Official Journal C 260/2008

On 17 September 2008, the Plenary Meeting of the Court of First Instance decided, following Mr O'Higgins's taking up of his duties as a Judge, to amend as follows the decisions of the Plenary Meetings of 25 September 2007 and 8 July 2008 on the assignment of the Judges to Chambers.

For the period from 17 September 2008 to 30 September 2008, and then for the period from 1 October 2008 to 31 August 2010, the following assignments are made:

Third Chamber (Extended Composition), sitting with five Judges:

Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O'Higgins, Judges.

Fourth Chamber (Extended Composition), sitting with five Judges:

Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O'Higgins, Judges.

Fourth Chamber, sitting with three Judges:

Mr Czúcz, President of the Chamber;

Ms Labucka, Judge;

Mr O'Higgins, Judge.

11.10.2008

Official Journal of the European Union

C 260/3

Judgment of the Court (Second Chamber) of 3 July 2008 — Commission of the European Communities v Ireland

(Case C-215/06) (1)

(Failure of a Member State to fulfil obligations - No assessment of the environmental effects of projects within the scope of Directive 85/337/EEC - Regularisation after the event)

(2008/C 260/03)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and D. Lawunmi, Agents)

Defendant: Ireland (represented by: D. O'Hagan, Agent, J. Connolly SC and G. Simons BL)

Re:

Failure of a Member State to fulfil obligations — Articles 2, 4 and 5 to 10 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Failure to adopt measures to ensure that projects which are within the scope of the directive are made subject to an impact assessment

Operative part of the judgment

The Court:

Declares that, by failing to adopt all measures necessary to ensure that:

—

projects which are within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment either before or after amendment by Council Directive 97/11/EC of 3 March 1997 are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, and

—

development consents given for, and the execution of work on, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11, Ireland has failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive;

2)	Orders Ireland to pay the costs.

(1) OJ C 178, 29.7.2006.

11.10.2008

Official Journal of the European Union

C 260/3

Judgment of the Court (First Chamber) of 10 July 2008 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland)) — Alicja Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu

(Case C-25/07) (1)

(VAT - Directives 67/227/EEC and 77/388/EEC - National legislation determining conditions for repayment of excess VAT - Principles of tax neutrality and proportionality - Special derogating measures)

(2008/C 260/04)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny we Wrocławiu

Parties to the main proceedings

Applicant: Alicja Sosnowska

Defendant: Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny we Wrocławiu — Interpretation of the third paragraph of Article 5 EC, Article 2 of Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition, 1967, p. 14), and Articles 18(4) and 27(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National VAT legislation laying down, in relation to the period for refunding overpayments, less favourable rules for taxpayers beginning to carry out taxable operations and registered as taxpayers making intra-Community supplies — Principles of fiscal neutrality and proportionality

Operative part of the judgment

Article 18(4) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2005/92/EC of 2 December 2005, and the principle of proportionality preclude national legislation, such as that at issue in the main proceedings, which, in order to allow investigations required to prevent tax evasion and avoidance, extends from 60 to 180 days, as from the date of submission of the taxable person's VAT return, the period available to the national tax office for repayment of excess VAT to a category of taxable persons, unless those persons lodge a security deposit to a value of PLN 250 000;

2.	Provisions such as those at issue in the main proceedings do not constitute ‘special measures for derogation’ intended to prevent certain types of tax evasion or avoidance within the meaning of Article 27(1) of the Sixth Directive 77/388, as amended by Directive 2005/92.

(1) OJ C 69, 24.3.2008.

11.10.2008

Official Journal of the European Union

C 260/4

Judgment of the Court (Third Chamber) of 12 August 2008 (reference for a preliminary ruling from the Cour d'appel de Montpellier — France) — Criminal proceedings of extradition v Ignacio Pedro Santesteban Goicoechea

(Case C-296/08 PPU) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - Articles 31 and 32 - European arrest warrant and the surrender procedures between Member States - Possibility for the State executing an extradition request to apply a convention adopted before 1 January 2004 but applicable in that State from a later date)

(2008/C 260/05)

Language of the case: French

Referring court

Cour d'appel de Montpellier

Party in the main proceedings

Ignacio Pedro Santesteban Goicoechea

Re:

Reference for a preliminary ruling — Cour d'appel de Montpellier (France) — Interpretation of Articles 31 and 32 of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) — Power of a Member State to use in its relations with another Member State procedures other than those provided for in the Framework Decision, in particular, those provided for by the Dublin Convention of 27 September 1996 relating to extradition between the Member States of the European Union — Effect of the failure of the Member State issuing the arrest warrant to give notification of the agreements and arrangements which it wishes to continue to apply — Possibility, for the Member State executing the arrest warrant, to apply a convention adopted prior to 1 January 2004, but which entered into force in that Member State after that date

Operative part of the judgment

Article 31 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as referring only to the situation in which the European arrest warrant system is applicable, which is not the case where a request for extradition relates to acts committed before a date specified by a Member State in a statement made pursuant to Article 32 of that Framework Decision;

Article 32 of Framework Decision 2002/584 must be interpreted as not precluding the application by an executing Member State of the Convention relating to extradition between the Member States of the European Union drawn up by Council Act of 27 September 1996 and signed on that date by all the Member States, even where that convention became applicable in that Member State only after 1 January 2004.

(1) OJ C 223, 30.8.2008.

11.10.2008

Official Journal of the European Union

C 260/5

Appeal brought on 27 June 2008 by Landtag Schleswig-Holstein against the order lodged on 3 April 2008 by the Court of First Instance (Second Chamber) in Case T-236/06, Landtag Schleswig-Holstein v Commission of the European Communities

(Case C-281/08 P)

(2008/C 260/06)

Language of the case: German

Parties

Appellant: Landtag Schleswig-Holstein (represented by: S. Laskowski and J. Caspar, acting as Agents)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	declare the appeal to be admissible and well founded;

—	annul the order of the Court of First Instance of 3 April 2008;

—	uphold the appellant's application at first instance and declare the application in Case T-236/06 to be admissible and well founded;

—	in the alternative, refer the case back to the Court of First Instance, for the latter to admit the original application and the prior proceedings to be continued;

—	rule on costs and order the Commission to pay all of the costs of the present proceedings.

Pleas in law and main arguments

The Court of First Instance rejected as inadmissible the appellant's application for annulment brought against the Commission of the European Communities on the ground that the appellant is not a legal person within the meaning of the fourth paragraph of Article 230 EC. The application for annulment was brought against the Commission decisions of 10 March 2006 and 23 June 2006, by which the appellant was refused access to document SEK(2005) 420 containing a legal analysis of a draft framework decision, under discussion in the Council, on the retention of data for purposes of the prevention, investigation, detection and prosecution of crime and criminal offences, including terrorism.

The appellant bases its appeal against the contested order of the Court of First Instance on two grounds.

First, it alleges that the Court of First Instance infringed the audi alteram partem rule in judicial proceedings. This principle is designed, inter alia, as an expression of the guarantee of a fair hearing and effective legal protection, to prevent judicial decisions from being potentially influenced by arguments which the parties have not been given the opportunity to discuss. As a result, a decision causing surprise to the parties should be avoided. In order to avoid a judgment of such a kind, the Court of First Instance should have given the appellant the opportunity to obtain clarification.

Secondly, the appellant submits that Court of First Instance infringed Community law by misinterpreting the constituent element ‘legal person’ within the meaning of the fourth paragraph of Article 230 EC, and erred in law by denying the status of legal person, and, in consequence, locus standi to the appellant.

The Court of First Instance proceeded on the basis that the President of the Schleswig-Holstein Landtag (Land Parliament) represents, in the context of his powers as legal representative, not the appellant, but rather ‘the Land directly’, as a result of which it concluded that the appellant does not have legal capacity and thus also does not have locus standi before the Community Courts. It can be deduced from this that the Court of First Instance would have regarded the application as admissible had it been brought by the ‘Land Schleswig-Holstein’ rather than by the appellant. This view is not only incorrect in law, inasmuch as it is at odds with the Constitution of the Land of Schleswig-Holstein, but also inasmuch as it constitutes, in the appellant's view, a surprising decision which the latter should not have had to expect. The order of the Court of First Instance is wrong in law, first, because it failed to recognise that the Landtag is, according to the Constitution of the Land of Schleswig-Holstein, the ‘highest body of political aspiration elected by the people’, and, secondly, because the Court of First Instance did not realise that the President of the Landtag represents the Landtag in its entirety with regard to constitutional disputes affecting it. The term ‘Land’ is used, legally, in an extensive and non-specific way, and may refer, depending on the legal context, to both the Land Government and the Land Parliament.

11.10.2008

Official Journal of the European Union

C 260/5

Reference for a preliminary ruling from the Tribunal de Première Instance de Mons (Belgium) lodged on 14 July 2008 — Societe De Gestion Industrielle (SGI) v Belgian State

(Case C-311/08)

(2008/C 260/07)

Language of the case: French

Referring court

Tribunal de Première Instance de Mons

Parties to the main proceedings

Applicant: Societe De Gestion Industrielle

Defendant: Belgian State

Questions referred

Does Article 43 of the EC Treaty in conjunction with Article 48 and, as appropriate, Article 12 of the Treaty, preclude legislation of a Member State which, like that at issue, results in taxation of a company resident in Belgium on an exceptional or gratuitous advantage which it granted to a company established in another Member State with which the Belgian company is, directly or indirectly, in a relationship of interdependence, whereas in identical circumstances the company resident in Belgium may not be taxed on an exceptional or gratuitous advantage where that advantage is granted to another company established in Belgium with which the Belgian company is, directly or indirectly, in a relationship of interdependence?

Does Article 56 of the EC Treaty, in conjunction with Article 48 and, as appropriate, Article 12 of the Treaty, preclude legislation of a Member State which, like that at issue, results in taxation of the company resident in Belgium on an exceptional or gratuitous advantage which it granted to a company established in another Member State with which the Belgian company is, directly or indirectly, in a relationship of interdependence, whereas in identical circumstance the resident Belgian company cannot be taxed on an exceptional or gratuitous advantage where that advantage is granted to another company established in Belgium with which the Belgian company is, directly or indirectly, in a relationship of interdependence?

11.10.2008

Official Journal of the European Union

C 260/6

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 July 2008 — Angelo Grisoli v Regione Lombardia and Comune di Roccafranca

(Case C-315/08)

(2008/C 260/08)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Angelo Grisoli

Defendant: Regione Lombardia

Questions referred

1.	Is it compatible with Articles 152 and 153 of the Treaty on the European Union that there is a single pharmacy in communes with a population of less than 4 000 inhabitants?

Is it compatible with Articles 152 and 153 of the Treaty on European Union to make the establishment of the second pharmacy in communes with a population of over 4 000 inhabitants subject to conditions such as population over that amount of at least 50 per cent of the levels, distance of at least 3 000 metres from the existing pharmacy, and existence of particular requirements of the pharmacy service in relation to the topographical and road conditions, to be assessed by both the health units (local health companies) and the local association of pharmacists or in any event by the authorities competent for matters of organisation and review of the pharmacy service?

11.10.2008

Official Journal of the European Union

C 260/6

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 15 July 2008 — Latex Srl v Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze

(Case C-316/08)

(2008/C 260/09)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Latex Srl

Defendants: Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze

Questions referred

1.	Does Article 18(4) of the Sixth Directive (1), given the neutrality of the VAT system, permit the Member States to completely exclude the right to deduct, also in the period following the years concerned, providing only for a refund?

2.	If the answer is in the affirmative, do Article 18(4) and the principle of the effectiveness of the protection of rights arising under the Community legal system impose an obligation on the Member States nonetheless to ensure that those refunds are made within a reasonable period of time?

(1) Directive 388/77/EEC, OJ L 145, p. 1.

11.10.2008

Official Journal of the European Union

C 260/7

Reference for a preliminary ruling from the Landessozialgericht Berlin-Brandenburg (Germany) lodged on 18 July 2008 — Christel Reinke v AOK Berlin

(Case C-336/08)

(2008/C 260/10)

Language of the case: German

Referring court

Landessozialgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: Christel Reinke

Defendant: AOK Berlin

Questions referred

Does the entitlement to reimbursement under Article 34(4) and (5) of Regulation (EEC) No 574/72 (1) cover the costs of emergency treatment incurred by a pensioner entitled to benefits under Article 31 of Regulation (EEC) No 1408/71 in a private clinic in the place of stay if the competent hospital has refused to provide the treatment by way of benefit in kind on the ground of overcrowding?

May reimbursement be limited to the reimbursement rates provided for in Article 34(4) of Regulation (EEC) No 574/72 where the competent institution pays hospitals for benefits in kind, not on the basis of abstract and general rates, but on the basis of individual contracts, and where national law does not limit the benefit in kind to treatment in certain hospitals?

3.	Is a national provision according to which reimbursement of the cost of treatment in a private hospital in another Member State is excluded, even in the case of emergency treatment, compatible with Articles 49 EC and 50 EC and 18 EC?

(1) Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159).

11.10.2008

Official Journal of the European Union

C 260/7

Reference for a preliminary ruling from the Commissione Tributaria Regionale (Italy) lodged on 23 July 2008 — P. FERRERO e C. Spa v Agenzia Entrate — Ufficio di Alba

(Case C-338/08)

(2008/C 260/11)

Language of the case: Italian

Referring court

Commissione Tributaria Regionale

Parties to the main proceedings

Applicant: P. FERRERO e C. Spa

Defendant: Agenzia Entrate — Ufficio di Alba

Questions referred

1.	Whether the withholding tax applicable to the dividend adjustment constitutes withholding tax on profits prohibited by Article 5(1) of Directive 435/90/EEC (1) (in the case in point the subsidiary opted for the agreement-based regime);

2.	As a subordinate point, in the case of an affirmative answer to the first question, whether the protective clause referred to in Article 7(2) of the Directive applies.

(1) OJ L 225, p. 6.

11.10.2008

Official Journal of the European Union

C 260/7

Reference for a preliminary ruling from the Commissione Tributaria Regionale (Italy) lodged on 23 July 2008 — General Beverage Europe B.V. v Agenzia delle Entrate — Ufficio di Alba

(Case C-339/08)

(2008/C 260/12)

Language of the case: Itailan

Referring court

Commissione Tributaria Regionale

Parties to the main proceedings

Applicant: General Beverage Europe B.V.

Defendant: Agenzia delle Entrate — Ufficio di Alba

Questions referred

1.	Whether the withholding tax levied on the dividend adjustment constitutes withholding tax on profits prohibited under Article 5 of Directive 90/435/EEC (1),

Whether the protective clause referred to in Article 7(2) of that Directive applies, in particular whether Article 7(2) of Directive 435/90/EEC of 23 July 1990 must be interpreted as meaning that a Member State may decide not to apply the exemption referred to in Article 5(1) of the Directive in the case that the State of residence of the parent company grants the latter a tax credit by virtue of a bilateral convention.

(1) OJ L 225, p. 6.

11.10.2008

Official Journal of the European Union

C 260/8

Reference for a preliminary ruling from House of Lords (United Kingdom) lodged on 23 July 2008 — The Queen (on the application of M) (FC) v Her Majesty's Treasury and two other actions

(Case C-340/08)

(2008/C 260/13)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: The Queen (on the application of M) (FC)

Defendant: Her Majesty's Treasury and two other actions

Question referred

Does Article 2(2) of Council Regulation (EC) No 881/2002 (1) apply to the provision by the State of social security or social assistance benefits to the spouse of a person designated by the Sanctions Committee established pursuant to United Nations Resolution 1267 (1999) on the ground only that the spouse lives with the designated person and will or may use some of the money to pay for goods and services which the latter will consume or from which he will benefit?

(1) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 139, p. 9).

11.10.2008

Official Journal of the European Union

C 260/8

Reference for a preliminary ruling from the Sozialgericht Dortmund (Germany) lodged on 24 July 2008 — Dr Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

(Case C-341/08)

(2008/C 260/14)

Language of the case: German

Referring court

Sozialgericht Dortmund

Parties to the main proceedings

Applicant: Dr Domnica Petersen

Defendant: Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

Questions referred

May the statutory regulation of a maximum age limit for admission to practice a profession (here: to work as a panel dentist) be an objective and reasonable measure to protect a legitimate aim (here: the health of patients insured under the statutory health insurance scheme) and an appropriate and necessary means of achieving that aim within the meaning of Article 6 of Directive 2000/78/EC if it is derived solely from an assumption (1), based on ‘general experience’, that a general drop in performance occurs from a certain age, without any account being taken of the individual performance of the person in question?

If Question 1 is to be answered in the affirmative, may a legitimate (legislative) aim within the meaning of Article 6 of Directive 2000/78/EC (here: the protection of the health of patients insured under the statutory health insurance scheme) be taken to exist even where that aim was entirely irrelevant to the national legislature in the exercise of its legislative discretion?

If Questions 1 and 2 are to be answered in the negative, may a law enacted prior to the adoption of Directive 2000/78/EC which is incompatible with that directive be disapplied, by virtue of the primacy of European law, even where the national law transposing the directive (here: Allgemeines Gleichbehandlungsgesetz — General Law on equal treatment) makes no provision for such a legal consequence in the event of a breach of the prohibition of discrimination?

(1) OJ 2000 L 303, p. 16.

11.10.2008

Official Journal of the European Union

C 260/9

Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 28 July 2008 — Krzysztof Pesla v Justizministerium Mecklenburg-Vorpommern

(Case C-345/08)

(2008/C 260/15)

Language of the case: German

Referring court

Verwaltungsgericht Schwerin

Parties to the main proceedings

Applicant: Krzysztof Pesla

Defendant: Justizministerium Mecklenburg-Vorpommern

Questions referred

Is it compatible with Article 39 EC that a finding of equivalence under Paragraph 112a(1) and (2) of the Deutsches Richtergesetz (German Law on Judges) is made only if can be established on the basis of the documentary evidence submitted that the EU citizen has the knowledge and skills as tested in the (German legal) examination of mandatory subjects provided for in Paragraph 5(1) of the Deutsches Richtergesetz?

If question 1 is to be answered in the negative: Does Article 39 EC require that the only criterion for an assessment of equivalence which is consistent with European law is whether the university diploma obtained by the EU citizen in the EU together with the additional evidence submitted by him of educational performance and experience is comparable from the point of view of the (intellectual) level of education and the extent of that education to the first German State examination in law?

If question 2 is also to be answered in the negative: Is it compatible with Article 39 EC, if the finding of equivalence under Paragraph 112a(1) and (2) of the Deutsches Richtergesetz still takes the material examined in the mandatory subjects of the first (German legal) State examination as its reference point, but in the light of the legal education successfully completed elsewhere in the Community only somewhat ‘lowered’ requirements are imposed?

11.10.2008

Official Journal of the European Union

C 260/9

Action brought on 25 July 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-346/08)

(2008/C 260/16)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and A. Alcover San Pedro, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

—	declare that, by refusing to apply Directive 2001/80/EC (1) on the limitation of emissions of certain pollutants into the air from large combustion plants to the Lynemouth Power Plant, the United Kingdom has failed to fulfil its obligations under that Directive;

—	order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The Commission submits that the coal-fired power plant at Lynemouth in Northumberland constitutes a combustion plant within the meaning of the directive. Initially, the United Kingdom shared this view but, following a radical change of position, now vigorously contests it.

If the Lynemouth power plant is covered by the directive, as the Commission claims, then it is plainly an ‘existing plant’ within the meaning of Article 2(10) of the directive. It is common ground between the parties that the original operating licence was granted before 1 July 1987. It follows that, in the Commission's view, emissions from the plant should have been significantly reduced by 1 January 2008 in accordance with Article 4(3).

The Commission submits that, by failing to apply the directive to the Lynemouth power plant, the United Kingdom has acted in breach of that directive. The failure to significantly reduce emissions from the plant by 1 January 2008 constitutes a continuing breach of Community law.

(1) JO L 309, p. 1.

11.10.2008

Official Journal of the European Union

C 260/10

Reference for a preliminary ruling from the Tribunal Superior de Justicia Murcia (Spain) lodged on 30 July 2008 — Aurelio Choque Cabrera v Delegación del Gobierno en Murcia

(Case C-348/08)

(2008/C 260/17)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia Murcia

Parties to the main proceedings

Applicant: Aurelio Choque Cabrera

Defendant: Delegación del Gobierno en Murcia

Question referred

Should Article 62(1) and (2)(a) of the Treaty Establishing the European Community and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (1) be interpreted as precluding national legislation, and the case-law which interprets it, which permits the substitution of the expulsion of any ‘third country national’ who does not have documentation authorising him to enter and remain in the territory of the European Union by the imposition of a fine?

(1) OJ 2006 L 105, p. 1.

11.10.2008

Official Journal of the European Union

C 260/10

Appeal brought on 30 July 2008 by WWF-UK Ltd against the order of the Court of First Instance (Eighth Chamber) delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v Council of the European Union

(Case C-355/08 P)

(2008/C 260/18)

Language of the case: English

Parties

Appellant: WWF-UK Ltd (represented by: R. Stein, Solicitor, P. Sands and J. Simor, Barristers)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	quash the Order of 5 June 2008 and declare WWF's application to the Court of First Instance (‘CFI’ ) admissible;

—	order the Council and Commission to pay WWF's costs before this Court and the Court of First Instance.

Pleas in law and main arguments

The CFI wrongly held that WWF's entitlement as a member of the RAC to be involved in the decision making procedure and the obligation on the Council to consider its views prior to adoption of the relevant measures were not sufficient to distinguish it ‘individually’ for the purposes of Article 230 EC Treaty. The CFI wrongly considered that WWF did not have procedural rights, holding that these belonged solely to the RAC and not to its members.

The CFI erroneously considered that even assuming ‘standing’, judicial protection would not be aimed at safeguarding WWF's procedural rights and did not therefore require judicial protection. That is an incorrect approach to the question of standing. Providing ‘direct and individual’ concern can be shown, the Applicant is entitled to challenge the ‘legality of the relevant measure’, which is what WWF seeks to do in this case. WWF is not confined to challenging a failure in the procedure, as the CFI suggest.

The CFI's decision is vitiated by procedural unfairness. The CFI closed the proceedings after receiving the intervention of the Commission dated 21 November 2007, despite having agreed on 27 September 2007 that WWF should have the opportunity to respond to any Commission observations. WWF was refused permission to send observations in response. WWF nevertheless sent in submissions but these were not considered by CFI prior to it reaching its determination, which makes no reference to WWF's submissions in response to the Commission. Accordingly, there has been a serious breach of natural justice and fair procedure by CFI.

11.10.2008

Official Journal of the European Union

C 260/11

Reference for a preliminary ruling from House of Lords (United Kingdom) lodged on 5 August 2008 — Aventis Pasteur SA v OB (by his mother and litigation friend) (FC)

(Case C-358/08)

(2008/C 260/19)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Aventis Pasteur SA

Defendant: OB

Question referred

Is it consistent with the European Product Liability Directive (1) for the laws of a Member State to allow substitution of a new defendant to a claim brought under the Directive after the 10 year period for enforcing rights under Article 11 of the Directive has expired in circumstances where the only person named as a defendant in proceedings instituted during the 10 year period was someone who does not fall within Article 3 of the Directive?

(1) Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, p. 29).

11.10.2008

Official Journal of the European Union

C 260/11

Reference for a preliminary ruling from the Tribunal de Première Instance d'Arlon (Belgium) lodged on 7 August 2008 — Marc Vandermeir v État Belge — SPF Finances

(Case C-364/08)

(2008/C 260/20)

Language of the case: French

Referring court

Tribunal de Première Instance d'Arlon

Parties to the main proceedings

Applicant: Marc Vandermeir

Defendant: État Belge — SPF Finances

Question referred

Do Articles 43 and/or 49 EC preclude national legislation of one Member State, such as the legislation in question, which requires a self-employed person residing in that Member State to register his vehicle there, although he carries on business almost exclusively in a second Member State from a fixed establishment that he owns there, and the vehicle is neither intended to be substantially used in the first Member State on a permanent basis, nor is in fact so used?

11.10.2008

Official Journal of the European Union

C 260/11

Action brought on 11 August 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-367/08)

(2008/C 260/21)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell, Agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC (1) of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, or in any event by failing to notify those provisions to the Commission, the United Kingdom has failed to fulfil its obligations under Article 16 of that Directive;

—	order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 1 April 2007.

(1) OJ L 102, p. 35.

11.10.2008

Official Journal of the European Union

C 260/12

Action brought on 13 August 2008 — Commission of the European Communities v Republic of Hungary

(Case C-374/08)

(2008/C 260/22)

Language of the case: Hungarian

Parties

Applicant(s): Commission of the European Communities (represented by: P. Dejmek and B.D. Simon, acting as Agent(s))

Defendant(s): Republic of Hungary

Form of order sought

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (1) or by failing to inform the Commission of such provisions, the Republic of Hungary has failed to fulfil its obligations under that directive;

—	order Republic of Hungary to pay the costs.

Pleas in law and main arguments

The time limit for implementing the directive expired on 31 December 2006.

(1) OJ L 177, p. 201.

11.10.2008

Official Journal of the European Union

C 260/13

Order of the President of the Court of First Instance of 27 August 2008 — Melli Bank v Council

(Case T-246/08 R)

(Applications for interim measures - Regulation (EC) No 423/2007 - Restrictive measures against the Islamic Republic of Iran - Council decision - Measure to freeze funds and economic resources - Application for suspension of operation of a measure - No urgency - Absence of serious and irreparable damage)

(2008/C 260/23)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom) (represented by: R. Gordon, QC, J. Stratford, M. Hoskins, Barristers, R. Gwynne and T. Din, Solicitors)

Defendant: Council of the European Union (represented by: M. Bishop and E. Finnegan, acting as Agents)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, acting as Agent, and S. Lee, Barrister) and French Republic (represented by: E. Belliard, G. de Bergues and L. Butel, acting as Agents)

Re:

Application for suspension of the application of paragraph 4, section B, of the Annex to Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29), in so far as Melli Bank plc is included in the list of legal persons, entities and bodies whose funds and economic resources are frozen.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

11.10.2008

Official Journal of the European Union

C 260/13

Appeal brought on 8 July 2008 by Stanislava Boudova and Others against the order of the Civil Service Tribunal delivered on 21 April 2008 in Case F-78/07, Boudova and Others v Commission

(Case T-271/08 P)

(2008/C 260/24)

Language of the case: French

Parties

Appellants: Stanislava Boudova (Howald, Luxembourg), Adovica (Luxembourg, Luxembourg), Kuba (Konz, Germany), Puciriuss (Luxembourg, Luxembourg), Strzelecka (Arlon, Belgium), Szyprowska (Berbourg, Luxembourg), Tibai (Luxembourg, Luxembourg), Vaituleviciene (Luxembourg, Luxembourg) (represented by Marc-Albert Lucas, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellants

—	annul the order of the Civil Service Tribunal of the European Union of 21 April 2008 in Case F-78/07;

—	grant the forms of order sought by the appellants in the application at first instance;

—	order the Commission to pay the costs of both sets of proceedings.

Pleas in law and main arguments

By the present appeal, the appellants seek the annulment of the order of the Civil Service Tribunal (CST) of 21 April 2008 in Case F-78/07 Boudova and Others v Commission by which the CST dismissed as manifestly inadmissible the action by which the appellants had sought the annulment of the decision rejecting their application for the revision of the classification in grade established by the decisions to recruit them.

In support of their appeal, the appellants submit, first, that the CST infringed its obligation to state reasons in paragraph 38 of the contested order in so far as they were recruited to temporarily fill permanent posts included in the list of posts and not to replace officials or temporary servants who were unable for the time being to perform their duties, with the result that they were in actual fact — or should have been — recruited as temporary servants, or at the very least were in a position analogous to that of temporary servants.

Secondly, the appellants maintain, as regards paragraphs 39 to 41 of the contested order, that, in not having discounted the possibility that the undertaking by the European Parliament, contained in a decision of 13 February 2006, to reclassify its employees — who were recruited as temporary servants before 1 May 2004 after having passed an internal or open competition published before 1 May 2004 and were subsequently appointed as officials in the same category but in a lower grade than that in which they would have been appointed before 1 May 2004 — stemmed from an obligation in the Staff Regulations, the CST infringed the case-law cited in paragraph 37 of the contested order.

Furthermore, the appellants submit that the question whether there is an obligation stemming from the Staff Regulations is not a point of fact in respect of which proof should have been adduced by the appellants, but a point of law which the CST should have resolved and that a difference in the classification of officials whose factual and legal situations are identical or similar stemming from a position adopted subsequently by an institution other than that to which the appellants belong constitutes a material new fact which warrants a re-examination of the appellants' classification in grade.

Thirdly, the appellants submit that the CST failed to have regard to the concept of excusable error in so far as the note in Administrative Notice No 59-2005, published by the Commission on 20 July 2005, was liable to mislead the appellants regarding the advisability of submitting a complaint against the classification decision within the period laid down in the Staff Regulations.

Lastly, the appellants submit that the CST's reasoning infringes the provisions of the Rules of Procedure concerning the inadmissibility of actions.

11.10.2008

Official Journal of the European Union

C 260/14

Action brought on 18 July 2008 — Perry v Commission

(Case T-280/08)

(2008/C 260/25)

Language of the case: French

Parties

Applicant: Claude Perry (Paris, France) (represented by: J. Culioli, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	rule that the Commission acted improperly;

—	rule that that improper conduct gives rise to the non-contractual liability of the Community;

—	rule that the applicant suffered loss as a result of that improper conduct;

—	rule that the Community is required to compensate that loss;

—	take formal notice that Mr Perry estimates his loss at EUR 1 000 000;

—	order the Community to pay Mr Perry EUR 1 000 000;

—	order the Community to pay all the costs and outlays of the proceedings;

—	rule that it is equitable that the Community pay the costs and fees of the defence, in the sum of EUR 10 000.

Pleas in law and main arguments

The applicant seeks compensation for the loss which it considers it suffered as a result of accusations of misuse of Community subsidies in the performance of certain contracts concluded between the applicant's companies and the Commission in the context of the European Union humanitarian aid programmes for Bosnia and the Great Lakes region of Africa.

The pleas and main arguments put forward by the applicant are identical to those put forward in case T-132/98 Perry Group and Isibiris v Commission (1).

(1) OJ 1998 C 312, p. 20.

11.10.2008

Official Journal of the European Union

C 260/14

Action brought on 30 July 2008 — Tresplain Investments v OHIM — Hoo Hing (Golden Elephant Brand)

(Case T-303/08)

(2008/C 260/26)

Language in which the application was lodged: English

Parties

Applicant: Tresplain Investments Ltd (Hong Kong, China) (represented by: D. McFarland, Barrister)

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

Other party to the proceedings before the Board of Appeal: Hoo Hing Holdings Ltd (Romford, United Kingdom)

Form of order sought

—	Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2008 in case R 889/2007-1; and

—	Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘Golden Elephant Brand’ for goods in class 30 — Community trade mark registration No 241 810

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The unregistered figurative mark ‘GOLDEN ELEPHANT’, which had been in use in the United Kingdom

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 73 and 74(1) of Council Regulation No 40/94 as the Board of Appeal erred by taking into account alleged facts, as well as legal presumptions and assumptions that had not been introduced or substantiated by the parties, while at the same time it refused to take into account other facts, evidence and arguments advanced by the applicant; infringement of Article 8(4) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there was a likelihood of relevant confusion between the trade marks concerned and, as a result, a likelihood of damage.

11.10.2008

Official Journal of the European Union

C 260/15

Action brought on 7 August 2008 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08)

(2008/C 260/27)

Language in which the application was lodged: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks, C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Goya Importaciones y Distribuciones SL (Cuarte de Huerva, Spain)

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 7 May 2008 in case R 1199/2007-1; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘4 OUT Living’ for goods and services in classes 18, 25 and 28

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Spanish trade mark registration No 2 604 969 of the figurative mark ‘Living & Co’ for goods and services in classes 3, 14, 16, 18, 21, 25, 34 and 35

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a risk of confusion between the trade marks concerned.

11.10.2008

Official Journal of the European Union

C 260/15

Action brought on 5 August 2008 — Parfums Christian Dior v OHIM — Consolidated Artists (MANGO adorably)

(Case T-308/08)

(2008/C 260/28)

Language in which the application was lodged: English

Parties

Applicant: Parfums Christian Dior SA (Paris, France) (represented by: E. Cornu, D. Moreau and F. de Visscher, lawyers)

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

Other party to the proceedings before the Board of Appeal: Consolidated Artists B.V. (Rotterdam, The Netherlands)

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 23 May 2008 in case R 1162/2007-2; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘MANGO adorably’ for goods in class 3

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

Mark or sign cited: French trade mark registration No 33 209 849 of the word mark ‘ADIORABLE’ for goods in class 3; French trade mark registration No 94 536 564 of the word mark ‘J'ADORE’ for various goods, amongst which goods in class 3; international trade mark registration No 811 001 of the word mark ‘ADIORABLE’ for various goods, amongst which goods in class 3; international trade mark registration No 687 422 of the word mark ‘J'ADORE’ for various goods, amongst which goods in class 3

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there was no likelihood of confusion between the trade marks concerned and that the use of the trade mark applied for would not take unfair advantage of the reputation of earlier trade marks, on the wrong reasoning that under both legal grounds the trade marks concerned are not sufficiently similar.

11.10.2008

Official Journal of the European Union

C 260/16

Action brought on 4 August 2008 — G-Star Raw Denim v OHIM — ESGW Holdings (G Stor)

(Case T-309/08)

(2008/C 260/29)

Language in which the application was lodged: English

Parties

Applicant: G-Star Raw Denim Kft. (Budapest, Hungary) (represented by: G. Vos, lawyer)

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

Other party to the proceedings before the Board of Appeal: ESGW Holdings Ltd (Tortola, British Virgin Islands)

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 14 April 2008 in case R 1232/2007-1;

—	Reject the registration of the Community trade mark application No 4 195 368; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘G Stor’ for goods in class 9

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

Mark or sign cited: Benelux trade mark registration No 545 551 of the word mark ‘G-STAR’ for goods in class 25; Community trade mark registration No 3 445 401 of the word/figurative mark ‘G-STAR’ for goods in class 9 and 25; Community trade mark registration No 3 444 262 of the word mark ‘G-Star’ for goods in class 9 and 25; earlier well-known trade mark ‘G-Star’ protected in various countries for goods in class 25; Community trade mark registration No 3 444 171 of the mark ‘G-STAR RAW DENIM’ for goods in class 9 and 35; Dutch trade name G-Star International B.V.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal applied the wrong criteria when assessing the required similarity between the trade marks concerned and the required detriment to the earlier trade marks. In addition, the Board of Appeal also made an incorrect assessment of the facts with regard to the abovementioned assessments.

11.10.2008

Official Journal of the European Union

C 260/16

Action brought on 11 August 2008 — REWE-Zentral v OHIM — Grupo Corporativo Teype (Solfrutta)

(Case T-331/08)

(2008/C 260/30)

Language in which the application was lodged: English

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: A. Bognár and M. Kinkeldey, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grupo Corporativo Teype, SL (Madrid, Spain)

Form of order sought

—	Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 May 2008 in case R 1679/2007-2; and

—	Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Solfrutta’ for goods in classes 29, 30 and 32

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Community trade mark registration No 1 687 722 of the word mark ‘FRUTISOL’ for goods in class 32; Spanish trade mark registration No 2 018 327 of the word mark ‘FRUTISOL’ for goods in class 32

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in not taking into account the alleged weak distinctiveness of the earlier trade marks. Likewise, when assessing only the similarity of the single elements of the trade marks concerned, the Board of Appeal did not sufficiently take into account that the most relevant aspect in the framework of such assessment is the overall impression conveyed by the trade marks concerned.

11.10.2008

Official Journal of the European Union

C 260/17

Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of an Easter bunny made of chocolate)

(Case T-336/08)

(2008/C 260/31)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

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

Form of order sought

—	annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2008 (Appeal Case R 1332/2005-4); and

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing an Easter bunny made of chocolate, for goods in Class 30 (Application No 3 844 446).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the trade mark applied for has the necessary distinctive character and its availability does not have to be preserved. Furthermore, the trade mark applied for demonstrates distinctiveness acquired through use for the purposes of Article 7(3) of Regulation No 40/94.

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

11.10.2008

Official Journal of the European Union

C 260/17

Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a reindeer made of chocolate)

(Case T-337/08)

(2008/C 260/32)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

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

Form of order sought

—	annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2008 (Appeal Case R 780/2005-4); and

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing a reindeer made of chocolate, for goods in Class 30 (Application No 4 098 489).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has the necessary distinctive character and its availability does not have to be preserved.

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

11.10.2008

Official Journal of the European Union

C 260/18

Action brought on 25 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a small bell with a red ribbon)

(Case T-346/08)

(2008/C 260/33)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

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

Form of order sought

—	annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 June 2008 (Appeal Case R 943/2007-4); and

—	order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing a small bell with a red ribbon, for goods in Class 30 (Application No 4 770 831).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has the necessary distinctive character and its availability does not have to be preserved.

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

11.10.2008

Official Journal of the European Union

C 260/19

Judgment of the Civil Service Tribunal (Full Court) of 24 June 2008 — Carlos Andres and Others v European Central Bank

(Case F-15/05) (1)

(Staff case - ECB staff - Remuneration - Consultation of the ECB staff committee - Method of calculation of annual salary adjustment - Enforcement of a judgment of a Community judicature - Retroactivity)

(2008/C 260/34)

Language of the case: French

Parties

Applicants: Carlos Andrés and Others (Frankfurt am Main, Germany) (represented by: G. Vandersanden and L. Levi, lawyers)

Defendant: European Central Bank (represented by: C. Zilioli and K. Sugar, Agents, assisted by B. Wägenbaur, lawyer)

Re:

First, application for annulment of the applicants' salary slips for the month of July 2004, in so far as they contain an salary increase set in accordance with an allegedly unlawful method of annual salary adjustment and that increase does not have retroactive effect with regard to the years 2001, 2002 and 2003, and, secondly, an application for damages.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders each party to bear its own costs.

(1) OJ C 132, 28.5.2005, p. 32 (Case initially registered before the Court of First Instance of the European Communities under number T-131/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).

11.10.2008

Official Journal of the European Union

C 260/19

Judgment of the Civil Service Tribunal (Third Chamber) of 10 July 2008 — Cathy Sapara v Eurojust

(Case F-61/06) (1)

(Staff cases - Members of the temporary staff - Recruitment - Probationary period - Extension of probationary period - Dismissal at the end of the probationary period - Obligation to state the reasons on which the decision is based - Rights of the defence - Manifest error of assessment - Psychological harassment)

(2008/C 260/35)

Language of the case: English

Parties

Applicant: Cathy Sapara (The Hague, Netherlands) (represented by: G. Vandersanden and C. Ronzi, lawyers)

Defendant: Eurojust (represented by: L. Defalque, lawyer)

Re:

Staff case — First, annulment of the decision by EUROJUST of 6 July 2005 terminating her applicant's temporary agent contract at the end of her probationary period and, secondly, a claim for damages.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action.

2.	Orders each party to bear its own costs.

(1) OJ C 165, 15.7.2006, p. 35.

11.10.2008

Official Journal of the European Union

C 260/20

Judgment of the Civil Service Tribunal (Third Chamber) of 24 June 2008 — Agim Islamaj v Commission

(Case F-84/07) (1)

(Staff case - Officials - Former members of the temporary staff paid from research appropriations - Promotion - Cancellation of points from the ‘rucksack’ - Transfer of an official from the research part to the administration part of the general budget)

(2008/C 260/36)

Language of the case: French

Parties

Applicant: Agim Islamaj (Grimbergen, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and L. Lozano Palacios, then by C. Berardis-Kayser and K. Herrmann, acting as Agents)

Re:

Application for annulment of the Commission's decision to cancel the 38,5 points from the applicant's ‘rucksack’ which he accumulated as a member of the temporary staff — Application for a declaration that Article 2 of the Commission Decision on detailed rules governing the promotion procedure for officials paid from research appropriations in the general budget is unlawful.

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders Mr Islamaj to bear two thirds of his own costs;

3.	Orders the Commission of the European Communities to pay, in addition to its own costs, one third of Mr Islamaj's costs.

(1) OJ C 235, 6.10.2007, p. 33.

11.10.2008

Official Journal of the European Union

C 260/20

Order of the Civil Service Tribunal (First Chamber) of 15 July 2008 — Pouzol v European Court of Auditors

(Case F-28/08) (1)

(Staff - Officials - Pensions - Transfer of pension rights acquired before entry into the Communities' service - Confirmatory decisions - Inadmissibility)

(2008/C 260/37)

Language of the case: French

Parties

Applicant: Michel Pouzol (Combaillaux, France) (represented by: D. Grisay, I. Andoulsi and D. Piccininno, lawyers)

Defendant: European Court of Auditors (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, acting as Agents)

Re:

Annulment of the Court of Auditors' decision of 29 November 2007 and the proposals made by it to the applicant on 10 May 2007 concerning the transfer of his pension rights acquired in France — Claim for damages

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Mr Pouzol is ordered to pay the costs.

(1) OJ C 116, 9.5.2008, p. 35.

11.10.2008

Official Journal of the European Union

C 260/21

Order of the President of the Civil Service Tribunal of 3 July 2008 — Plasa v Commission

(Case F-52/08 R)

(Staff case - Application for interim measures - Application for the suspension of operation of a decision to reassign - Urgency - None)

(2008/C 260/38)

Language of the case: French

Parties

Applicant: Wolfgang Plasa (Algiers, Algeria) (represented by: G. Vandersanden, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and B. Eggers, Agents)

Re:

Application for the suspension of operation of the decision of 8 May 2008 by which the Commission of the European Communities reassigns the applicant to Brussels (Belgium) from 1 August 2008.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

		ISSN 1725-2423
Official Journal of the European Union		C 260

English edition	Information and Notices	Volume 51 11 October 2008

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2008/C 260/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 247, 27.9.2008	1

	Court of First Instance
2008/C 260/02	Assignment of Mr O'Higgins to Chambers	2

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2008/C 260/03	Case C-215/06: Judgment of the Court (Second Chamber) of 3 July 2008 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — No assessment of the environmental effects of projects within the scope of Directive 85/337/EEC — Regularisation after the event)	3

2008/C 260/04	Case C-25/07: Judgment of the Court (First Chamber) of 10 July 2008 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland)) — Alicja Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu (VAT — Directives 67/227/EEC and 77/388/EEC — National legislation determining conditions for repayment of excess VAT — Principles of tax neutrality and proportionality — Special derogating measures)	3

2008/C 260/05	Case C-296/08 PPU: Judgment of the Court (Third Chamber) of 12 August 2008 (reference for a preliminary ruling from the Cour d'appel de Montpellier — France) — Criminal proceedings of extradition v Ignacio Pedro Santesteban Goicoechea (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — Articles 31 and 32 — European arrest warrant and the surrender procedures between Member States — Possibility for the State executing an extradition request to apply a convention adopted before 1 January 2004 but applicable in that State from a later date)	4

2008/C 260/06	Case C-281/08 P: Appeal brought on 27 June 2008 by Landtag Schleswig-Holstein against the order lodged on 3 April 2008 by the Court of First Instance (Second Chamber) in Case T-236/06, Landtag Schleswig-Holstein v Commission of the European Communities	5

2008/C 260/07	Case C-311/08: Reference for a preliminary ruling from the Tribunal de Première Instance de Mons (Belgium) lodged on 14 July 2008 — Societe De Gestion Industrielle (SGI) v Belgian State	5

2008/C 260/08	Case C-315/08: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 July 2008 — Angelo Grisoli v Regione Lombardia and Comune di Roccafranca	6

2008/C 260/09	Case C-316/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 15 July 2008 — Latex Srl v Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze	6

2008/C 260/10	Case C-336/08: Reference for a preliminary ruling from the Landessozialgericht Berlin-Brandenburg (Germany) lodged on 18 July 2008 — Christel Reinke v AOK Berlin	7

2008/C 260/11	Case C-338/08: Reference for a preliminary ruling from the Commissione Tributaria Regionale (Italy) lodged on 23 July 2008 — P. FERRERO e C. Spa v Agenzia Entrate — Ufficio di Alba	7

2008/C 260/12	Case C-339/08: Reference for a preliminary ruling from the Commissione Tributaria Regionale (Italy) lodged on 23 July 2008 — General Beverage Europe B.V. v Agenzia delle Entrate — Ufficio di Alba	7

2008/C 260/13	Case C-340/08: Reference for a preliminary ruling from House of Lords (United Kingdom) lodged on 23 July 2008 — The Queen (on the application of M) (FC) v Her Majesty's Treasury and two other actions	8

2008/C 260/14	Case C-341/08: Reference for a preliminary ruling from the Sozialgericht Dortmund (Germany) lodged on 24 July 2008 — Dr Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe	8

2008/C 260/15	Case C-345/08: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 28 July 2008 — Krzysztof Pesla v Justizministerium Mecklenburg-Vorpommern	9

2008/C 260/16	Case C-346/08: Action brought on 25 July 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland	9

2008/C 260/17	Case C-348/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia Murcia (Spain) lodged on 30 July 2008 — Aurelio Choque Cabrera v Delegación del Gobierno en Murcia	10

2008/C 260/18	Case C-355/08 P: Appeal brought on 30 July 2008 by WWF-UK Ltd against the order of the Court of First Instance (Eighth Chamber) delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v Council of the European Union	10

2008/C 260/19	Case C-358/08: Reference for a preliminary ruling from House of Lords (United Kingdom) lodged on 5 August 2008 — Aventis Pasteur SA v OB (by his mother and litigation friend) (FC)	11

2008/C 260/20	Case C-364/08: Reference for a preliminary ruling from the Tribunal de Première Instance d'Arlon (Belgium) lodged on 7 August 2008 — Marc Vandermeir v État Belge — SPF Finances	11

2008/C 260/21	Case C-367/08: Action brought on 11 August 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland	11

2008/C 260/22	Case C-374/08: Action brought on 13 August 2008 — Commission of the European Communities v Republic of Hungary	12

	Court of First Instance
2008/C 260/23	Case T-246/08 R: Order of the President of the Court of First Instance of 27 August 2008 — Melli Bank v Council (Applications for interim measures — Regulation (EC) No 423/2007 — Restrictive measures against the Islamic Republic of Iran — Council decision — Measure to freeze funds and economic resources — Application for suspension of operation of a measure — No urgency — Absence of serious and irreparable damage)	13

2008/C 260/24	Case T-271/08 P: Appeal brought on 8 July 2008 by Stanislava Boudova and Others against the order of the Civil Service Tribunal delivered on 21 April 2008 in Case F-78/07, Boudova and Others v Commission	13

2008/C 260/25	Case T-280/08: Action brought on 18 July 2008 — Perry v Commission	14

2008/C 260/26	Case T-303/08: Action brought on 30 July 2008 — Tresplain Investments v OHIM — Hoo Hing (Golden Elephant Brand)	14

2008/C 260/27	Case T-307/08: Action brought on 7 August 2008 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living)	15

2008/C 260/28	Case T-308/08: Action brought on 5 August 2008 — Parfums Christian Dior v OHIM — Consolidated Artists (MANGO adorably)	15

2008/C 260/29	Case T-309/08: Action brought on 4 August 2008 — G-Star Raw Denim v OHIM — ESGW Holdings (G Stor)	16

2008/C 260/30	Case T-331/08: Action brought on 11 August 2008 — REWE-Zentral v OHIM — Grupo Corporativo Teype (Solfrutta)	16

2008/C 260/31	Case T-336/08: Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of an Easter bunny made of chocolate)	17

2008/C 260/32	Case T-337/08: Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a reindeer made of chocolate)	17

2008/C 260/33	Case T-346/08: Action brought on 25 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a small bell with a red ribbon)	18

	European Union Civil Service Tribunal
2008/C 260/34	Case F-15/05: Judgment of the Civil Service Tribunal (Full Court) of 24 June 2008 — Carlos Andres and Others v European Central Bank (Staff case — ECB staff — Remuneration — Consultation of the ECB staff committee — Method of calculation of annual salary adjustment — Enforcement of a judgment of a Community judicature — Retroactivity)	19

2008/C 260/35	Case F-61/06: Judgment of the Civil Service Tribunal (Third Chamber) of 10 July 2008 — Cathy Sapara v Eurojust (Staff cases — Members of the temporary staff — Recruitment — Probationary period — Extension of probationary period — Dismissal at the end of the probationary period — Obligation to state the reasons on which the decision is based — Rights of the defence — Manifest error of assessment — Psychological harassment)	19

2008/C 260/36	Case F-84/07: Judgment of the Civil Service Tribunal (Third Chamber) of 24 June 2008 — Agim Islamaj v Commission (Staff case — Officials — Former members of the temporary staff paid from research appropriations — Promotion — Cancellation of points from the rucksack — Transfer of an official from the research part to the administration part of the general budget)	20

2008/C 260/37	Case F-28/08: Order of the Civil Service Tribunal (First Chamber) of 15 July 2008 — Pouzol v European Court of Auditors (Staff — Officials — Pensions — Transfer of pension rights acquired before entry into the Communities' service — Confirmatory decisions — Inadmissibility)	20

2008/C 260/38	Case F-52/08 R: Order of the President of the Civil Service Tribunal of 3 July 2008 — Plasa v Commission (Staff case — Application for interim measures — Application for the suspension of operation of a decision to reassign — Urgency — None)	21