ddrg/super_eurlex huggingface dataset:
2.

Second plea in law, alleging an error of the European Union legislator in the choice of the legal basis for the challenged decision and regulation, since the sanctions were adopted against the applicant and its affiliates, being legal persons and not State entities not listed by the UNSC. In this regard, the applicant submits that: — although the basis of Article 29 TUE and 215 TFUE are justified when the Union institutions are enforcing the UN Resolution, they are not necessarily justified when administrative measures such as the freezing of funds of legal persons and non State entities are adopted; — the contested acts had to be adopted on the basis of Article 75 TFUE, thus involving the European Parliament in the framework of the co-decision procedure.
EN Official Journal of the European Union C 80/31

Action brought on 24 January 2011 — Deutsche Lufthansa and Others v Commission

(Case T-46/11)

2011/C 80/56

Language of the case: English

Parties

Applicants: Deutsche Lufthansa AG (Köln, Germany), Lufthansa Cargo AG (Kelsterbach, Germany) and Swiss International Air Lines AG (Basel, Switzerland) (represented by: S. Völcker, F. Louis, E. Arsenidou and A. Israel, lawyers)

Defendant: European Commission

Form of order sought

— annul Articles 1-4 of the contested decision;

— order the Commission to bear the costs.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 in case COMP/39.258 — Airfreight relating to the proceeding under Article 101 TFEU and Article 53 of the EEA Agreement.

In support of the action, the applicants rely on four pleas in law:

1. First plea in law alleging that the contested decision infringes Article 11(2) and Article 11(1) of the EC-Swiss Agreement by relying on contacts between competitors which took place in Switzerland.

2. Second plea in law alleging that the contested decision infringes Article 1(2) of Regulation No 3975/87 (1) by relying on contacts between competitors which took place prior to 1 May 2004 in jurisdictions outside the EEA in order to establish: — an infringement of Article 101 TFUE and Article 53 of the EEA Agreement involving European carriers (including the applicants) prior to 1 May 2004; — the origin of a single and continuous infringement prior to 1 May 2004 so as to be able to find an infringement immediately starting as of that date.

3. Third plea in law alleging that the contested decision infringes Article 101 TFUE, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement by characterizing contacts between competitors which took place in jurisdictions outside the EEA as constituting part of the same single and continuous infringement with contacts between competitors that took place at headquarter level.

4. Fourth plea in law alleging that the contested decision infringes Article 101 TFUE and Article 53 of the EEA Agreement to the extent that it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFUE and of Article 53 of the EEA Agreement on their own, i.e. irrespective of whether they constitute part of the same single and continuous infringement with contacts between competitors that took place at the headquarter level. Agreements or concerted practices with respect to EEA-inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between Member States. Moreover, government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFUE and Article 53 of the EEA Agreement.

(1) Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector, OJ L 374, p. 1
2.

Second plea, alleging misapplication of the principle of non-discrimination, since the CST erred in law (i) in deciding that the Director-General of the Personnel and Administration Directorate-General had residual power which had not been legally conferred on him by a decision of the appointing authority in accordance with Article 2(ii) of the Staff Regulations and (ii) in deciding that officials promoted pursuant to Articles 29 and 45 of the Staff Regulations would, following their appointment or promotion, be in the same legal situation, even though that situation would not be the same either in terms of procedure or in terms of duties and responsibilities.
—

annul the Commission’s implicit decision of 10 December 2010 rejecting the applicant’s confirmatory application for access to Commission Decision on the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 2181) and the Draft Commission Decision on amending the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 8058);
—

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Société Air France, as well the grounds underlying the operative part of the Decision;
2.

Second plea in law alleging a manifest error of assessment, in so far as: — the applicant is accused of refusing to place himself under the authority of the democratically elected president, A. Ouattara, whereas the applicant may not in the capacity of a soldier avoid obeying the constitutional authorities of his country which have declared L. Gbagbo elected president and — the applicant is accused of being responsible for serious breaches of human rights and international humanitarian law, whereas the applicant has not been challenged by the International Criminal Court whose jurisdiction has been recognised by the Republic of Côte d’Ivoire.
EN Official Journal of the European Union C 113/19

Action brought on 15 February 2011 — Stichting Corporate Europe Observatory v Commission

(Case T-93/11)

2011/C 113/37

Language of the case: English

Parties

Applicant: Stichting Corporate Europe Observatory (Amsterdam, Netherlands) (represented by: S. Crosby, Solicitor, and S. Santoro, lawyer)

Defendant: European Commission

Form of order sought

— find that the Commission Decision of 6 December 2010 in procedure GESTDEM 2009/2508 infringes Regulation No 1049/2001 (1) and annul it accordingly; and

— order the Commission to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

By means of his application the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Commission Decision of 6 December 2010 in procedure GESTDEM 2009/2508 refusing to allow full access to several documents relating to the trade negotiations between the EU and India, pursuant to Regulation No 1049/2001.

In support of the action, the applicant relies on one plea in law, alleging misapplication of Article 4(1)(a) third indent of Regulation No 1049/2001, as the international relations exception is inapplicable in this case because all the documents requested are in the public domain.

(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
—

declare that, concerning the applicant, Mr Claude YORO, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, have no factual basis,
EN Official Journal of the European Union C 139/25

Action brought on 10 March 2011 — Magnesitas de Rubián SA v Parliament and Council

(Case T-158/11)

2011/C 139/48

Language of the case: Spanish

Parties

Applicants: Magnesitas de Rubián SA (Incio, Spain) Magnesitas Navarras SA (Zubiri, Spain), Ellinikoi Lefkolithoi Anonimos Metalleftiki Viomichaniki Naftiliaki kai Emporiki Etaireia (Athens, Greece) (represented by: H. Brokelmann, P. Martínez-Lage Sobredo, lawyers)

Defendant: Parliament and Council

Form of order sought

Annulment of the individual decision contained in Article 13(7) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (OJ 2010 L 334, p. 17), insofar as it imposes an obligation on the Member States to respect the conclusions on best available techniques contained in section 3.5 of the reference document on best available techniques for the cement, lime and magnesium oxide manufacturing industries (OJ 2010 C 166, p. 5), as regards the conditions for the permits which the competent authorities grant to manufacturing facilities for magnesium oxide subject to permits under that directive.

The applicant claims that the General Court should:

— annul the contested decision, as its main claim,

— in the alternative and in the event that the General Court should not annul that decision as regards section 3.5 of the reference document in its entirety, annul it in any event as regards section 3.5.5.4 thereof, including in particular the emission levels set out in Table 3.11. and

— in any event, order the European Parliament and the Council to pay the costs.

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 that the European Commission does not have the requisite authority. It is argued that the European Union has no authority to include the manufacture of magnesium dioxide in the reference document.

2. Second plea in law, alleging breaches of essential procedural rules, specifically: — failure to notify the applicants of the opening of the procedure for drawing up the reference document and its late participation in that procedure. — the absence in the reference document of the ‘split views’ presented by the applicants. — failure to observe the deadline for the analysis of the final draft of the reference document.

3. Third plea in law, alleging breach of Article 1 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control. It is alleged in this connection that the reference document infringes the objective declared in Article 1 of the directive, consisting in the protection of the environment taken as a whole, so that the conclusions contained in section 3.5 of that document, which the contested decision makes binding, also infringe that objective.
—

annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the applicants, namely the PORT AUTONOME DE SAN PEDRO, the PORT AUTONOME D’ABIDJAN and the société de gestion du patrimoine du secteur de l’électricité SOGEPE;
EN Official Journal of the European Union C 145/33

Action brought on 10 March 2011 — Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO)

(Case T-159/11)

2011/C 145/54

Language in which the application was lodged: Polish

Parties

Applicant: Marek Marszałkowski (Sokolniki, Poland) (represented by: C. Sadkowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Mar-Ko Fleischwaren GmbH & Co. KG (Blankenhain, Germany)

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 11 January 2011 (Case R 760/2010-4) refusing registration of the mark ‘Marko Walichnowy’ as a Community trade mark in so far as it relates to goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce;

— alternatively, amend the contested decision by taking account of the sound basis for registration of the Community trade mark ‘Marko Walichnowy’ in so far as it relates to the aforementioned goods in Class 29;

— order the defendant to pay the costs of the proceedings, including the costs of the applicant’s representation in the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative trade mark containing the word element ‘Marko Walichnowy’ for goods in Class 29 — Application No 007161541

Proprietor of the mark or sign cited in the opposition proceedings: Mar-Ko Fleischwaren GmbH & Co. KG

Mark or sign cited in opposition: Community word mark ‘Mar-Ko’ for certain goods in Class 29

Decision of the Opposition Division: dismissal of the opposition

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for the following goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce

Pleas in law: breach of Article 8(1)(b) of Regulation No 207/2009 (1) in so far as the contested decision establishes a similarity between the trade marks and the possibility that consumers might be misled

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
—

The only permissible basis for including the applicant in the said annex would be if he fulfilled the criterion set out in Article 1 of Council Decision 2011/72/CFSP (1) namely if he were someone ‘responsible for the misappropriation of Tunisian State funds’ or someone associated with such a person, since, as recital 2 explains, such persons ‘are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’.
EN Official Journal of the European Union C 194/17

Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

(Case T-224/11)

2011/C 194/28

Language in which the application was lodged: German

Parties

Applicant(s): Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

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 10 February 2011 in Case R 1494/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Word mark ‘BERG’ for goods in Classes 25 and 28 (Application No 7 115 009).

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35 (Community trade mark No 3 383 676), the opposition being directed against registration for goods in Classes 25 and 28.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (Consolidated Version) (OJ 2009 L 78, p. 1).
2.

Second plea in law alleging, in the case of supply contracts, an infringement, on account of incorrect application, of Article 20(2)(e) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (OJ 1993 L 199, p. 84) and, in the case of contracts for works and contracts for services the subject of correction, an infringement, on account of incorrect application, of Article 20(2)(f) of that Directive, since the contracting of additional services is a conceptually distinct matter from the amendment of a contract at the performance phase provided for by Spanish legislation in relation to public contracts and consequently such amendment does not fall within the scope of Directive 93/38.
2.

Second plea in law, alleging manifest error of assessment, in so far as: — the applicant is accused of financing the administration of Mr L. Gbagbo, whereas, first, the applicant essentially carried out his functions with Mr L. Gbagbo at a time when the latter was recognised as legitimate head of state by the international community, and, second, the applicant did not have resources allowing him to finance the adminstration of Mr L. Gbagbo; — the contested measures appear to be devoid of purpose since 11 April 2011, Mr L. Gbagbo having been captured on that date.
Fourth plea in law: Different treatment by the European Commission of comparable situations in terms of competition:

In the applicant’s opinion, the question arises why comparable situations in terms of competition — with reference to the similarities between the ÖSG and the German Renewable Energy Act, particularly in respect of the economic and competitive effects — have manifestly been treated differently. That appears incompatible with the general principle of equal treatment.
—

First, the applicant submits that the information requested in the contested decision bears no relation to the infringement under investigation and, as such, cannot assist the Commission in its task of verifying any evidence which justifies the investigation in relation to Valderrivas. Consequently, the applicant claims that the requirement of necessity to which requests for information are subject by way of Article 18 of Regulation No 1/2003 is not satisfied. Moreover, the applicant submits that the fact that the decision does not contain any references to such evidence cannot prevent the General Court from carrying out its task of reviewing the requirement of necessity.
EN Official Journal of the European Union C 238/18

Action brought on 2 May 2011 — Fraas v OHIM (Dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern)

(Case T-231/11)

2011/C 238/32

Language of the case: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of 4 March 2011 in Case R 2041/2010-4 relating to Community trade mark application No 008 423 626 (figurative mark);

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

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern for goods in Classes 18, 24, and 25 — application No 8 423 626.

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation No 207/2009, as the Community trade mark at issue has distinctive character, and infringement of Articles 75 and 76 of Regulation No 207/2009, as the Board of Appeal did not examine the extensive factual and legal submissions of the applicant.
EN Official Journal of the European Union C 252/38

Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe BY GIUSEPPE ZANOTTI)

(Case T-337/11)

2011/C 252/86

Language in which the application was lodged: Italian

Parties

Applicant: Società Italiana Calzature SpA (Milan, Italy) (represented by: A. Rapisardi and C. Ginevra, lawyers)

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

Other party to the proceedings before the Board of Appeal: Vicini SpA (San Mauro Pascoli, Italy)

Form of order sought

— Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0918/2010-2 and, accordingly, uphold the decision of the Opposition Division of 30 April 2010 relating to Opposition No 992653

— Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: VICINI SpA

Community trade mark concerned: Figurative mark containing the word element ‘Giuseppe BY GIUSEPPE ZANOTTI’ (application for registration No 992.653), for goods in Classes 18 and 25

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

Mark or sign cited in opposition: Earlier Community word mark ‘ZANOTTI’ (No 244.277), for goods in Class 25

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Opposition rejected in its entirety

Pleas in law: Misinterpretation and misapplication of Article 8(2)(b) of Regulation No 207/2009 on the Community trade mark.
—

It is true that the defendant acknowledges that ‘the system of reference is the KStG in its current form’, but it fails to appreciate that the legal situation in the Federal Republic was changed by the introduction of the Law on acceleration of growth (the Wachstumsbeschleunigungsgesetz). Since the introduction of the provision on hidden reserves in Paragraph 8c KStG, in healthy undertakings losses can still be deducted and carried forward where the changes made to the shareholding do not exceed the amount of the hidden reserves. Thus, for healthy undertakings, the provision on hidden reserves can be understood as the counterpart of the Sanierungsklausel for undertakings in difficulty, since otherwise, undertakings in need of restructuring would be disadvantaged in structural terms.
EN Official Journal of the European Union C 269/51

Action brought on 21 June 2011 — Leifheit v OHIM (EcoPerfect)

(Case T-328/11)

2011/C 269/113

Language of the case: German

Parties

Applicant: Leifheit AG (Nassau, Germany) (represented by G. Hasselblatt, lawyer)

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 31 March 2011 (Case R 1658/2010-1) and admit for publication in its entirety the Community trade mark ‘EcoPerfect’ (application No 8708745);

— Order OHIM to bear its own costs and to pay those incurred by the applicant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘EcoPerfect’ for goods in class 21 — application No 8708745.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 since the Community trade mark applied for, ‘EcoPerfect’, is not descriptive of the goods in class 21, nor does it lack any distinctive character.