ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 274/24

Appeal brought on 20 July 2010 by European Commission against the judgment of the Civil Service Tribunal delivered on 11 May 2010 in Case F-30/08 Nanopoulos v Commission

(Case T-308/10 P)

()

2010/C 274/38

Language of the case: Greek

Parties

Appellant: European Commission (represented by J. Currall and by E.Bourtzalas and I. Antypas, lawyers)

Other party to the proceedings: Fotios Nanopoulos (Itzig, Luxembourg)

Form of order sought by the appellant

The General Court is asked to

— set aside the judgment of the Civil Service Tribunal of 11 May 2010 in Case F-30/08 Nanopoulos v Commission;

— if the judgment is upheld, set the correct level of compensation; and

— order the respondent to pay all costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

With the above appeal, the appellant asks the General Court to set aside the judgment of the Civil Service Tribunal of 11 May 2010 in Case F-30/08 Nanopoulos v Commission, ordering the Commission to pay to the respondent compensation for non-material damage amounting to EUR 90 000 and to bear all the costs.

In support of its appeal, the Commission relies on the following grounds of appeal:

— infringement of Articles 90 to 91 of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’) and the principle of legal certainty in that the Civil Service Tribunal erred in law by ruling that the claim brought by the respondent should be deemed to be an action for damages, without stating any reasons whatsoever;

— error in law and defective statement of reasons, in that the Civil Service Tribunal considered that the action for damages was brought in good time, and ruled that the decision to initiate disciplinary proceedings was in breach of the presumption of innocence;

— infringement of Community law, error in law and defective statement of reasons, in that the Civil Service Tribunal failed to apply the principle of law requiring a ‘sufficiently serious infringement’ and did not explain why a departure from the existing case law would be necessary in the present case;

— infringement of Article 24 of the Staff Regulations, error in law and defective statement of reasons in that the Civil Service Tribunal considered that the appointing authority was obliged to provide immediate assistance to the respondent without prior investigation and before expiry of the period of four months under that article for responding to requests;

— manifest error in law and in the statement of reasons in that the Civil Service Tribunal ruled that the Commission, first, is responsible for the alleged leaks to the press and, second, erred in initiating disciplinary proceedings;
Action brought on 3 September 2010 — Rubinetteria Cisal v Commission

(Case T-368/10)

()

(2010/C 288/110)

Language of the case: Italian

Parties

Applicant: Rubinetteria Cisal (Alzo Frazione di Pella, Italy) (represented by M. Pinnarò, lawyer)

Defendant: European Commission

Form of order sought

— Annulment of Decision C(2010) 4185 of 23 June 2010;

— alternatively, if the Court should not annul the fine imposed, reduction of the fine to a more appropriate sum;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that in Case T-364/10 Duravit and Others v Commission.

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

I. Infringement and misapplication of Articles 101 TFEU and 53 EEA

In this regard, it is claimed that the decision, in so far as it concerns Cisal, is quite wrong, for Cisal has played no part (even an unwitting part) in any cartel, having merely exchanged non-sensitive business information which was unreserved and (in almost every case) later than the decisions taken independently and already spreading on the market.

II. Breach of the principles of proportionality and equal treatment

According to the applicant, the Commission failed to consider that the role, involvement, responsibility, advantages etc. of and for each producer differed significantly from one to another. Specifically, the defendant has drawn no distinctions and does not explain why the maximum penalty is to be imposed on Cisal, given that the latter: (i) was never a member of one of the two associations (Michelangelo); (ii) never had bilateral contacts; (iii) did not take part in meetings at which all three products were considered (but only taps, cocks and fittings and ceramic ware) and (iv) had always had only an insignificant share of the market.

So far as the fixing of the fine is concerned, the applicant maintains that the Commission ought to have taken into account and determined the actual effect of the infringement on the market and the extent of the relevant geographic market, and to have taken account of Cisal’s actual economic ability to distort competition and of its specific weight.

The applicant alleges also that the basis used for computing the amount of the fine was incorrect, and that the Commission failed to have regard to mitigating circumstances.
Official Journal of the European Union

Action brought on 30 August 2010 — Rubinetterie Teorema v Commission

(Case T-370/10)

()

(2010/C 288/111)

Language of the case: Italian

Parties

Applicant: Rubinetterie Teorema SpA (Flero, Brescia, Italy) (represented by: R. Cavani, lawyer, M. Di Muro, lawyer, P. Preda, lawyer)

Defendant: European Commission

Form of order sought

— Annul Decision C(2010) 4185 of 23 June 2010;

— In the alternative, impose a token fine;

— In the further alternative, substantially reduce the fine imposed by the decision to such amount as the Court deems appropriate;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that contested in Case T-368/10 Rubinetteria Cisal v Commission.

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

In particular, the applicant alleges:

— Infringement of the rights of the defence in relation to Teorema and the consequent invalidity of the decision owing to: — the delay in communicating to Teorema the accusations made by the Commission; — the difficulties in accessing the file and the lack of an adequate extension of the time-limits;

— The fact that there is no agreement whose purpose or effect is to prevent, restrict or distort competition and/or no adverse effects on Community trade, and
EN Official Journal of the European Union C 301/45

Action brought on 9 September 2010 — Goutier v OHIM — Eurodata (ARANTAX)

(Case T-387/10)

()

2010/C 301/72

Language in which the application was lodged: German

Parties

Applicant: Klaus Goutier (Frankfurt am Main, Germany) (represented by: E.E. Happe, 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: Eurodata GmbH & Co KG (Saarbrücken, 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 1 July 2010 in Case R 126/2009-4, to the extent that the Community trade mark application was, by setting aside the contested decision, rejected in respect of the following services: Class 35– Tax consultancy, tax preparation, accounting, auditing, professional business consultancy, business consultancy Class 36– Fiscal assessments, mergers and acquisitions, namely financial consultancy with regard to the purchase or sale of companies and company shares; Class 42– Provision of legal services, legal research;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Klaus Goutier.

Community trade mark concerned: Word mark ‘ARANTAX’ for services in Classes 35, 36 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Eurodata GmbH & Co KG.

Mark or sign cited in opposition: German word mark ‘ANTAX’ for services in Classes 35, 36, 41, 42 and 45.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Partial setting aside of the decision of the Opposition Division and partial rejection of the Community trade mark application.

Pleas in law: Infringement of Articles 15 and 43 of Regulation (EC) No 207/2009, (1) because proof of use had not been provided, and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, because there is no likelihood of confusion between the marks at issue.

(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 301/50

Action brought on 13 September 2010 — Grebenshikova v OHIM — Volvo Trademark (SOLVO)

(Case T-394/10)

()

2010/C 301/79

Language in which the application was lodged: English

Parties

Applicant: Elena Grebenshikova (St. Petersburg, Russian Federation) (represented by: M. Björkenfeldt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Volvo Trademark Holding AB (Göteborg, Sweden)

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 9 June 2010 in case R 861/2010-1; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘SOLVO’, for goods in class 9

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: United Kingdom trade mark registrations No 747361 of the figurative mark ‘VOLVO’, for a wide range of goods and services; United Kingdom trade mark registrations No 1552528, No 1102971, No 1552529 and No 747362 of the word mark ‘VOLVO’, for a wide range of goods and services; Community trade mark registrations No 2361087 and No 2347193 of the word mark ‘VOLVO’, for inter alia goods and services in classes 9 and 12

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly applied the provisions of this Article; violation by the Board of Appeal of a general principle of EU law regarding equal treatment and violation of Article 1 of the Agreement on the Trade-Related Aspects on Intellectual Property Rights (TRIPS), as well as violation of Article 2 of the Paris Convention for the Protection of Industrial Property.
EN Official Journal of the European Union C 301/53

Action brought on 9 September 2010 — Villeroy & Boch — Belgium v Commission

(Case T-402/10)

()

2010/C 301/85

Language of the case: Dutch

Parties

Applicant: Villeroy & Boch — Belgium (Brussels, Belgium) (represented by: O. Brouwer and J. Blockx, lawyers)

Defendant: European Commission

Form of order sought

— annul the contested decision in so far as it concerns Villeroy & Boch Belgium N.V./S.A;

— in the alternative, reduce the fine imposed on the applicant; and also

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

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision C(2010) 4185 of 23 June 2010 in Case COMP/39092 — Bathroom fixtures and fittings, relating to an infringement of Article 101(1) TFEU on the market for taps, shower cabins and ceramic products.

The applicant puts forward seven pleas in support of its action:

— breach of Article 101 TFEU, Article 53 of the EEA Agreement and settled case-law in so far as the Commission incorrectly assumed that there had been a single and continuous infringement;

— breach of the duty to state reasons flowing from Article 296(2) TFEU on account of an inadequate and defective statement of reasons in relation to the finding of a single and continuous infringement;

— breach of the duty to state reasons in relation to the applicant’s alleged participation in the infringement of which it stands accused on the Belgian market and absence of evidence that the applicant participated in that infringement on the Belgian market;

— the joint and several liability for the fine imposed on the applicant and its parent company infringes the principle nulla poena sine lege laid down in Article 49(1) of the Charter of Fundamental Rights of the European Union and the principle of the proportionality of the penalty to the offence pursuant to Article 49(3) in conjunction with Article 48(1) of the Charter, and infringement of Article 23 of Regulation (EC) No 1/2003;

— miscalculation of the amount of the fine, since that amount relates to certain turnover which has no connection with the infringement of which the applicant stands accused;

— breach of Article 41 of the Charter, since the disproportionate length of the procedure did not result in a reduction of the fine;
EN Official Journal of the European Union C 301/40

Action brought on 7 September 2010 — Masco and Others v Commission

(Case T-378/10)

()

2010/C 301/65

Language of the case: English

Parties

Applicants: Masco Corp. (Taylor, United Stated of America), Hansgrohe AG (Schiltach, Germany), Hansgrohe Deutschland Vertriebs GmbH (Schiltach, Germany), Hansgrohe Handelsgesellschaft m.b.H. (Wiener Neudorf, Austria), Hansgrohe SA/NV (Anderlecht, Belgium), Hansgrohe B.V. (Westknollendam, the Netherlands), Hansgrohe SARL (Antony, France), Hansgrohe Srl (Villanova d’Asti, Italy), Hüppe GmbH (Bad Zwischenahn, Germany), Hüppe Gesellschaft m.b.H. (Laxenburg, Austria), Hüppe Belgium SA/NV (Zaventem, Belgium) and Hüppe B.V. (Alblasserdam, the Netherlands) (represented by: D. Schroeder, lawyer and J. Temple Lang, Solicitor)

Defendant: European Commission

Form of order sought

— annul Article 1 of the Commission decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures, insofar as it finds that the applicants have participated in a continuing agreement or concerted practice ‘in the bathroom fittings and fixtures sector’, and

— order the Commission to pay the applicants’ legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment of Article 1 of Commission decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures, by which the Commission found that the applicants, together with other undertakings had infringed Article 101 TFEU and Article 53 EEA by participating in a continuing agreement or concerted practice ‘in the bathroom fittings and fixtures sector’, covering the territory of Germany, Austria, Italy, France, Belgium and the Netherlands.

The applicants put forward one plea in law in support of their application.

The applicants challenge the Commission’s legal qualification of the conduct as a single complex infringement covering three different product groups, namely taps and fittings, shower enclosures and ceramic sanitary ware, instead of finding three separate infringements.

The applicants do not produce ceramic sanitary ware. The applicants submit that in finding that they participated a single complex infringement across the three product groups, including ceramic sanitary ware, the Commission committed errors of assessment of the facts and errors of law. The Commission’s finding of a single complex infringement in the decision is not in line with previous Commission cases (or the jurisprudence of the Courts). Thus, the Commission infringed the principles of transparency, legal certainty and equal treatment. In particular, the facts and evidence presented in the decision do not support the Commission’s conclusion that there is a single complex infringement covering three different product groups.
EN Official Journal of the European Union C 317/35

Action brought on 15 September 2010 — Emme v Commission

(Case T-422/10)

()

2010/C 317/64

Language of the case: Italian

Parties

Applicant: Emme Holding SpA (Pescara, Italy) (represented by: G. Visconti, E. Vassallo di Castiglione, M. Siragusa, M. Beretta and P. Ferrari, lawyers)

Defendant: European Commission

Form of order sought

— Annul or reduce the fine imposed by the Commission on Emme Holding by decision of 30 June 2010 (Case COMP/38.344 — Pre-stressing steel).

— Order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case is the same as that in Case T-385/10 ArcellorMittal Wire France and Others v Commission.

In particular, the applicant submits that:

— the attribution to the applicant of a single and continuous infringement instituted by all the European cartels (Club Europa) and all the national/regional cartels (Club Italiano, Club España and the Accordo Meridionale) is unjustified. The applicant has never in fact participated (actively or passively) at European level in the alleged infringement. Similarly, Trame was unaware of any regional or national cartels operating in countries other than Italy.

— the decision takes account of both stranded wire (7 strands) and braided wire (2-3 strands). However, the applicant submits that braided wire has never been the subject of a cartel in connection with Club Italia. The turnover generated by that product should therefore not be taken into account in calculating the fine.

The applicant also seeks a reduction of the fine, on the ground that its participation in the alleged infringement was marginal, and on account of its inability to pay.
EN Official Journal of the European Union C 301/35

Action brought on 2 September 2010 — Handicare v OHIM — Apple Corps (BEATLE)

(Case T-369/10)

()

2010/C 301/59

Language in which the application was lodged: English

Parties

Applicant: Handicare Holding BV (Helmond, The Netherlands) (represented by: G. van Roeyen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apple Corps Ltd (London, United Kingdom)

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 31 May 2010 in case R 1276/2009-2; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘BEATLE’, for goods in class 12

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: United Kingdom trade mark registration No 1341242 of the figurative marks ‘BEATLES’ and ‘THE BEATLES’, for goods in class 9; Spanish trade mark registration No 1737191 of the figurative mark ‘BEATLES’, for goods in class 9; German trade mark registrations No 1148166 and No 2072741 of the figurative marks ‘BEATLES’, for goods in class 9; Portuguese trade mark registration No 312175 of the figurative mark ‘BEATLES’, for goods in class 9; French trade mark registration No 1584857 of the figurative mark ‘BEATLES’, for goods in class 9; Italian trade mark registration No 839105 of the figurative mark ‘BEATLES’, for goods in class 9; Community trade mark registration No 219048 of the word mark ‘BEATLES’, for goods in classes 6, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 34, and 41; Community trade mark registration No 219014 of the figurative mark ‘BEATLES’, for goods in classes 6, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 34, and 41

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the decision of the Opposition Division

Pleas in law: Infringement of Articles 8(1)(b) and 8(4) of Council Regulation No 207/2009, as the Board of Appeal failed to reject the opposition on these grounds notwithstanding that it established that there is not any real similarity between the concerned products; infringement of Article 8(5) of Council Regulation No 207/2009, as the Board of Appeal erroneously concluded that the conditions for the application of this Article were fulfilled.
EN Official Journal of the European Union C 328/34

Action brought on 24 September 2010 — Mahmoudian v Council

(Case T-440/10)

()

2010/C 328/59

Language of the case: French

Parties

Applicant: Fereydoun Mahmoudian (Tehran, Iran) (represented by: A. Kronshagen, lawyer)

Defendant: Council of the European Union

Form of order sought

— Annul point 2 of Section I A of the annex to Council Regulation (EU) No 668/2010 concerning restrictive measures against Iran, and the Council's decision of 26 July 2010 in so far as it concerns the applicant;

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

Pleas in law and main arguments

The applicant seeks annulment of Council implementing Regulation (EU) No 668/2010 implementing Article 7(2) of Regulation (EC) No 423/2007, (1) and Council Decision 2010/413/CFSP, (2) concerning restrictive measures against Iran with the aim of preventing nuclear proliferation, in so far as the applicant's name has been placed on the list of persons, entities and bodies whose funds and economic resources are frozen pursuant to that provision.

The pleas in law and arguments raised by the applicant are identical to those raised in Case T-439/10 Fulmen v Council, concerning the company of which the applicant is the managing director.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25).

(2) Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).
1.

The first plea in law alleges that the Commission made a manifest error when it concluded that the notified measure was covered by Directive 2003/54/EC. (1) In relation to that plea, the applicants claim that: — The Commission made a manifest error in having interpreted Article 11(4) of Directive 2003/54/EC as not requiring the national authorities to put forward, and prove the existence of, reasons concerning security of supply in order to be able to adopt measures which are incompatible with the rules pursuing harmonisation in the directive. Such an interpretation is in breach of the obligation to give a restrictive interpretation to a provision establishing an exception. — The Commission’s interpretation of Article 11(4) of Directive 2003/54/EC would mean that Member States could make indefinite use of a rule which may, by virtue of Article 114 of the Treaty, be of only transitory application. The Commission’s interpretation is therefore incompatible with the legal basis of Directive 2003/54/EC. — The Commission made a manifest error in having calculated the 15 % threshold laid down in Directive 2003/54/EC in such a way that it does not have the practical effect sought by the European Union legislature. — The Commission made a manifest error given that there are no problems of security of supply in Spain such as to justify the adoption of the notified measure. — The notified measure does not comply with the conditions laid down in Article 3(2) of Directive 2003/54/EC, which provides that public service obligations must be clearly defined, transparent, non discriminatory, verifiable and must guarantee equality of access for EU electricity companies to national consumers.