ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 234/51

Action brought on 7 July 2010 — Camara v Council

(Case T-295/10)

()

2010/C 234/91

Language of the case: French

Parties

Applicant: Kerfalla Person Camara (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea, in so far as it concerns the applicant;

— Order the Council to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea (1) in so far as the applicant is included on the list of natural or legal persons, entities or bodies whose funds and economic resources are frozen under Article 6 of that regulation.

In support of his action, the applicant raises three pleas in law alleging:

— a manifest error of assessment in including the applicant on the list of natural or legal persons entities or bodies whose funds and economic resources are frozen;

— an infringement of Article 215(3) TFEU since the contested regulation does not contain any legal guarantees, in particular procedural guarantees;

— an infringement of the Charter of Fundamental Rights of the European Union in so far as the contested regulation infringes, (i) the principle of non-discrimination by maintaining the applicant's name on the list of persons sanctioned because of social background, (ii) his rights of defence in that it does not provide for any procedure to inform the applicant of the evidence against him, (iii) the right to an effective judicial remedy in that the Council did not inform the applicant of his rights of appeal, and (iv) the applicant's right to property.

(1) OJ 2009 L 346, p. 26.
EN Official Journal of the European Union C 234/51

Action brought on 26 June 2010 — Martin v Commission

(Case T-291/10)

()

2010/C 234/90

Language of the case: English

Parties

Applicants: Anne Martin (Brussels, Belgium), (represented by: U. O’Dwyer, Solicitor)

Defendant: European Commission

Form of order sought

— Annul the implied Decision of the Commission of 20 April 2010 to refuse confirmatory access to the applicant’s 4 March 2010 request for access to documents;

— Order for the Commission to comply with Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents within the time-limits as deemed appropriate by the Court; and

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

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of the implied Decision of the Commission of 20 April 2010, whereby the latter failed to respond to the applicant’s confirmatory access to documents application to the Secretariat General of the Commission under Article 7(2) of Regulation 1049/2001 re-stating her original access to documents request of 22 December 2009 by the deadline of 20 April 2010.

In support of his appeal, the applicant submits the following pleas in law:

The failure of the Commission to take a decision by the time limit of 20 April 2010 imposed on it by Regulation 1049/2001 constitutes an implied refusal of the confirmatory access to document request of 4 March 2010 of the Applicant and is in breach of Article 8(1) of the said regulation and Article 296 TFEU for failing to state adequate reasons for the refusal.

(1) 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).
Official Journal of the European Union

Action brought on 27 August 2010 — Kraft Foods Schweiz v OHIM — Compañía Nacional de Chocolates (CORONA)

(Case T-357/10)

()

(2010/C 288/104)

Language in which the application was lodged: English

Parties

Applicant: Kraft Foods Schweiz Holding GmbH (Zug, Switzerland) (represented by: P. Péters and T. de Haan, lawyers)

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

Other party to the proceedings before the Board of Appeal: Compañía Nacional de Chocolates SA (Medellín, Colombia)

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 29 June 2010 in case R 696/2009-4; and

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

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 ‘CORONA’, for goods in class 30

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

Mark or sign cited: Estonian trade mark registration No 20671 of the word mark ‘KARUNA’, for goods in class 30; Latvian trade mark registration No M36592 of the word mark ‘KARUNA’, for goods in class 30; Lithuanian trade mark registration No 28143 of the word mark ‘KARŪNA’, for goods in class 30

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the opposition division and rejected the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly excluded likelihood of confusion; infringement of Article 8(5) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the marks are not similar or identical.
EN Official Journal of the European Union C 274/25

Action brought on 23 July 2010 — Groupe Partouche v Commission

(Case T-315/10)

()

2010/C 274/39

Language of the case: French

Parties

Applicant: Groupe Partouche SA (Paris, France) (represented by: J.-J. Sebag, lawyer)

Defendant: European Commission

Form of order sought

— Annul the decision of the Commission not to object to a concentration;

— Order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the appolicant seeks the annulment of Commission Decision C(2010) 3333 of 21 May 2010 declaring compatible with the common market and with the Agreement on the European Economic Area a proposed concentration by which Française des Jeux and Groupe Lucien Barrière acquire joint control of the undertaking Newco, which is to develop and operate an internet poker site in France.

In support of its action, the applicant submits that the Commission should have referred examination of the concentration in question back to the French Republic, having regard to its possible significant effect on competition in France in the relevant market.
Action brought on 18 August 2010 — Borax Europe v ECHA

(Case T-346/10)

()

(2010/C 288/95)

Language of the case: English

Parties

Applicant: Borax Europe Ltd (London, United Kingdom) (represented by: K. Nordlander, lawyer and H. Pearson, Solicitor)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

— declare the application for annulment admissible;

— annul the decision by ECHA to identify certain borate substances as ‘substances of very high concern’ meeting the criteria set out in Article 57(c) of Regulation (EC) No 1907/2006 (‘REACH’) (1) and to add them to the Candidate List of Substances of Very High Concern for Authorisation (‘candidate list’) on 18 June 2010 (the ‘contested act’);

— order ECHA to pay the Applicant’s costs for these proceedings.

Pleas in law and main arguments

The Applicant seeks the annulment of the decision by ECHA to identify certain borate substances as ‘substances of very high concern’ meeting the criteria set out in Article 57(c) REACH and to add them to the candidate list on 18 June 2010. The contested act was brought to the applicant’s attention by means of an ECHA press release of 18 June 2010.

The borate substances whose inclusion in the candidate list via the contested act the applicant challenges are: boric acid, CAS No 10043-35-3, EC No 233-139-2; disodium tetraborate, anhydrous; disodium tetraborate decahydrate; disodium tetraborate pentahydrate (CAS Nos 1330-43-4, 1303-96-4, 12179-04-3, EC No 215-540-4) (‘borates’).

In support of the application, the applicant puts forward three pleas in law.

First ground: the contested act should be annulled as it was based on Annex XV dossiers which contain manifest errors, leading to a breach of an essential procedural requirement in Article 59 of REACH. Those dossiers indicate, as the justification for ECHA action, that borates are currently classified in Part 3 of Annex VI to Regulation (EC) No 1272/2008, which is factually incorrect.

Second ground: ECHA adopted the contested act without discharging its function of performing an ‘on the merits’ assessment of whether borates meet the criteria referred to in Article 57(c) of REACH. Thus, in adopting the contested act, ECHA committed manifest errors of assessment, exceeded its powers and infringed the principle of good administration.

Third ground: finally, borates do not meet the criteria, referred to in Article 57(c) of REACH, for classification as toxic to reproduction category 1 or 2 under Directive 67/548. Accordingly, they are not ‘substances of very high concern’ and their inclusion in the candidate list via the contested act infringes Article 59(8) of REACH.

(1) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1)
Official Journal of the European Union

Action brought on 16 August 2010 — Panzeri v OHIM — Royal Trophy (Royal veste e premia lo sport)

(Case T-348/10)

()

(2010/C 288/97)

Language in which the application was lodged: Italian

Parties

Applicant: Luigi Panzeri (Monguzzi, Italy) (represented by: C. Galli, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Royal Trophy Srl (Cava di Tirreni, Italy)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of 20 May 2010 and the decision of the Opposition Division of 30 June 2009;

— declare that the applicant’s opposition to the application for registration of mark No 5 285 507 is upheld and reject the application for that mark in respect of goods in Class 25 (Clothing) and Class 28 (gymnastic and sporting articles not included in other classes) and/or adopt such other measure as the Court may deem appropriate;

— order Royal Trophy Srl to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Royal Trophy Srl

Community trade mark concerned: Figurative mark ‘Royal veste e premia lo sport’ (Registration application No 5 285 507) for goods in Classes 25 and 28

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

Mark or sign cited in opposition: Community word mark (No 1533504) and international word mark (No 5769068) ‘VESTE LO SPORT’ for goods in Class 25, and figurative mark ‘PANZERI veste lo sport’, not registered but used in the course of trade, for ‘clothing and, in particular, sportswear’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark
—

declare the non-contractual liability of the European Union and order the Court of Justice to compensate the applicant for all the loss incurred on account of the contested decisions and appoint an expert to evaluate that loss;
EN Official Journal of the European Union C 301/57

Action brought on 8 September 2010 — Laufen Austria v Commission

(Case T-411/10)

()

2010/C 301/91

Language of the case: Spanish

Parties

Applicant: Laufen Austria AG (Wilhelmsburg, Austria) (represented by: E. Navarro Varona, lawyer)

Defendant: European Commission

Form of order sought

— Annul in part Articles 1 and 2 of the Decision of the European Commission of 23 June 2010 with regard to the fine imposed on Laufen Austria (considered both individually and jointly and severally with Roca Sanitario) for the alleged infringement of Article 101 TFEU; and consequently

— reduce the fine imposed on Laufen Austria, considered individually and jointly and severally with Roca Sanitario, in accordance with the claim set out in the application, in so far as the Court deems it appropriate on the grounds stated or on other grounds which it may consider;

— order the Commission to pay the costs incurred by Laufen Austria.

Pleas in law and main arguments

The contested decision in these proceedings is the same as in Case T-408/10 Roca Sanitario v Commission.

The pleas in law and main arguments are similar to those put forward in that case.

It is maintained, in particular, that the decision at issue, in holding that the applicant did not operate independently on the market and declaring Roca Sanitario to be responsible for its conduct, is vitiated by a manifest error of assessment.

In that regard and in the alternative, the decision infringes Article 23 of 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 as well as the principle of individual responsibility for infringements and the principle of proportionality, in relation to the amount of the fine imposed individually on the applicant for the infringement allegedly committed prior to its acquisition by Roca Sanitario. That amounts exceeds 10 % of its turnover in the year preceding adoption of the contested decision and has been incorrectly established.
EN Official Journal of the European Union C 301/56

Action brought on 13 September 2010 — Bottega Veneta International v OHIM (Shape of a handbag)

(Case T-410/10)

()

2010/C 301/90

Language in which the application was lodged: Italian

Parties

Applicant: Bottega Veneta International Sarl (Luxembourg, Luxembourg) (represented by P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 16 June 2010 in Case R 1539/2009-1;

— Order the Office for Harmonisation in the Internal Market to pay the costs of the present proceedings and the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Trade mark consisting of a distinctive three-dimensional sign known as the ‘Cabat’ bag (application for registration No 6632566) for goods in Class 18 (‘bags and handbags’).

Decision of the Examiner: Refused the application for registration.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Rule 9(3)(a) of Regulation No 2868/95 and Article 7(1)(b) and (3) of Regulation No 207/2009.
EN Official Journal of the European Union C 317/37

Action brought on 21 September 2010 — Häfele v OHIM (Mixfront)

(Case T-425/10)

()

2010/C 317/67

Language in which the application was lodged: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by M. Eck and J. Dönch, lawyers)

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

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 30 June 2010 in Case R 338/2010-1;

— order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Mixfront’ for goods in Classes 6 and 20.

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b), (c) and (d) of Regulation (EC) No 207/2009, (1) as the Community trade mark concerned is distinctive, is not descriptive and is not a name that has become customary.

(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 317/38

Action brought on 16 September 2010 — Trefilerías Quijano v Commission

(Case T-427/10)

()

2010/C 317/69

Language of the case: Spanish

Parties

Applicant: Trefilerías Quijano (Los Corrales de Buelna, Spain) (represented by E. González Díaz and A. Tresandri Blanco, lawyers)

Defendant: European Commission

Form of order sought

— Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel;

— or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision challenged in these proceedings is the same as that in Case T-426/10 Moreda-Riviere Trefilerías v Commission.

The pleas in law and main arguments are similar to those raised in that case.

The applicant denies that it should be held liable for the alleged infringement of Article 101 TFEU.
—

Fourth, and in the alternative, the applicant submits that the Commission, wrongly and contrary to law, imposed a fine on the applicant of EUR 6 934 000 and should have imposed no fine or a considerably lower fine on it. — According to the applicant, the Commission should not have taken its 2003 turnover into account as the criterion for the purposes of fixing the 10 % ceiling for its fine; in any event, if the main rule in Article 23(2) of Regulation (EC) No 1/2003 was not applied, the Commission should have considered its consequences in the specific case in the light of the purpose of that provision. The fine is therefore not proportionate to the size of the undertaking and does not fulfil the requirements of the case-law. — The Commission should also have granted the applicant the reduction for leniency which it granted Nedri Spanstaal. — The Commission wrongly calculated the applicant’s fine separately and should have limited that fine to a fraction of the fine imposed on Nedri Spanstaal. The Decision in regard to the applicant is based on the applicant’s shareholding in Nedri Spanstaal during a 48/224th part of the total period of Nedri Spanstaal’s infringement; the fine does not satisfy the principal of proportionality. — By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for Nedri Spanstaal’s infringement, the relatively limited quality of the applicant’s liability and its limited turnover, the Commission infringed the principle of proportionality. — By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for the infringement in comparison with Nedri Spanstaal, the Commission infringed the principle of equal treatment. It follows from the case-law that the amount of the fine is also determined by the length of the infringement during which the fined undertaking is jointly responsible. The fact that the applicant’s fine is higher than Nedri Spanstaal’s fine is incompatible with this.
EN Official Journal of the European Union C 328/36

Appeal brought on 20 September 2010 by Salvatore Magazzu against the judgment of the Civil Service Tribunal delivered on 8 July 2010 in Case F-126/06, Magazzu v Commission

(Case T-442/10 P)

()

2010/C 328/61

Language of the case: French

Parties

Appellant: Salvatore Magazzu (Brussels, Belgium) (represented by M. Velardo, lawyer)

Other party to the proceedings: European Commission

Forms of order sought by the appellant

— Annulment of the judgment in Case F-126/06 Magazzu v Commission;

— Annulment of the decision of 13 December 2005 in so far as it classifies the applicant as a probationary official in grade A*6, step 2, as from 1 January 2006;

— Reference of the case back to the Civil Service Tribunal for judgment;

— Costs against the Commission, including those of the procedure at first instance.

Pleas in law and main arguments

The pleas in law and main arguments raised by the appellant are essentially identical or similar to those raised in Case T-441/10 P Kurrer v Commission.
EN Official Journal of the European Union C 30/44

Action brought on 24 November 2010 — DTS Distribuidora de Televisión Digital v Commission

(Case T-533/10)

()

2011/C 30/80

Language of the case: Spanish

Parties

Applicant: DTS Distribuidora de Televisión Digital, SA (Tres Cantos, Madrid, Spain) (represented by: H. Brokelmann and M. Ganino, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2010) 4925 final of 20 July 2010, and

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

Pleas in law and main arguments

The applicant in the present proceedings, a satellite pay TV operator, challenges Commission Decision C(2010) 4925 final of 20 July 2010‘on the State aid scheme No C 38/2009 (ex NN 58/2009) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE)’, which declared that that scheme, as amended by Law 8/2009 of 28 August 2009 on financing Corporación de Radio y Televisión Española, was compatible with the common market, without its being necessary to analyse the scheme’s method of financing.

The applicant submits that the Commission was not entitled to authorise the aid scheme in question without analysing the method of financing introduced by the above-mentioned Law and, specifically, the 1,5% tax on the gross operating income of pay-TV broadcasters.

In support of its claims the applicant puts forward the following pleas in law:

— Error of law on the part of the Commission, by authorising the aid which is the subject-matter of the proceedings without analysing its method of financing. In that connection, it is submitted that it is settled case-law that aid cannot be considered separately from the effects of its method of financing if that method forms an integral part of the aid, and that, with regard to the present case, the 1.5 % tax on the gross operating income of pay-TV broadcasters forms an integral part of the aid scheme, which is why the Commission ought to have analysed the scheme and the aid together.

— Infringement of Article 106(2) TFEU, in that the Commission authorised an aid scheme which fails to observe the principle of proportionality, since the taxes financing the scheme involve a serious distortion of competition, in the content acquisitions market and in the downstream viewers’ market, contrary to the common interest.