29.3.

2008

EN

Official Journal of the European Union

C 79/11

Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL (Case C-361/07) (1) (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Convention No 158 of the International Labour Organisation — European Social Charter — Dismissal of an employee without valid reason — Manifest lack of jurisdiction of the Court) (2008/C 79/19) Language of the case: French

Appeal brought on 25 July 2007 by Focus Magazin Verlag GmbH against the judgment of the Court of First Instance (Third Chamber) delivered on 16 May 2007 in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Intervener: Focus Magazin Verlag GmbH (Case C-344/07 P) (2008/C 79/20) Language of the case: German

Parties Appellant: Focus Magazin Verlag GmbH (represented by: M. Herrmann and B. Müller, lawyers)

Referring court Conseil de prud'hommes de Beauvais (France)

Other parties to the proceedings: 1. Office for Harmonisation in the Internal Market (Trade Marks and Designs) 2. Merant GmbH

Parties Applicant: Olivier Polier Defendant: Najar EURL Form of order sought — set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 16 May 2007 in Case T-491/04 and dismiss the action

Re: Reference for a preliminary ruling — Conseil de Prud'Hommes de Beauvais — Interpretation of the Charter of Fundamental Rights of the European Union (Articles 30 and 33), the European Social Charter (Articles 24 and 27) and Convention No 158 of the International Labour Organisation on termination of employment — Dismissal of an employee without valid reason — Whether national legislation is valid in the light of the abovementioned provisions

Pleas in law and main arguments 1. The judgment is based on an incorrect interpretation of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and thus on a serious infringement of the intervener's/appellant's rights. 2. The infringement is constituted by an incorrect and cursory assessment of the facts on which the decision is based and an extension of the scope of the expression ‘likelihood of confusion’ for the purposes of Article 8(1)(b) of Regulation No 40/94. 3. The Court of First Instance's interpretation that the conceptual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is not in accordance with the general principles governing the issue of likelihood of confusion. The concept can only be interpreted in that way if the grammatical rules of the German language are incorrectly applied. On the basis of that interpretation of the sign ‘MICRO FOCUS’ the Court arrived at the incorrect finding that only the figurative element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’ should be compared with the sign ‘FOCUS’ in respect of which registration is sought. Building on that interpretation, the Court then erred in law in finding that there was a

Operative part of the order The Court of Justice of the European Communities manifestly does not have jurisdiction to answer the questions posed by the Conseil de prud'hommes de Beauvais by decision of 9 July 2007.

(1) OJ C 269, 10.11.2007.

C 79/12

EN

Official Journal of the European Union

29.3.2008

likelihood of confusion. If the Court had considered the whole of the word/figurative sign ‘MICRO FOCUS’, it would have correctly interpreted Article 8(1)(b) of Regulation No 40/94.

2. If Question 1(a) is answered in the affirmative and Question 1(b) is answered in the negative: In legal proceedings between private individuals, must a national court disapply a statutory provision which is clearly incompatible with Community law, or is the legitimate expectation of persons subject to the law — that national laws which are in force will be applied — to be taken into account so that a national law is disapplied only after the Court of Justice has ruled on the provision at issue or on a substantially similar provision?

(1) OJ 1994 L 11, p. 1.

Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 13 December 2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG (Case C-555/07) (2008/C 79/21) Language of the case: German

(1) OJ L 303, p. 16.

Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria (Case C-564/07)

Referring court Landesarbeitsgericht Düsseldorf

(2008/C 79/22) Language of the case: German

Parties to the main proceedings Applicant: Seda Kücükdeveci Defendant: Swedex GmbH & Co. KG Parties Applicant: Commission of the European Communities (represented by: E. Traversa and H. Krämer, acting as Agents) Defendant: Republic of Austria

Questions referred 1. (a) Is a national provision which provides for the periods of notice on termination which employers are required to observe to be increased incrementally with the length of service, but which disregards periods of the employee's employment before the age of 25, incompatible with the Community law prohibition against discrimination on the ground of age, and specifically with primary Community law or with Council Directive 2000/78/EC of 27 November 2000 (1)? (b) Can the fact that employers are required to observe only a basic period of notice when terminating the employment of younger employees be justified on the grounds that employers are recognised as having a commercial interest in flexibility as regards staffing — an interest which would be adversely affected by longer periods of notice — and that younger employees are not recognised as having the protection available to older employees (in the form of longer notice periods) with respect to their employment status or arrangements, for example because, having regard to their age and/or their lesser social, family and private obligations they are assumed to have greater professional and personal flexibility and mobility?

Form of order sought — declare that the Republic of Austria has infringed its obligations under Article 49 EC, by — requiring all patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to first enrol in the special Austrian registers, insofar as registration is conditional on taking out professional liability insurance, — making patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria subject to disciplinary supervision by the Austrian authorities, even as regards sanctions for conduct other than the serious breach of professional duties, — making any provision of service by a patent lawyer lawfully established in another Member State wishing to provide services temporarily in Austria conditional on taking out professional liability insurance,

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