ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 49/32

Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless)

(Case T-662/11)

2012/C 49/58

Language in which the application was lodged: German

Parties

Applicant: Thomas Müller (Gütersloh, Germany) (represented by: J. Schmidt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Loncar, SL (Sabadell (Barcelona), 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 27 September 2011 in Case R 2508/2010-2;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Thomas Müller

Community trade mark concerned: Figurative mark containing the word element ‘Sunless’, for goods in Classes 6, 19, 22 and 24.

Proprietor of the mark or sign cited in the opposition proceedings: Loncar, SL

Mark or sign cited in opposition: Word marks ‘SUNLESS’ and ‘LONCAR-SUNLESS’ for goods in Classes 22, 23 and 24 and ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); raw fibrous textile materials.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.
First plea in law, alleging infringement of Article 107(1) TFEU: the deduction of losses is not an aid granted through State resources

With regard to this plea, the applicants submit inter alia, that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty does not confer a financial advantage, but rather maintains a company’s already existing financial position in the form of the carry forward of losses. The applicants therefore take the view that there is no financing through State resources.
EN Official Journal of the European Union C 58/13

Action brought on 22 December 2011 — FSL and Others v Commission

(Case T-655/11)

2012/C 58/25

Language of the case: English

Parties

Applicants: FSL Holdings (Antwerp, Belgium), Firma Léon Van Parys (Antwerp, Belgium) and Pacific Fruit Company Italy SpA (Rome, Italy) (represented by: P. Vlaemminck and C. Verdonck, lawyers)

Defendant: European Commission

Form of order sought

— Annul Articles 1 and 2 of the Decision of the Commission of 12 October 2011 rendered in Case COMP/39.482 — Exotic Fruits — Bananas;

— In subsidiary order, annul Article 2 of the contested decision insofar as it imposes a fine on the applicants of EUR 8 919 000 and to reduce the fine in line with the arguments raised by the applicants in the application before the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging breach of essential procedural requirements and the rights of defence, as: — Documents obtained solely for the purpose of a national tax investigation were used; — Documents from other files were used; and — The immunity applicant has been illegally steered.

2. Second plea in law, alleging misuse of powers by the defendant.

3. Third plea in law, alleging an incorrect assessment of evidence, as well as the inability of the evidence to support the finding of an infringement.

4. Fourth plea in law, alleging an infringement of Article 23(3) of Council Regulation (EC) No 1/2003 (1) and of the 2006 fining guidelines (2) due to a manifest incorrect assessment of the gravity and duration of the infringement, as well as of the mitigating circumstances, and a breach of the principle of non-discrimination in the calculation of the fine.

(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 2003 L 1, p. 1)

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)
—

Unless it is established that the European Parliament’s letter of 7 July 2008 contains a decision of the Petitions Committee relating to an earlier petition of the applicant, the content of which corresponds in full to the content of that petition, it may be assumed that there was, in the present case, satisfaction of the condition relating to breach by the European Parliament of essential procedural requirements (Rules of Procedure of the European Parliament) and that the European Parliament failed to issue an act to the applicant in response to the petition addressed to it;
1.

First plea in law, alleging infringement of Article 6(8) of Annex I to the general rules for implementing Article 43 of the European Union Staff Regulations, distortion of the file and infringement of the review of manifest error of assessment in the Civil Service Tribunal’s examination of the plea alleging failure by the reporting officer to take account of the opinion of the ad hoc committee.
—

order the Council to pay the applicant Loescher, as well as other officials and servants of the European Union, arrears in remuneration and pensions to which they are entitled from 1 July 2011 onwards, together with default interest from the date those arrears were due, at the rate laid down by the ECB for its main refinancing operations, increased by two percentage points;
EN Official Journal of the European Union C 80/24

Action brought on 25 January 2012 — Herbacin cosmetic v OHIM — Laboratoire Garnier (HERBA SHINE)

(Case T-34/12)

2012/C 80/41

Language in which the application was lodged: German

Parties

Applicant: Herbacin cosmetic GmbH (Wutha-Farnroda, Germany) (represented by: J. Eberhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Laboratoire Garnier et Cie (Paris, France)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2011 in Case R 2255/2010-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Laboratoire Garnier et Cie

Community trade mark concerned: the word mark ‘HERBA SHINE’ for goods in Class 3

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

Mark or sign cited in opposition: the national and Community word mark and international registration ‘HERBACIN’ for goods in Class 3

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was upheld

Pleas in law: Infringement of the first sentence of Article 42(2) of Regulation No 207/2009 in that, at the time of the first-instance opposition decision, an effective request for proof of use on the part of the applicant no longer existed; infringement of point (b) of the second sentence of Article 15(1) of Regulation No 207/2009 in that the Board of Appeal of OHIM erred in law in disregarding considerable export turnover under the opposing mark ‘HERBACIN’; and infringement of the first sentence of Article 15(1) of Regulation No 207/2009 in that the proof of use submitted as regards customers within the Community was incorrectly assessed.
1.

First plea in law, alleging incorrect assessment of the facts said to underlie the decision The applicant submits in this regard that the contested decision is factually incorrect. That is the case in particular with regard to the defendant’s assumption in point 48 of Annex I to the contested decision that the applicant is affiliated to the EU-designated undertaking Sakhte Turbopomp va Kompressor (SATAK) (a.k.a. Turbo Compressor Manufacturer, TCMFG). The applicant is neither directly nor indirectly involved through a holding company in proliferation-sensitive nuclear activities and/or the development of nuclear weapon delivery systems or other weapons systems. There are therefore no facts which would justify the defendant’s decision and the associated interference with the applicant’s rights fundamental guaranteed under the Charter of Fundamental Rights of the European Union (‘the Charter’). The applicant relies in this regard on interference with its freedom to conduct a business under Article 16 of the Charter and on the right to use and dispose of lawfully acquired property in the European Union under Article 17 of the Charter and the rights to equality and not to be discriminated against under Articles 20 and 21 of the Charter.
EN Official Journal of the European Union C 165/25

Action brought on 26 March 2012 — Ben Ali v Council

(Case T-133/12)

2012/C 165/43

Language of the case: French

Parties

Applicant: Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali (Saint-Étienne-du-Rouvray, France) (represented by: A. de Saint Remy, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

— adopt a measure of organisation of procedure, under Article 64 of the General Court’s Rules of Procedure, to ensure that the Commission discloses ‘all documents relating to the adoption’ of the contested regulation;

— annul the contested regulation in so far as it concerns the applicant;

— order the Council of the European Union to pay the applicant an overall sum of EUR 50 000 in compensation for all forms of damage;

— order the Council of the European Union to pay the applicant a sum of EUR 7 500 for legal expenses in support of the application, in accordance with Article 91 of the Rules of Procedure, as recoverable costs;

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

By his application, the applicant seeks (i) the annulment of Council Decision 2012/50/CFSP of 27 January 2012 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (1) and (ii) damages in respect of the loss which he considers to have suffered.

In support of the action, the applicant relies on seven pleas in law which are, in essence, identical or similar to those raised in Case T-301/11 Ben Ali v Council. (2)

(1) OJ 2012 L 27, p. 11.

(2) OJ 2011 C226, p. 29.
EN Official Journal of the European Union C 184/16

Action brought on 10 April 2012 — Adler Modemärkte v OHIM — Blufin (MARINE BLEU)

(Case T-160/12)

2012/C 184/29

Language in which the application was lodged: German

Parties

Applicant: Adler Modemärkte AG (Haibach, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Blufin SpA (Carpi, Italy)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2012 in Case R 1955/2010-2;

— order the defendant to pay the costs, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘MARINE BLEU’ for goods in Classes 18, 24 and 25 — application No 6 505 952

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

Mark or sign cited in opposition: the Italian and Community trade mark and the Italian and international trade mark registration ‘BLUMARINE’ for goods in Classes 3, 9, 14, 18, 19, 23, 24, 25 and 27

Decision of the Opposition Division: the opposition was rejected

Decision of the Board of Appeal: the appeal was upheld in part, the application was rejected in part and the case was referred back to the Opposition Division in part

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 165/31

Action brought on 2 April 2012 — Schulze v OHIM — NKL (Klassiklotterie)

(Case T-155/12)

2012/C 165/52

Language in which the application was lodged: German

Parties

Applicant: Hans Gerd Schulze (Hamburg, Germany) (represented by: K. Lodigkeit, lawyer)

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

Other party to the proceedings before the Board of Appeal: NKL Nordwestdeutsche Klassenlotterie (Hamburg)

Form of order sought

The applicant claims that the General Court should:

— set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 30 January 2012 (Appeal R 600/2011-4), in so far as that decision refused registration of the mark ‘Klassiklotterie’;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: Word mark ‘Klassiklotterie’ for goods and services in Classes 28, 35 and 41 (Application No 8 554 354).

Proprietor of the mark or sign cited in the opposition proceedings: NKL Nordwestdeutsche Klassenlotterie.

Mark or sign cited in opposition: German word mark ‘NKL-Klassiklotterie’ for goods and services in Classes 16, 35 and 41 (Mark No 2 904 650).

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009, as there is no likelihood of confusion between the opposing marks.
—

Set aside the judgment under appeal of the Third Chamber of the Civil Service Tribunal of the European Union of 29 November 2011 in Case F-119/10 by which it dismissed as unfounded the applicant’s action seeking annulment of the decision by which the Commission refused to place him on leave for national service;
EN Official Journal of the European Union C 165/33

Action brought on 13 April 2012 — Georgias and Others v Council and Commission

(Case T-168/12)

2012/C 165/55

Language of the case: English

Parties

Applicants: Aguy Clement Georgias (Harare, Zimbabwe); Trinity Engineering (Private) Ltd (Harare); and Georgiadis Trucking (Private) Ltd (Harare) (represented by: M. Robson and E. Goulder, Solicitors, and H. Mercer, Barrister)

Defendants: European Commission and Council of the European Union

Form of order sought

— Order that the EU and the Commission and/or the Council make good the damage caused, resulting from the application of certain restrictive measures in respect of Zimbabwe, by compensating the applicants on the basis of Articles 268 TFEU and the second paragraph of Article 340 TFEU in the following amounts or any other amounts that the Court shall decide: (i) 469 520,24 euros (EUR) or equivalent to Trinity; (ii) 5 627 020 euros (EUR) or equivalent to Georgiadis; (iii) 374 986,57 euros (EUR) or equivalent to Senator Georgias; (iv) any sum that the Court deems appropriate to compensate Senator Georgias for the non-pecuniary damage claimed; (v) interest at the rate of 8 % per annum on the above sums or any other rate that this Court may award;

— Order an inquiry into the level of damage suffered by the applicants, if and to the extend that the Court finds it necessary;

— Order the Commission and/or the Council to pay the costs incurred by the applicants in the present proceedings.

Pleas in law and main arguments

In support of the present action, by which damages against the EU for non-contractual liability are claimed, the applicants rely on two pleas in law.

1. First plea in law, alleging — following unlawful actions in the adoption of Commission Regulation (EC) 412/2007 of 16 April 2007 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (JO L 101, p. 6): (i) manifest error of assessment of the facts combined with breaches of the rights of the defence and to an effective judicial remedy; (ii) misuse of power; (iii) breach of rights of the defence with regard to the renewals of the asset-freezing measures.
EN Official Journal of the European Union C 109/23

Action brought on 9 February 2012 — Nabipour and Others v Council

(Case T-58/12)

2012/C 109/50

Language of the case: English

Parties

Applicants: Ghasem Nabipour (Tehran, Iran), Mansour Eslami (Madliena, Malta), Mohamad Talai (Hamburg, Germany), Mohammad Moghaddami Fard (Tehran), Alireza Ghezelayagh (Singapore, Singapore), Gholam Hossein Golparvar (Tehran), Hassan Jalil Zadeh (Tehran), Mohammad Hadi Pajand (London, the United Kingdom), Ahmad Sarkandi (United Arab Emirates), Seyed Alaeddin Sadat Rasool (Tehran) and Ahmad Tafazoly (Shanghai, the People’s Republic of China) (represented by: S. Kentridge, QC (Queen’s Counsel), M. Lester, Barrister, and M. Taher, Solicitor)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ L 319, 2.12.2011, p. 71) and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ L 319, 2.12.2011, p. 11), insofar as they concern the applicants;

— Declare that a travel ban does not apply to any of them; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants rely on four pleas in law, alleging that by including their names in the lists enclosed to the contested Decision and Regulation, the Council has:

— failed to give adequate or sufficient reasons;

— failed to fulfil the criteria for listing, and/or committed a manifest error of assessment in determining that those criteria were satisfied in relation to the conduct of the applicants;

— infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, and reputation, as well as of private and family life; and
EN Official Journal of the European Union C 109/19

Action brought on 6 February 2012 — Euroscript — Polska v Parliament

(Case T-48/12)

2012/C 109/43

Language of the case: French

Parties

Applicant: Euroscript — Polska Sp. z.o.o. (Cracow, Poland) (represented by: J.-F. Steichen, lawyer)

Defendant: European Parliament

Form of order sought

— First, annul the decision of 9 December 2011;

— In the alternative, annul call for tenders No PL/2011/EP;

— Order the Parliament to pay the costs of the proceedings;

— Reserve to the applicant all other rights, pleas and actions.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

1. First plea in law, alleging abuse of power in that the European Parliament did not communicate, or communicated late, the information requested by the applicant following the reallocation of the contract in the context of a procurement procedure concerning the provision of translation services into Polish. (1)

2. Second plea in law, alleging infringement of the rules and principles of the European Union, including the Financial Regulation, (2) and the Regulation implementing the Financial Regulation, (3) the successful tenderer being debarred when it requested the re-evaluation of its tender and the Parliament therefore no longer being entitled to revisit its decision to award the contract to the applicant without either suspending or annulling the call for tenders.

(1) OJ 2011/S 56-090361.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(3) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).
1.

First plea in law, alleging that the defendants have included individuals and entities without a proper legal basis for doing so. Neither the Council nor the Commission has the power to impose restrictive measures on non-state actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe. The unsubstantiated allegations are in many cases alleged to have taken place even before the Government of National Unity was formed. The institutions have acted beyond their limited competence in penal matters, and the measures in question are inappropriate and disproportionate to any legitimate Common Foreign and Security Policy objective.
EN Official Journal of the European Union C 118/30

Action brought on 15 February 2012 — Beco v Commission

(Case T-81/12)

2012/C 118/50

Language of the case: German

Parties

Applicant: Beco Metallteile-Handels GmbH (Spaichingen, Germany) (represented by: T. Pfeiffer, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the Commission's decision of 13 December 2011 (Az. K(2011) 9112 final);

— order the Commission to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of its action, the applicant claims that its application for a refund of anti-dumping duties, which was refused by the Commission's decision of 13 December 2011, was, contrary to the Commission's view, not lodged out of time and was therefore admissible.

The applicant states in this respect that the application was lodged within the 6-month period, in accordance with Article 11(8) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community. (1) According to the wording of Article 11(8) of Regulation No 384/96, the application for a refund is subject to the condition that the duties determined have been paid by the applicant for a refund. Contrary to the view of the Commission, the 6-month period laid down in Article 11(8) of Regulation No 384/96 cannot expire before the application for a refund is admissible.

Furthermore, in accordance with the Commission notice concerning the reimbursement of anti-dumping duties of 29 May 2002, (2) applications for refunds can ‘only be submitted in respect of transactions for which anti-dumping duties have been fully paid’ (point 2.1(b)). That notice also states expressly that an importer may apply for a refund only if he ‘can demonstrate that he has paid anti-dumping duties either directly or indirectly for a specific importation’ (point 2.2(a)).

The applicant further claims that the decision of 13 December 2011 infringes the applicant's legitimate expectation based on the Commission notice of 29 May 2002 as well as the principle of good faith.

The applicant further submits that the decision of 13 December 2011 infringes the principle of legal certainty.

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

(2) Commission notice concerning the reimbursement of anti-dumping duties (2002/C 127/06) of 29 May 2002 (OJ 2002 C 127, p. 10).