff Regulations — Principle of transparency — Principle of correspondence between the grade and the post — Prohibition of discrimination on grounds of age — Duty of care — Principle of sound administration — Principles of legal certainty and non-retroactivity — The prohibition on reformatio in pejus — Principle of the protection of legitimate expectations — Principle of good faith — Principle patere legem quam ipse fecisti)	18

2011/C 038/34	Case F-14/09: Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Almeida Campos and Others v Council (Civil Service — Officials — Promotion — 2008 promotion procedure — Comparative examination of the merits of administrators assigned to language posts and administrators assigned to general posts)	18

2011/C 038/35	Case F-66/09: Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Saracco v ECB (Civil service — ECB staff — Leave on personal grounds — Maximum duration — Refusal to extend)	19

2011/C 038/36	Case F-67/09: Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Angelo Sánchez v Council (Civil Service — Special leave — Serious illness of a parent — Method of calculating the number of days of' leave where several parents seriously ill)	19

2011/C 038/37	Case F-25/10: Order of the Civil Service Tribunal (First Chamber) of 16 December 2010 — AG v Parliament (Civil Service — Officials — Dismissal at the end of the probationary period — Manifest inadmissibility — Action brought out of time — Notice by registered letter with acknowledgement of receipt)	19