ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 297/33

Action brought on 16 October 2009 — Poslovni Sistem Mercator v OHIM — Mercator Multihull (MERCATOR STUDIOS)

(Case T-417/09)

2009/C 297/50

Language in which the application was lodged: English

Parties

Applicants: Poslovni Sistem Mercator, d.d. (Ljubljana, Slovenia) (represented by: M. Curell Aguila and J. Güell Serra, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mercator Multihull, Inc. (Vancouver, Canada)

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 16 July 2009 in case R 1031/2008-1;

— 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 word mark “MERCATOR STUDIOS”, for goods in class 42

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

Mark or sign cited: Slovenian trade mark registrations of the figurative mark “Mercator” registered for services in classes 35, 36, 39, 41 and 42, and for goods in classes 1-6, 8-11, 13-34; Slovenian trade mark registration of the figurative marks “Mercator Slovenska Košarica” registered for goods and services in classes 1-6, 8-11, 13-34, 39, 41, 43 and 44; International registrations of the mark “Mercator”, for goods in classes 1-6, 8-11, 13, 14, 16-18, 20-33, and for services in classes 36, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 40/94 (which became Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009) as the Board of Appeal failed to make a global analysis of the relevant factors and instead rejected the opposition on the basis that the services are different, and incorrectly assessed the ground of opposition based on the latter legal provision.
EN Official Journal of the European Union C 297/22

Action brought on 25 September 2009 — RWE Transgas v Commission

(Case T-381/09)

2009/C 297/33

Language of the case: German

Parties

Applicant: RWE Transgas a.s. (Prague, Czech Republic) (represented by: W. Deselaers, D. Seeliger and S. Einhaus, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Declare invalid the third sentence of Point 89(a) of Commission Decision C(2009) 4694 of 12 June 2009, insofar as it finds that the applicant and Gazprom — to be considered for this purpose jointly — may together account for no more than 50 % of capacity as long as substantial long-term gas supply agreements exist between them;

— in the alternative, annul the decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an importer of gas into the Czech Republic, has brought an action against the letter of 12 June 2009 sent by the Commission to the German energy regulator, the Bundesnetzagentur (Federal Network Agency) in which the Commission asks the Bundesnetzagentur to amend certain aspects of the exemption it has granted, pursuant to Article 22 of Directive 2003/55/EC, (1) for the gas pipeline project Ostseepipeline-Anbindungsleitung (Baltic Sea Pipeline Link) (‘OPAL’). The applicant complains that one of the Commission’s conditions would have the effect of restricting or, as the case may be, preventing the applicant’s access to OPAL’s transport/release capacities in the Czech Republic.

In support of its action, the applicant claims, first, that the defendant infringed its right to a fair hearing by denying it any opportunity to comment on the condition imposing a burden on it before it was adopted.

Second, the applicant contends that the defendant infringed the applicant’s right of access to documents, by denying it any access to the file of the proceedings.

Finally, the applicant complains that the defendant misapplied Article 22(4) of Directive 2003/55/EC and the principle of proportionality, the principle of equal treatment and the duty to state reasons (Article 253 EC).

(1) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).
EN Official Journal of the European Union C 312/31

Action brought on 6 October 2009 — HSE v Commission

(Case T-399/09)

2009/C 312/52

Language of the case: English

Parties

Applicant: Holding Slovenske elektrarne d.o.o. (HSE) (Ljubljana, Slovenia) (represented by: F. Urlesberger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul Article 1 (g) of the contested decision in so far as it holds the applicant responsible of an infringement of Article 81 EC and Article 53 EEA Agreement;

— annul Article 2 (i) of the contested decision;

— in eventu, reduce the fine imposed upon the applicant in Article 2 (i) of the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment of Commission decision of 22 July 2009 (Case No COMP/39.396 — Calcium and magnesium reagents for the steel and gas industries) in so far as the Commission found the applicant liable of a single and continuous infringement of Article 81 EC and Article 53 EEA through market sharing, quotas, customer allocation, price fixing and exchanges of sensitive commercial information between suppliers of calcium carbide and magnesium granulates. Alternatively, the applicant seeks the reduction of the fine imposed upon it.

In support of its claims the applicant submits that the Commission infringed Article 81 EC and Regulation 1/2003 by committing the following errors in law:

First, the applicant claims that the Commission may not impute the conduct of TDR Metalurgija d.d. (TDR) to the applicant because HSE and TDR have never formed a single economic entity. In the absence of a rebuttable presumption of liability of the applicant (such presumption would have applied only if HSE had held 100 % in TDR), the Commission has failed to prove that HSE actually exercised decisive control over TDR.

Second, the applicant argues that the Commission erroneously applied to all parties an increase of the basic amount of the fine by 17 % for deterrence purposes. In the applicant’s opinion, the Commission should have taken into account that a deterrence factor is not justifiable in relation to HSE since the Commission decided to abstain from fining the direct perpetrator TDR (from whom a deterrence amount may have been appropriate) and the applicant was not directly involved in anticompetitive conduct.
EN Official Journal of the European Union C 297/29

Action brought on 6 October 2009 — Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg v OHIM (Figurative mark representing a coat of arms)

(Case T-397/09)

2009/C 297/42

Language in which the application was lodged: German

Parties

Applicant: Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg (Hanover, Germany) (represented by R. Stötzel and J. Hilger, lawyers)

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

Forms of order sought

— Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 1361/2008-1 concerning the application for Community trade mark No 5 627 245 and admission of the application for Community trade mark No 5 627 245 for publication in the Community Trade Marks Bulletin;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The colour figurative mark representing a coat of arms for goods and services in Classes 16, 25, 28, 2, 33, 35, 39, 41 and 43 (Application No 5 627 245)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Inter alia, infringement of Article 7(1)(h) of Regulation No 207/2009 (1), since the mark applied for is neither identical with the opposing royal emblem nor a heraldic immitation thereof.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 11/36

Action brought on 13 November 2009 — Slovak Telekom v Commission

(Case T-458/09)

2010/C 11/67

Language of the case: English

Parties

Applicant: Slovak Telekom a.s. (Bratislava, Slovak Republic) (represented by: M. Maier, L. Kjølbye and D. Geradin, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of Commission decision C(2009) 6840 of 3 September 2009 ordering it, in accordance with Articles 18(3) and 24(1) of Council Regulation 1/2003 (1) to provide the information in the framework of the Case COMP/39523 — Slovak Telekom relating to a proceeding under Article 82 EC and imposing the periodic penalties in case of non compliance with the decision.

In support of its claims the applicant puts forward three pleas in law.

First, the applicant argues that the contested decision is in breach of Article 18(3) of Regulation 1/2003 regarding the information covering a period that predates the Slovak Republic’s accession to the EU. In the applicant’s opinion, prior to this date the Commission did not have power to apply the EC law to conduct engaged in within the territory of the Slovak Republic; as a consequence, it is not entitled to use its power of investigation enshrined in this article to obtain information pertaining to that same period.

Second, applicant claims that the contested decision infringes the principle of procedural fairness enshrined in Article 41(1) of the Charter of Fundamental Rights. The Commission’s investigation into the applicant’s conduct during a period where EC law was not applicable and it was under no obligation to comply with these rules may be prejudicial to the applicant.

Third, the applicant contends that the contested decision infringes the principle of proportionality as reflected in Article 18(3) of Regulation 1/2003, according to which the Commission is empowered to require undertakings to provide all necessary information. In this regard, the applicant claims that the Commission failed to establish the required link between the requested pre-accession information and the allegedly illegal conduct after 1 May 2004. As a result, in the applicant's opinion, information or documents pertaining to the pre-accession period are not necessary in order to enable the Commission to assess whether the applicant’s post-accession conduct complies with the EC law.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; OJ L 1, p. 1
EN Official Journal of the European Union C 312/41

Action brought on 22 October 2009 — SE.RI.FO v Commission and Education, Audiovisual and Culture Executive Agency

(Case T-438/09)

2009/C 312/68

Language of the case: Italian

Parties

Applicant: Serifo Srl (Naples, Italy) (represented by: R. de Lorenzo, P. Kivel Mazuy and G. Ruberto, lawyers)

Defendants: Commission of the European Communities and Education, Audiovisual and Culture Executive Agency (‘EACEA’)

Form of order sought

— Annul the measure, the date and particulars of which are not known, by which, in the context of the Lifelong Learning Programme, the EACEA approved the list of projects selected for Community co-financing from the transversal programme ‘KA3 ICT Multilateral Projects’, and the reserve list, in so far as the project ‘V-3DAS’ No 505690-2009-LLP-IT-KA3-KA3MP, submitted by Se.Ri.Fo s.r.l., was included in the reserve list instead of in the list of projects selected for funding.

— Annul the notice of 21 September 2009, received on 22 September 2009, by which the EACEA communicated to Se.Ri.Fo. s.r.l. the assessments of the ‘V-3DAS’ project issued by the experts external to the EACEA and the scores awarded.

Pleas in law and main arguments

The applicant took part in the Community Lifelong Learning Programme — Call for Proposals 2009, submitting to the EACEA the V-3DAS project in the context of the transversal programme Key Activity 3 ‘ICT’.

The assessment of the applications was undertaken by experts external to the Agency, in accordance with the Guide for Applicants 2009. After obtaining 30.5 points out of a maximum of 40 (76.3 % of the maximum score) — as compared with the 31 points necessary in order to be included in the list of projects selected for funding (77.5 % of the maximum score) — the project submitted by the applicant was included in the reserve list, which may be used for the award of additional grants if funds become available following withdrawal of approved projects or following an increase in the budget for the Programme.

In support of its claims, the applicant submits that the assessments of its project by EACEA’s external experts, and consequently the points awarded by them for each of the award criteria, are vitiated by the inadequate reasoning given, the misapplication of the assessment criteria and the inherently contradictory and illogical nature of the evaluations made. Those irregularities played a decisive role in the exclusion — by no more than 0.5 points — of the applicant’s project from the list of projects selected for funding.

In that connection, it should be pointed out that Article 109 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the financial regulation applicable to the general budget of the European Communities states, in relation to the award of grants, that ‘The award of grants shall be subject to the principles of transparency and equal treatment’.
EN Official Journal of the European Union C 24/65

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-475/09)

2010/C 24/114

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Itailia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 — R 500/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter Italia S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 934 147) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) in respect of services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition was upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 24/68

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER Cittá)

(Case T-482/09)

2010/C 24/121

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 — R 1047/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER Città’ (Application No 4 939 302) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) for services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 37/41

Action brought on 3 December 2009 — France v Commission

(Case T-485/09)

2010/C 37/57

Language of the case: French

Parties

Applicant: The French Republic (represented by: E. Belliard, G. de Bergues, B. Cabouat, and R. Loosli-Surrans, Agents)

Defendant: European Commission

Form of order sought

— Annul Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed;

— Order the Commission to pay the costs.

Pleas in law and main arguments

By its application, the French government requests the Court, under Article 263 of the TFEU, to annul Commission Decision 2009/726/EC of 24 September 2009 concerning interim protection measures taken by France as regards the introduction onto its territory of milk and milk products coming from a holding where a classical scrapie case is confirmed. (1)

The decision being challenged orders France to suspend the application of interim protection measures which it adopted following the publication of new scientific opinions about a risk of human exposure to classical scrapie due to the consumption of milk and milk products originating from infected herds of ovine and caprine animals in order to prohibit the introduction onto its territory, for the purposes of human consumption, of milk and milk products coming from a holding where a classical scrapie case is confirmed.

In support of its action, the applicant submits that the decision being challenged must be annulled on the grounds that it infringes the precautionary principle, as regards both risk assessment and risk management.

The applicant claims that the Commission infringed the precautionary principle at the risk assessment stage by ignoring the remaining scientific uncertainties over the risk of the transmission to humans of TSE other than BSE.

In the applicant’s opinion, the Commission also infringed the precautionary principle at the risk management stage by failing to adopt any measure in order to restrict the risk of human exposure to classical scrapie.

(1) OJ 2009 L 258, p. 27
EN Official Journal of the European Union C 24/60

Action brought on 19 November 2009 — Stelzer v Commission

(Case T-467/09)

2010/C 24/107

Language of the case: German

Parties

Applicant: Dierk Stelzer (Berlin, Germany) (represented by: F. Weiland, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the decisions in the form of refusals by the Directorate-General Environment of the Commission of 6 August 2009 and the Secretariat-General of the Commission of 29 October 2009 (correct date must be 29 September 2009);

— order the defendant to pay the applicant’s costs incurred out of court.

Pleas in law and main arguments

The applicant contests in particular the Commission decision dated 29 October 2009, by which his second application for inspection of the compliance study on the transposition of Directive 2003/35/EC (1) was partially rejected.

In support of its action the applicant claims that the reasons invoked by the defendant for the rejection of access to the document applied for, based on protection of the purpose of investigations (Article 4(2), third indent, of Regulation [EC] No 1049/2001 (2)) and on protection of the decision-making process (Article 4(3) of Regulation No 1049/2001) were erroneous. The applicant also claims that the request for partial access to the document applied for under Article 4(6) of Regulation No 1049/2001 was wrongly rejected. Furthermore there is an overwhelming public interest in the dissemination of the study in question. Finally the applicant complains that the defendant failed to comply with the obligation to state reasons.

(1) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).

(2) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 51/40

Appeal brought on 21 December 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 7 October 2009 in Case F-122/07, Marcuccio v Commission

(Case T-516/09 P)

2010/C 51/75

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— In any event, set aside in its entirety and without exception the order under appeal;

— declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever;

— allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance;

— order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings;

— in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 7 October 2009 in Case F-122/07. That order dismissed as partly manifestly inadmissible and partly manifestly unfounded an action seeking annulment of the Commission’s decision to reject the appellant’s request that an investigation be carried out in relation to certain events which occurred in 2001 and 2003 and an order that the Commission pay compensation for the damage suffered as a result.

In support of his claims, the appellant alleges that the order under appeal distorted and misrepresented the facts and misinterpreted and misapplied the obligation to give reasons for measures.