ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 90/37

Action brought on 26 February 2009 — Kadi v Commission

(Case T-85/09)

2009/C 90/56

Language of the case: English

Parties

Applicant: Yassin Abdullah Kadi (represented by: D. Anderson, QC, M. Lester, Barrister, G. Martin, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— annul Regulation No 1190/2008, in so far as it concerns the applicant;

— order the Commission to pay the applicant’s costs of this action.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Commission Regulation No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (1) in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. Regulation no 881/2002 was annulled by the Court of Justice in joined cases C-402/05 and C-415/05, Kadi and al Barakaat v Council and Commission (2)

The applicant puts forward four pleas in law in support of its claims.

First, the applicant submits that the contested regulation lacks a sufficient legal basis because it appears to amend Regulation 881/2002 without relevant determination by United Nations which, in the applicant’s opinion, is precondition for the amendment of that regulation.

Second, the applicant claims that the contested regulation violates his rights of defence, both the right to an effective hearing and the right to effective judicial protection, and fails to remedy the infringements of those rights as found by the Court in joined cases C-402/05 and C-415/05. He further contends that the contested regulation provides no procedure for communicating to the applicant the evidence on which the decision to freeze his assets was based, or for enabling him to comment meaningfully on that evidence.

Third, the applicant submits that the Commission failed to provide compelling reasons for maintaining the asset freeze against the applicant, in violation of its obligation under Article 253 EC.

Fourth, it claims that the Commission failed to undertake an assessment of all relevant facts and circumstances in deciding whether to enact the contested regulation and therefore manifestly erred in its assessments.

Fifth, the applicant contends that the contested regulation constitutes an unjustified and disproportionate restriction on his right to property which is not justified by compelling evidence.

(1) OJ 2008 L 322, p. 25

(2) Not yet reported in ECR
EN Official Journal of the European Union C 82/28

Action brought on 19 January 2009 — Stella Kunststofftechnik v OHIM

(Case T-27/09)

(2009/C 82/50)

Language in which the application was lodged: German

Parties

Applicant: Stella Kunststofftechnik GmbH (Eltville, Germany) (represented by: M. Beckensträter, 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: Stella Pack Sp. z o. o. (Lubartow, Republic of Poland)

Form of order sought

— annul the decision of the Fourth Board of Appeal of 13 November 2008, notified on 19 November 2008, and hold that the application of 22 December 2006 for a declaration of revocation ought to have been dismissed as being inadmissible;

— in the alternative, suspend the decision on the application for a declaration of revocation of 22 December 2006 until the opposition proceedings in opposition B 863177 have been concluded in law, and at the same time annul the decision of 13 November 2008 and that of the Cancellation Division of 27 February 2008;

— order the intervener to pay the recoverable costs, including those of the initial proceedings and of the defendant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of revocation has been sought: the word mark ‘Stella’ for goods in Classes 6, 8, 16, 20 and 21 (Community trade mark No 15 479)

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of revocation: Stella Pack Sp. z o. o

Decision of the Cancellation Division: declaration of revocation of the Community trade mark concerned for certain goods in Classes 6, 8, 16 and 20

Decision of the Board of Appeal: dismissal of the applicant's appeal

Pleas in law: Failure to have regard for the conditions governing admissibility in Regulation (EC) No 40/94 (1) and Regulation (EC) No 2868/95 (2) which must automatically be complied with in proceedings for a declaration of revocation.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 102/31

Action brought on 27 February 2009 — Mojo Concerts and Amsterdam Music Dome Explotatie v Commission of the European Communities

(Case T-90/09)

2009/C 102/46

Language of the case: Dutch

Parties

Applicants: Mojo Concerts BV (Delft, Netherlands) and Amsterdam Music Dome Explotatie BV (Delft, Netherlands) (represented by S. Beeston, Lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of the Commission Decision of 21 October 2008 on the investment of the municipality of Rotterdam in the Ahoy complex (State aid C 4/2008 (ex N 97/2007, ex CP 91/2007).

They submit that the Commission’s reasoning in the contested decision discloses a manifestly incorrect assessment and that the steps in the reasoning are incorrect and/or inadequately substantiated.

First, the applicants argue that the value of the rent and of the shares in Ahoy which have been established are not in accordance with market value. Furthermore, an investment which only leads to value retention can indeed produce an advantage. Moreover, when determining the value of the rent and of the shares, no account was taken of the investment. According to the applicants, the contractual restrictions between the municipality and the operator would not prevent the investment from producing added value. Finally, the benefit-sharing arrangement does not provide an additional guarantee of the market conformity of the transactions.

The applicants also allege breach of procedure and defective reasoning: the arguments submitted by them were not, or only inadequately, taken into consideration by the Commission in the contested decision; parts of the file were wrongly classified as confidential; and the applicants were not informed of all the elements in the file, which constitutes an infringement of the right to be heard.
EN Official Journal of the European Union C 102/25

Action brought on 18 February 2009 — Compagnie de Saint-Gobain v Commission

(Case T-73/09)

2009/C 102/39

Language of the case: French

Parties

Applicant: Compagnie de Saint-Gobain (Courbevoie, France) (represented by: P. Hubert and E. Durand, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of the European Commission C(2008) 6815 final relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.125 — Car glass), together with the grounds on which the operative part of the decision was reached, in so far as the Compagnie de Saint-Gobain was made an addressee of that decision, and draw from that all the necessary consequences as regards the amount of the fine;

— in the alternative, whether or not the Compagnie de Saint-Gobain may be an addressee of the decision, reduce the amount of the fine imposed on the companies belonging to the Saint-Gobain group;

— order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2008) 6815 final of 12 November 2008 in Case COMP/39.125 — Car glass by which the Commission found that certain undertakings had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by sharing contracts for the supply of car glass and by coordinating their pricing policies and supply strategies on the European market for car glass.

In support of its action, the applicant relies on four pleas in law alleging:

— infringement of Article 23(2) of Regulation No 1/2003 (1) and of the principle that penalties are personal inasmuch as the Compagnie de Saint-Gobain was made an addressee of the contested decision in its capacity as the parent company of the company Saint-Gobain Glass France SA without having personally and directly participated in the infringement;

— failure to state reasons, infringement of Article 23(2) of Regulation No 1/2003 and of the principle that penalties are personal as the Commission did not establish that the whole of the consolidated turnover of the Saint-Gobain group could be used as a basis for the penalty;

— infringement of the principles of the protection of legitimate expectations and of non-retroactivity in so far as the Commission applied new guidelines dating from 2006 relating to the method of setting fines (2) retroactively to events which took place prior to their entry into force and were fully over before that date;

— infringement of Article 23(2) of Regulation No 1/2003 and of the principle of proportionality as no previous infringements may legitimately be taken into account.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).
EN Official Journal of the European Union C 113/43

Action brought on 23 March 2009 — Protege International v Commission

(Case T-119/09)

2009/C 113/86

Language of the case: French

Parties

Applicant: Protege International Ltd (London, United Kingdom) (represented by: D. Shefet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision adopted by the Commission on 23 January relating to a proceeding under Article 82 of the EC Treaty (Case COMP/39.414 — Protégé International/Pernod Ricard).

Pleas in law and main arguments

The applicant seeks annulment of the Commission decision of 23 January 2009 whereby the Commission, in making a finding of no sufficient Community interest to continue with the investigation, rejected the complaint brought by the applicant against Pernod Ricard regarding alleged abuse of dominant position committed by the latter in the Irish whiskey market consisting, first, of legal proceedings filed by Pernod Ricard against the applicant with regard to the application for registration as trade marks of ‘WILD GEESE’, ‘WILD GEESE RARE IRISH WHISKEY’ and ‘WILD GEESE IRISH SOLDIERS AND HEROS’ by the applicant and, second, in a refusal to supply.

In support of its action, the applicant claims that

— the legal proceedings initiated by Pernod Ricard had the aim, not of protecting Pernod Ricard’s intellectual property rights in its trade mark ‘WILD TURKEY’, since no risk of confusion exists between the opposing marks, but that of eliminating the applicant as a competitor of Pernod Ricard in the Irish whiskey market;

— there was an abuse of dominant position when Pernod Ricard refused to provide Irish whiskey to the applicant by reason of the latter’s refusal to accept conditions restricting sale to markets approved by Pernod Ricard;
EN Official Journal of the European Union C 141/44

Action brought on 20 March 2009 — La Sonrisa de Carmen and Bloom Clothes v OHIM — Heldmann (BLOOMCLOTHES)

(Case T-118/09)

2009/C 141/94

Language in which the application was lodged: Spanish

Parties

Applicants: La Sonrisa de Carmen SL (Vigo, Spain), Bloom Clothes SL (Madrid, Spain) (represented by: S. Mígel Pereira, 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: Harald Heldmann (Hamburg, Germany)

Form of order sought

— Annul the decision of the Board of Appeal of 8 January 2009 in Case R 695/2008-2 and order the registration of the mixed mark BLOOMCLOTHES as a Community trade mark in classes 25 and 35.

Pleas in law and main arguments

Applicant for a Community trade mark: La Sonrisa de Carmen SL

Community trade mark concerned: Mixed mark consisting of the term ‘BLOOMCLOTHES’ with the figurative element of a toadstool (Application No 5 077 128) for goods and services in classes 18, 25 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Harald Heldmann.

Mark or sign cited in opposition: Word mark ‘BLOOM’ (German trade mark No 30 439 990) for goods in class 25.

Decision of the Opposition Division: Partial rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark (OJ 1994 L 11, p. 1), as replaced by 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 129/19

Action brought on 6 April 2009 — Epcos v OHIM — Epco Sistemas (EPCOS)

(Case T -132/09)

2009/C 129/33

Language in which the application was lodged: German

Parties

Applicant: Epcos AG (Munich, Germany) (represented by: L. von Zumbusch, 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: Epco Sistemas, SL (Constanti, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of 19 January 2009, R 1088/2008-2;

— annul Decision No B 979767 of the Opposition Division of 22 May 2008 on the opposition proceedings brought by the opposing party, in so far as the opposition was upheld in respect of the goods ‘NTC-Thermistoren’, ‘PTC-Thermistoren’ and ‘Sensoren’, and reject the opposition in its entirety;

— order the defendant and the opposing party to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘EPCOS’ for goods in Classes 6 and 9 (application No 4 133 799)

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

Mark or sign cited in opposition: Spanish figurative mark ‘E epco SISTEMAS’ for goods in Class 9

Decision of the Opposition Division: Upholding in part of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) and Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule 19(3) of Regulation (EC) No 2868/95, (1) since the opposition trade mark has not been used within the five years prior to publication of the trade mark applied for and there is no likelihood of confusion between the two opposing marks.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 141/56

Action brought on 16 April 2009 — Martinet v Commission

(Case T-163/09)

2009/C 141/113

Language of the case: French

Parties

Applicant: Yvon Martinet (Paris, France) (represented by: J.-L. Fourgoux, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision rejecting Mr Martinet’s candidature for the post of alternate member of the Board of Appeal of the European Chemicals Agency;

— Order the European Commission, Enterprise and Industry Directorate-General, Pre-selection Committee for the Board of Appeal of the European Chemicals Agency, to carry out a genuine and in-depth examination of the file containing Mr Martinet’s application, as reparation in kind for the damage suffered as a result of the loss of an opportunity;

— In any case, order the European Commission, Enterprise and Industry Directorate-General, Pre-selection Committee for the Board of Appeal of the European Chemicals Agency, to pay all the costs.

Pleas in law and main arguments

The applicant seeks annulment of the Commission decision rejecting his candidature for the post of alternate member of the Board of Appeal of the European Chemicals Agency (ECHA) on the ground that his candidature had not been considered, since it had not been received by the section responsible for the selection process, as a result of being sent to the Vice-President of the Commission, Mr G. Verheugen, at an address different from the exact address stated in the call for expression of interest, published in the Official Journal of the European Union (OJ 2008 C 41A, p. 8).

In support of its action, the applicant, with regard to the application for annulment, claims that:

— the contested decision does not satisfy the obligation to state reasons which constitutes an essential formality which must be complied with;

— the contested decision is based on a substantive factual inaccuracy, the candidature having been sent to the address stated in the call for candidatures;
EN Official Journal of the European Union C 141/55

Appeal brought on 20 April 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal of 18 February 2009 in Case F-42/08, Marcuccio v Commission

(Case T-157/09 P)

2009/C 141/112

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

The appellant claims that the Court of First Instance should:

— set aside in its entirety, without any exception whatsoever, the order of the Civil Service Tribunal (First Chamber) of 18 February 2009 in Case F-42/08 Marcuccio v Commission;

— declare that the action brought before the Civil Service Tribunal in respect of which the order under appeal was made was perfectly admissible, and: — grant in their entirety, without any exception whatsoever, the forms of order sought by the appellant before the Civil Service Tribunal which, for all legal intents and purposes, are to be deemed to be reproduced in the present application; — order the Commission to repay the appellant all costs, fees and other expenses incurred by the latter in connection with the proceedings before the Civil Service Tribunal, together with the costs incurred by the appellant in the present appeal proceedings; or, in the lesser alternative: — refer the case back to the Civil Service Tribunal for a decision on the merits, to be taken by that Tribunal sitting in a different formation.

Pleas in law and main arguments

The present appeal has been brought against the order of the Civil Service Tribunal of 18 February 2009 dismissing as manifestly inadmissible the action brought by the appellant for compensation for the damage which he purportedly suffered as a result of the fact that the Commission sent a note intended for him to a fax number which was not at his disposal.

In support of his claims, the appellant alleges a total failure to state reasons in relation to the following:

— the inadmissibility of the action for compensation for damage;

— the inadmissibility of the forms of order seeking, inter alia, confirmation by the Civil Service Tribunal that the event which had given rise to the damage was unlawful;

— the date on which the defence was lodged: on this point, it is also alleged that the Civil Service Tribunal committed a procedural error by failing to comply with the obligation to discount the content of the defence where that document is submitted out of time, such that the interests of the applicant would be seriously compromised.

The appellant also alleges breach of the rules governing the right to a fair hearing; infringement of Article 6 of the European Convention on Human Rights; and infringement of Article 47 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 153/42

Action brought on 11 April 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIACTIVE)

(Case T-152/09)

2009/C 153/82

Language in which the application was lodged: English

Parties

Applicants: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Valfeuri Pates Alimentaires SA (Wittenheim, France)

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 3 February 2009 in case R 1661/2007-4; and

— Order OHIM to pay the costs

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 word mark “PROTIACTIVE”, for goods in classes 5, 29 and 30 — application No 4 843 348

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

Mark or sign cited: German trade mark registration of the word mark “PROTI” for goods in classes 29 and 32; German trade mark registration of the figurative mark “PROTIPOWER” for goods in classes 5, 29 and 32; German trade mark registration of the word mark “PROTIPLUS” for goods in classes 5, 29 and 32; German trade mark registration of the trade word “PROTITOP” for goods in classes 5, 29, 30 and 32; Community trade mark registration of the word mark “PROTI” for goods in classes 5 and 29

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (1) (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal failed to assess the opposition on its merits; Infringement of Article 74(2) of Council Regulation 40/94 (which became Article 76(2) of Council Regulation 207/2009) as the Board of Appeal failed to exercise discretion or at least failed to state reasons how it exercised discretion; Misuse of power as the Board of Appeal erred by not taking into account documents and evidence submitted by the applicant.

(1) Replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ L 78, p. 1
EN Official Journal of the European Union C 180/55

Action brought on 25 May 2009 — Heinrich Deichmann-Schuhe GmbH& Co. v OHIM (Representation of a curved band with dotted lines)

(Case T-202/09)

2009/C 180/103

Language in which the application was lodged: Gemran

Parties

Applicant: Heinrich Deichmann-Schuhe GmbH& Co. (Essen, Germany) (represented by C. Rauscher, 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 3 April 2009 in Case R 224/2007-4; and

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

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a curved band with dotted lines for goods in Classes 10 and 24 (International Registration designating the European Community, No W 0881226)

Decision of the Examiner: Refusal of protection

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 40/94 (now Article 7(1)(b) of Regulation No 207/2009 (1)) in finding the mark to be devoid of any distinctive character

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