ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 238/32

Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

(Case T-312/11)

2011/C 238/53

Language in which the application was lodged: German

Parties

Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

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

Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BYK-Cera BV

Community trade mark concerned: the word mark ‘CERATIX’ for goods in Class 1 — application No 6 358 832

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

Mark or sign cited in opposition: the national word mark ‘CERATOFIX’ for goods in Class 1

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:

— Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;

— Did not take account of promotional measures as ‘genuine use’;

— Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;
EN Official Journal of the European Union C 252/40

Action brought on 30 June 2011 — Ecologistas en Acción-CODA v Commission

(Case T-341/11)

2011/C 252/89

Language of the case: Spanish

Parties

Applicant: Ecologistas en Acción-CODA (Madrid, Spain) (represented by: J Doreste Harnández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul, for failure to reply within the time limit prescribed, the rejection decision of the Secretary General of the European Commission refusing the applicant access to the requested documents in proceedings GESTDEM 2011/6;

— recognise the right of ECOLOGISTAS EN ACCION to receive the requested documents which they were unduly refused by the Commission, that is to say: (a) the summary by the Spanish Ministry of Environment of the information submitted to the European Commission concerning the environmental assessment of the construction of the Grandilla Port, transmitted to the permanent Representation of Spain to the European Union on 4 November 2005, (b) the explanatory note, complementary information by Gobierno de Canarias, November 2005, (c) the alternative analysis concerning the location of the Grandilla Port by Gobierno de Canarias, July 2005; and

— order the defendant to pay the costs.

Pleas in law and main arguments

At the origin of this action is a request for information of an environmental nature which was implicitly rejected by the European Commission.

The information which was refused consists of 3 documents submitted to the European Commission by the Spanish authorities for the Commission to give an opinion, pursuant to Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), on the construction of a port in Granadilla (Tenerife, Spain).

In support of its action, the applicant raises two pleas in law.

1. Its first plea in law in based on an infringement of 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). — The applicant claims in that respect that the defendant failed to inform EOLOGISTAS EN ACCIÓN in writing of its grounds for refusing access to the 3 requested documents and left the decision on whether to grant the applicant access to that information to the Spanish State, even though none of those documents falls within the exceptions referred to in Article 4(1),(2) and (3) of Regulation No 1049/2001.
EN Official Journal of the European Union C 252/42

Action brought on 7 July 2011 — Gollnisch v Parliament

(Case T-346/11)

2011/C 252/92

Language of the case: French

Parties

Applicant: Bruno Gollnisch (Limonest, France) (represented by: G. Dubois, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

— annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0155/2011;

— award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage;

— award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action.

Pleas in law and main arguments

The applicant seeks, first, the annulment of the decision of the European Parliament of 10 May 2011 to adopt the report of the Committee on Legal Affairs (A7-0155/2011) and to reject the request for the defence of immunity and privileges of Bruno Gollnisch (2010/2284(IMM)) and, second, compensation for the non-material damage that it allegedly suffered in consequence of the adoption of the contested decision.

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

1. First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965.

2. Second plea, concerning the necessary application in the present case of Article 9 of the Protocol.

3. Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament.

4. Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations.

5. Fifth plea, alleging breach of the independence of a Member.

6. Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member.
2.

Second plea in law: breach of Article 1(b) of Regulation No 659/1999, (1) Article 107 TFEU and Article 108 TFEU — Manifest error of appraisal in the classification as ‘new’ aid The Commission’s patent error of assessment lies in the fact that the Commission failed to have regard for the fact that State liability for pension obligations — if the conditions for a finding that there is aid are at all met — can relate only to existing aid. The ongoing liability of the Federal authorities for the pension obligations results from the German Grundgesetz (Basic Law), and thus already existed when the Treaties entered into force and has since then undergone no essential alteration. Furthermore, the Commission is bound by the declaration in Case T-266/02 Deutsche Post v Commission [2008] ECR II-1233 that, with regard to pension regulation, it denied that there was precondition that there must be an aid-related ‘advantage’ already in its decision of 19 June 2002, which is equivalent to a negative certification under the law relating to aid.
EN Official Journal of the European Union C 269/54

Action brought on 11 July 2011 — Monier Roofing Components v OHIM (CLIMA COMFORT)

(Case T-371/11)

2011/C 269/119

Language of the case: German

Parties

Applicant: Monier Roofing Components GmbH (Oberursel, Germany) (represented by F. Ekey, lawyer)

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

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 April 2011 in Case R 2026/2010-1;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘CLIMA COMFORT’ for goods in class 17 — application No 9175324.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and Articles 75 and 76 of Regulation No 207/2009 in so far as (i) the Board of Appeal proceeded on the basis of erroneous physical findings, without hearing the applicant in that respect; (ii) the Board of Appeal was under a duty to establish the facts of its own motion; and (iii) the Board of Appeal erred in its assessment of the quality and intended purpose of the goods in question and in its findings as to the significance of the sign ‘CLIMA COMFORT’ in relation to the goods in question.
EN Official Journal of the European Union C 282/37

Action brought on 29 July 2011 — Altadis v Commission

(Case T-400/11)

2011/C 282/72

Language of the case: Spanish

Parties

Applicant: Altadis, SA (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero, and M. Muñoz de Juan, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— admit and uphold the request for evidence;

— admit and uphold the pleas for annulment contained in the application;

— annul Article 1(1) of the contested decision in so far as it declares that Article 12(5) of the Texto Refundido de la Ley del Impuesto sobre Sociedades (‘TRLIS’) (consolidated text of the Law on Corporation Tax) contains elements of State aid when it applies to acquisitions of shareholdings entailing acquisition of control;

— alternatively, annul Article 4 of the contested decision in so far as it makes the recovery order applicable to transactions completed prior to the publication in the Official Journal of the European Union of the final decision which is the subject-matter of this action;

— alternatively, annul Article 1(1), and in the further alternative Article 4, of the contested decision in so far as they relate to transactions in Morocco;

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

This action is brought against Commission Decision C(2010) 9566 of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions.

The pleas in law and main arguments are those already raised in Case T-399/11 Banco de Santander and Santusa Holding v Commission.
EN Official Journal of the European Union C 282/28

Action brought on 4 July 2011 — Lyder Enterprises v CPVO Liner Plants NZ (1993) (Southern Splendour)

(Case T-367/11)

2011/C 282/57

Language in which the application was lodged: English

Parties

Applicant: Lyder Enterprises Ltd (Auckland, New Zealand) (represented by: G. Pickering, Solicitor)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal: Liner Plants NZ (1993) Ltd (Waitakere, New Zealand)

Form of order sought

— Set aside and annul the decision of the Board of Appeal of the Community Plant Variety Office of 18 February 2011 in case A007/2010; and

— Stay the proceedings until the final decision of the High Court of New Zealand in case No CIV:2011:404:2969 is taken.

Pleas in law and main arguments

Applicant for Community plant variety right: The applicant

Community plant variety right concerned: Southern Splendour — Community plant variety right application No 2006/1888

Objector to the Community plant variety right application: The other party to the proceedings before the Board of Appeal

Grounds of the objection: The objection was based on the contention that the applicant was not the person who bred, or discovered and developed the variety, or his successor in title

Decision of the Committee of the CPVO: Refused the application No 2006/1888 for the variety ‘Southern Splendour’ (Decision No R972)

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of the audi alteram partum rule, lack of competence, failure to understand the fundamental rules of natural justice and infringement of an essential procedural requirement, as the Board of Appeal decided that the evidence contained in the applicant’s letters was not acceptable as it was not in affidavit format.
—

set aside the judgment under appeal and give a ruling on the substance of this case, in so far as the Civil Service Tribunal (a) annulled Europol’s decision of 4 February 2009 whereby the Director of Europol terminated Mr Kalmár’s fixed-term contract, the decision of 24 February 2009 whereby the Director of Europol relieved him of the duty to serve his period of notice, and the decision of 18 July 2009 rejecting his complaint; (b) ordered Europol to pay damages of EUR 5 000 to Mr Kalmár; and (c) ordered Europol to pay all the costs;
—

Declare that entry No. 19 of Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), as amended by Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26), is null and void;
EN Official Journal of the European Union C 298/27

Action brought on 17 August 2011 — Valeo Vision v Commission

(Case T-457/11)

2011/C 298/51

Language of the case: French

Parties

Applicant: Valeo Vision (Bobigny, France) (represented by: R. Ledru, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul in its entirety Commission Implementing Regulation (EU) No 603/2011 of 20 June 2011 concerning the classification of certain goods in the Combined Nomenclature;

— Order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging infringement of the rules of classification in the Combined Nomenclature in so far as the applicant considers that the general rules for interpretation Nos 1, 3(a), 3(b), 3(c) and 6; note No 2(a) of Section XVI; and note No 8 of Chapter 85 of the Combined Nomenclature mean, first, that an ‘LED electronic card’ should be classified under heading 8541 or, in the alternative, under heading 8542 of the Combined Nomenclature and, secondly, that its classification under heading 8512 should be precluded. The applicant disputes, first, the Commission’s statement of reasons and classification and submits, secondly, that the statement of the reasons on which the classification regulation is based is unfounded and has no legal basis.
EN Official Journal of the European Union C 298/22

Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED)

(Case T-435/11)

2011/C 298/41

Language of the case: English

Parties

Applicant: Universal Display Corp. (New Jersey, USA) (represented by: A. Poulter and C. Lehr, Solicitors)

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

Form of order sought

— Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2011 in case R 215/2011-2; and

— Accept the Community trade mark application and allow it to proceed to publication;

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘UniversalPHOLED’ for goods in class 1 — Community trade mark application No W01015224

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal erred in its analysis of the registrability of the Community trade mark application ‘UniversalPHOLED’.
EN Official Journal of the European Union C 311/46

Appeal brought on 5 September 2011 by Luigi Marcuccio against the order of the Civil Service Tribunal of 20 June 2011 in Case F-67/10 Marcuccio v Commission

(Case T-475/11 P)

2011/C 311/85

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

The appellant requests that the Court grant the present appeal, with all the legal consequences thus arising.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal of 20 June 2011, which dismissed as inadmissible an action seeking an order that the Commission pay compensation for the damage purportedly suffered as a result of the Commission’s refusal to reimburse the appellant in respect of the recoverable costs allegedly incurred in the case which gave rise to the judgment delivered by the Tribunal on 4 November 2008 in Case F-41/06 Marcuccio v Commission.

The appellant relies on three grounds of appeal.

1. The rejection, on purported grounds of inadmissibility, of the ‘third head of claim’ (sic between paragraphs 13 and 14 of the order under appeal) made by the appellant in the application at first instance, and the ‘fourth head of claim’ (sic between paragraphs 19 and 20 of the order under appeal) made by the appellant in the application at first instance, was unlawful, including on the grounds of (a) incorrect and unreasonable interpretation and application of the notion of ‘request’ within the meaning of Article 90 of the Staff Regulations of Officials of the European Union and Article 91 of those rules and illogical and unreasoned failure to have regard to the relevant case-law; (b) absolute failure to state reasons, distortion and misrepresentation of the facts and irrelevant, self-evident, arbitrary, illogical, irrational and unreasonable reasoning;

2. Distortion and misrepresentation of the facts and absolute failure to carry out any preliminary investigations;
4.

The fourth plea in law, alleging breach of the principle of the protection of legitimate expectations, given that the transitional scheme arising from the application of that principle ought to be applied until the date on which the Decision was published in the OJEU, i.e., 21 May 2011. — The Decision on extra-EU acquisitions was maintained pending resolution, it being expressly stated in the first Decision on intra-EU acquisitions that there may, outside the EU, persist legal barriers to cross-border business combinations that would place such transactions in a different situation of law and fact from that of intra-Community transactions. The first Decision therefore led certain undertakings to entertain legitimate expectations regarding the Spanish legislation, especially in the light of the knowledge that, in the vast majority of jurisdictions, it is in fact impossible to effect cross-border business combinations outside the European Union.
2.

Second plea, divided into four parts, alleging errors of fact and law in so far as the Commission held there to be an implicit unlimited State guarantee in favour of the IFP. The applicant submits that: — an examination of French law does not show there to be a principle that the debts of the IFP are guaranteed by the State; — the fact that ordinary law procedures regarding receivership and insolvency are not applicable to the IFP does not mean that the creditors of such a body are in a more favourable situation than the creditors of an undertaking subject to commercial law; — the mechanisms for putting the State’s liability in issue cannot be likened to the mechanism of an unlimited guarantee; — the fact that certain debts connected with the public-service obligations of the IFP may be upheld is not related to the body’s status.
EN Official Journal of the European Union C 331/27

Action brought on 16 September 2011 — Missir Mamachi di Lusignano and Others v Commission

(Case T-494/11)

2011/C 331/53

Language of the case: Italian

Parties

Applicants: Livo Missir Mamachi di Lusignano (Kerkhove-Avelgem, Belgium), Anne Jeanne Cécile Magdalena Maria Sintobin (Brussels, Belgium), Stefano Missir Mamachi di Lusignano (Shanghai, China), Maria Letizia Missir Mamachi di Lusignano (Brussels, Belgium), Alessandro Missir Mamachi di Lusignano (heirs) (Rabat, Morocco) (represented by: F. Di Gianni, R. Antonimi and G. Coppo, lawyers)

Defendant: European Commission

Form of order sought

— Order the Commission to pay compensation for the non-material damage suffered by the applicants as a result of the murder of Alessandro Missir Mamachi di Lusignano and his wife, Ariane Lagasse de Locht;

— Order the Commission to pay compensatory interest and late payment interest accrued,

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

Pleas in law and main arguments

By the first plea in law, the Court is requested to order the Commission to pay compensation for the non-material damage unjustly suffered by the applicants as a result of the murder of Alessandro Missir Mamachi di Lusignano, former Commission official, and his wife, Ariane Lagasse de Locht. The applicants submit that the European Union has incurred non-contractual liability because the Commission negligently failed to ensure that the apartment made available to the murdered official and his family was equipped with appropriate and effective security devices suitable for the purposes of ensuring their safety. In support of their requests, the applicants rely on the conclusions reached in the judgment of the Civil Service Tribunal of 12 May 2011 in Case F-50/09.

In the alternative, on account of the totally exceptional nature of the case, the applicants submit that the Commission is liable for the damage caused on the grounds of unlawful conduct.
EN Official Journal of the European Union C 355/21

Action brought on 26 September 2011 — Aldi v OHIM — Dialcos (dialdi)

(Case T-505/11)

2011/C 355/38

Language in which the application was lodged: German

Parties

Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: N. Lützenrath, U. Rademacher, L, Kolks and 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: Dialcos SpA (Due Carrare, Italy)

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 5 July 2011 in Case R 1097/2010-2;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Dialcos SpA

Community trade mark concerned: Figurative mark containing the word element ‘dialdi’ for goods in Classes 29 and 30.

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

Mark or sign cited in opposition: Word mark ‘ALDI’ for goods and services in Classes 3, 4, 7, 9, 16, 24, 25, 29, 30, 31, 32, 33, 34 and 36.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is a likelihood of confusion between the marks at issue.
2.

Second plea in law, alleging that the defendant has infringed Article 108(2) TFEU and Article 4(4) of Council Regulation No 659/1999 (1), in so far as it has failed to initiate the procedure provided for in those provisions, in relation to the aid covered by the first part of the contested Decision, despite the existence of, at a minimum, serious doubts as to the compatibility of the exemption of transfer and transit traffic from the Irish Air Travel Tax with the common market, and has therefore violated the applicant’s procedural rights under Article 108(2) TFEU and Article 6(1) of Council Regulation No 659/1999.