ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 285/51

Action brought on 10 September 2008 — Portugal v Commission

(Case T-378/08)

(2008/C 285/91)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by L.Inez Fernandes and J. de Oliveira, Agents)

Defendant: Commission of the European Communities

Form of order sought

— Principally, a declaration that the notice of payment MARKT/C2/PMS/bmgD(2008) 13692 issued by the Director-General of Directorate-General Internal Market and Services of 15 July 2008 under the heading ‘demand for payment of the periodic penalty payable by the Portuguese Republic in compliance with the judgment given in Case C-70/06 Commission v Portuguese Republic’ is invalid;

— alternatively, a declaration that that notice is invalid, in so far as its effects extend beyond 29 January 2008;

— an order that the Commission of the European Communities should pay the costs or, if the Court of First Instance should reduce the amount of the periodic penalty, an order that each party should bear its own costs.

Pleas in law and main arguments

The Portuguese Republic claims that it has fully complied with the judgments of the Court of Justice by adopting Law No 67/2007 expressly repealing Decree-Law No 48051.

The Portuguese Republic further claims that the Director-General of DG Internal Market and Services had no power to adopt the contested measure, which failed to have regard to the Portuguese Republic's rights of the defence, fails to state the reasons on which it is based and was adopted in breach of essential procedural requirements.
EN Official Journal of the European Union C 285/48

Appeal brought on 26 August 2008 by Chantal De Fays against the judgment of the Civil Service Tribunal delivered on 17 June 2008 in Case F-97/07 De Fays v Commission

(Case T-355/08 P)

(2008/C 285/87)

Language of the case: French

Parties

Appellant: Chantal De Fays (Bereldange, Luxembourg) (represented by F. Moyse, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— Declare the present appeal admissible;

— set aside the judgment under appeal;

— grant the application for annulment made by the appellant before the Civil Service Tribunal;

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

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the judgment of the Civil Service Tribunal (‘the CST’) of 17 June 2008 in Case F-97/07 dismissing her action against the decision of the appointing authority of 21 November 2006 applying Article 60 of the Staff Regulations.

The appellant puts forward two pleas in law in support of her appeal:

In first place, the appellant is of the view that the CST erred in law in its definition of the temporal scope of the decision of 21 November 2006 by which the administration, first, found that the appellant had been regularly absent from 19 October 2006 and, secondly, withheld her remuneration for the whole of the period not covered by annual leave. The appellant submits that the CST considered that the effects of the contested decision extended only from 19 October 2006 until 13 December 2006, that is, up to the point at which the administration received a medical certificate justifying the appellant's absence, whereas, in fact, the effects of that decision continue up to the present. That error of law is the outcome of an erroneous judicial assessment of the facts, the inaccuracy of which, in the appellant's view, is attributable to the documents on the case file.

In second place, the appellant states that the fact that the CST based its decision that the administration was entitled to continue the suspension of the remuneration which was due to the appellant on the existence of an implied decision is an error of law, entailing breach of the second paragraph of Article 25, Article 59(1) and Article 60 of the Staff Regulations, the internal provisions of the Commission on the exercise of the powers conferred on the appointing authority and the rights of defence.
EN Official Journal of the European Union C 313/45

Action brought on 30 September 2008 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)

(Case T-429/08)

(2008/C 313/82)

Language in which the application was lodged: English

Parties

Applicant: Grain Millers, Inc. (Eden Prairie, United States) (represented by: L.-E. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grain Millers GmbH & Co. KG (Bremen, Germany)

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 23 July 2008 in case R 1192/2007-2; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘GRAIN MILLERS’ for goods in classes 29, 30 and 31 — application No 363 8657

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: German ‘business designation’‘GRAIN MILLERS’ and its figurative version

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

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 40/94 as the Board of Appeal has overestimated the value of the evidence submitted by the other party to the proceedings before the Board of Appeal in order to substantiate prior rights over the earlier trade mark.
EN Official Journal of the European Union C 301/53

Action brought on 25 September 2008 — S.F. Turistico Immobiliare v Council and Commission

(Case T-408/08)

(2008/C 301/89)

Language of the case: Italian

Parties

Applicant: S.F. Turistico Immobiliare Srl (Orosei, Italy) (represented by: L. Marcialis, lawyer)

Defendant: Council of the European Union and Commission of the European Communities

Forms of order sought

Principal forms of order sought:

— Declare null and void the decision of the Commission of the European Communities C(2008) 2997 of 2 July 2008 on a State aid scheme: ‘Misuse of aid measure No N 272/98, Regional Act No 9 of 1998’;

— Order the Commission to pay the costs of the proceedings, including those incurred by the applicant.

Alternative form of order sought:

— Annul in part the contested decision, in so far as it declares the entire aid scheme incompatible with the common market, ‘unless the recipient of the aid submitted an application for aid under the scheme before starting work on an initial investment project’, and orders the Republic of Italy to recover the relevant amounts, without excepting the aid in so far as it provides an incentive to keep the resulting costs — borne by the recipient before the aid application was submitted — within the limits provided for under the de minimis aid provisions.

Further alternative form of order sought:

— Declare unlawful point 4.2 of the Council Guidelines on national regional aid (98 C 74/06), according to which ‘[i]n addition, aid schemes must lay down that an application for aid must be submitted before work is started on the projects’, in so far as it excludes from eligibility all aid intended in favour of recipients, without excepting that part of the aid relating to investments, made after submission of the application, which are functionally or structurally autonomous.

— Annul in part the contested decision, in so far as it orders full recovery by the Republic of Italy of the amounts previously disbursed, without excepting the aid in so far as it provides an incentive for costs to be borne by the recipient after submission of the application for aid and relating to portions which are functionally or structurally autonomous in relation to the project undertaken.

Pleas in law and main arguments

The contested decision in the present case is the same as that at issue in Case T-394/08 Regione Sardegna v Commission.

The pleas in law and principal arguments are similar to those put forward in Case T-394/08.

The applicant pleads in particular the unlawfulness, within the meaning of Article 241 EC, of point 4.2 of the Council Guidelines on national regional aid (98 C 74/06), in so far as it is wholly counter to the rationale underlying the Community aid policies, especially in a case characterised by such special features, to infer from the completion of a small part (roughly 20 %) of the planned work that the rest of the work is wholly ineligible for aid, even though that work had duly been commenced during a time-period subsequent to that established by the guidelines in question.
EN Official Journal of the European Union C 313/51

Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (WORLD CUP GERMANY)

(Case T-447/08)

(2008/C 313/91)

Language in which the application was lodged: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC, A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ferrero OHG mbH (Stadtallendorf, Germany)

Form of order sought

— Annul, in whole or in part, the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 1469/2005-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘WORLD CUP GERMANY’ for goods and services in classes 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 — Community trade mark registration No 2 152 635

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) Infringement of Article 73 and 74(1) of Council Regulation No 40/94 in so far as the Board of Appeal has based, largely, its decision on Article 7(1)(c) of Council Regulation No 40/94, a provision which was neither invoked by the other party to the proceedings before the Board of Appeal, nor relied upon by the Cancellation Division; (ii) Alternatively, infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal failed to consider the registered Community trade mark subject of the application for a declaration of invalidity as a whole, through the eyes of the average consumer and to apply the relevant law relating to the assessment of descriptiveness of the goods and/or services applied for; and (iii) Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of the necessary distinctive character.
EN Official Journal of the European Union C 313/40

Action brought on 29 September 2008 — EAÜ v Commission

(Case T-416/08)

(2008/C 313/73)

Language of the case: English

Parties

Applicant: Eesti Autorite Ühing (EAÜ) (Tallinn, Estonia) (represented by: M. Favart, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) relating to a proceeding under Article 81 EC and Article 53 EEA. Precisely, the applicant contests the Commission findings in Article 3 of the contested decision stating that territorial delineations of the reciprocal representation mandates granted by one authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The pleas in law and main arguments raised by the applicant are identical to those raised by the applicant in Case T-415/08 IMRO v Commission.
EN Official Journal of the European Union C 327/39

Action brought on 19 October 2008 — Imagion v OHIM (DYNAMIC HD)

(Case T-463/08)

(2008/C 327/68)

Language of the case: German

Parties

Applicant: Imagion AG (Trierweiler, Germany) (represented by: H. Blatzheim, lawyer)

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

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 13 August 2008 (Case R 488/2008-4); and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘DYNAMIC HD’ for services in Classes 35, 38, 41, 42 and 45 (No 6 092 241)

Decision of the Examiner: Refusal, in part, of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the word mark ‘DYNAMIC HD’ is neither descriptive, nor does it lack the necessary distinctive character;

— Infringement of Article 7(3) of Regulation No 40/94 in that the trade mark applied for has acquired distinctive character through use;

— Breach of the duty to state reasons;

— Breach of the principle of equal treatment.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 6/32

Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission

(Case T-405/08)

(2009/C 6/66)

Language of the case: German

Parties

Applicant: SPAR Österreichische Warenhandels-AG (represented by: A.-H. Bischke, S. Brack und D. Bräunlich, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the defendant's decision of 23 June 2008;

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

Pleas in law and main arguments

The applicant has brought an action against the decision of the Commission of 23 June 2008 in Case COMP/M.5047 — REWE/ADEG, by which the Commission approved the acquisition by Billa AG, a company in the German REWE Group, of sole control of ADEG Österreich Handelsaktiengesellschaft. The applicant submits that the Commission should not have approved the concentration in accordance with Article 6(2) of the EC Merger Regulation (1), since the undertakings given were not sufficient to remove what the applicant considers to be existing competition concerns.

In support of its action, the applicant putting forward two pleas in law:

First, the applicant submits that Article 6(1)(c) of the EC Merger Regulation has been infringed because the Commission erred in law when it failed to open Phase II proceedings and approved the proposed concentration ‘REWE/ADEG’ subject to conditions in Phase I. The Commission failed to sufficiently investigate the effect the proposed concentration would have on competition and therefore also misjudged the serious competition concerns arising in connection with the proposed concentration. In detail, the infringement consists of the following manifest errors of assessment:

— the Commission misjudged the effect of the proposed takeover on competition in the retail market in the whole of Austria, because if wrongly assumed that a number of competitors would remain in place and underestimated ADEG's competitive potential;

— the Commission wrongly determined and wrongly assessed the market position of the parties at regional and local level;

— the undertakings accepted by the Commission are not appropriate for removing the existing competition concerns, since they were assessed on the wrong basis;

— the Commission wrongly determined and wrongly assessed the effect on competition in the labour markets.

Second, during the merger control proceedings, the Commission infringed essential formal requirements. It infringed the applicant's and the Member States' right to a fair hearing when it failed to market test the last undertaking proposed by the parties and failed to forward it to the Member States. Moreover, the Commission failed to give sufficient reasons for its decision.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).
EN Official Journal of the European Union C 32/45

Action brought on 28 November 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant (AGATHA RUIZ DE LA PRADA)

(Case T-522/08)

(2009/C 32/87)

Language in which the application was lodged: Spanish

Parties

Applicant: Agatha Ruiz de la Prada de Sentmenat (Madrid, Spain) (represented by: R. Bercovitz Álvarez, 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: Mary Quant Ltd (Birmingham, United Kingdom)

Form of order sought

— Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’), and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and

— the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Agatha Ruiz de la Prada de Sentmenat.

Community trade mark concerned: Figurative mark representing a pink flower with a yellow centre on a light green background with the wording AGATHA RUIZ DE LA PRADA (application No 3.291.234) for goods in Classes 3, 4, 5, 8, 9, 11, 12, 14, 16, 18, 19, 20, 21, 24, 25, 27 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: MARY QUANT Cosmetics Japan Ltd.

Mark or sign cited in opposition: Figurative mark representing a black flower with a black centre surrounded by a white outline: British trade marks for goods in Classes 9, 14, 16, 18, 20, 21, 24, 25 and 26 and Community trade mark for goods in Classes 9, 14, 16, 18, 20, 24, 25 and 26.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 19/35

Action brought on 20 November 2008 — Toqueville v OHIM — Schiesaro (TOCQUEVILLE 13)

(Case T-510/08)

(2009/C 19/66)

Language in which the application was lodged: Italian

Parties

Applicant: Toqueville Srl (Milan, Italy) (represented by: S. Bariatti, I. Palombella and E. Cucchiara, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marco Schiesaro (Milan, Italy)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM of 26 August 2008 in Case R 829/2008-2 Toqueville Srl v M. Schiesaro.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark ‘TOCQUEVILLE 13’ (Community trade mark No 1.406.982) to designate goods and services in Classes 25, 41 and 42.

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: Marco Schiesaro.

Decision challenged before the Board of Appeal: the decision of the Cancellation Division to grant the application for partial revocation of the trade mark in question.

Decision of the Board of Appeal: declaration that the appeal is inadmissible and rejection of a request for restitutio in integrum as regards the time-limit for filing an appeal against the decision of the Cancellation Division.

Pleas in law: Infringement of Articles 73 and 78 if Regulation (EC) No 40/94 on the Community trade mark, Articles 2 and 9 of Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market and Article 50 of Regulation (EC) No 2868/95 implementing Regulation (EC) No 40/94.
—

Infringement and misapplication of Article 81 EC and Article 23 of Regulation (EC) No 1/2003, and of the Guidelines on the method of setting fines. It is submitted in that regard that the Commission: — determined the basic amount and the additional amount of the fine in a way that was unreasonable and contrary to the principle of equal treatment and the principle of proportionality. In fact, the percentage applied by the Commission in order to determine the basic amount (and the additional amount) of the fine was 17 % of the value of the sales, on the ground that ENI was responsible for the fixing of prices and the exchange of information, whilst the coefficient applied by the Commission to other undertakings which participated in the cartel and which also shared products and/or customers was practically identical (18 %). — disregarded the principle of legal certainty as regards its application of a repeat offender surcharge, even though the offences committed in the 1980s by companies controlled by ENI could not be attributed to ENI and were not blamed on ENI at the time of the respective decisions. Furthermore, application of a repeat offender surcharge is unjustifiable in view of the length of time which has passed between the old offences and those covered by the Decision. — failed to categorise as mitigating circumstances the applicant's limited participation in the agreement and the lack of implementation of the decisions made in the course of the ‘technical meetings’. ENI adds that it provided evidence of Mr Monti's belief that the meetings that he was attending were entirely legitimate in that they were organised by the European Wax Federation and, in any case, of the lack of any intention by ENI to commit an infringement; the information received from its employee did not enable it to appreciate the anti-competitive implications of those meetings.