ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 315/43

Action brought on 31 October 2007 — Basell Polyolefine v Commission

(Case T-399/07)

(2007/C 315/81)

Language of the case: German

Parties

Applicant: Basell Polyolefine GmbH (Wesselig, Germany) (represented by: D. Seeliger, E. Wagner and I. Liebach, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 23 August 2007;

— in the alternative, annul the Commission Decision of 23 August 2007 in so far as it also refuses partial access to documents;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant challenges the Commission Decision of 23 August 2007, by which the Commission refuses its application for access to Commission documents concerning the decision in Case COMP/E-2/37.857 — Organic peroxides.

The applicant alleges, first of all, breach of Article 2(1) of Regulation (EC) No 1049/2001 (1). The applicant takes the view that, as a legal person with its seat in a Member State, it has a right to access to Commission documents and that this right under Article 2(3) of Regulation No 1049/2001 is also applicable to the documents requested in the context of a cartel investigation.

The applicant also alleges breach of the first and third indents of Article 4(2) of Regulation No 1049/2001, on the ground that no commercial interests that objectively warrant protection would be adversely affected by access to the documents and currently no investigation into the cartel proceedings in question is taking place. Furthermore, it is submitted in this connection that there is an overriding public interest in the disclosure of the documents applied for.

Furthermore the refusal of access to the documents applied for also infringes Article 255 EC. The decision is also in breach of Article 6(2) EU in conjunction with Article 42 of the EU Charter of Fundamental Rights.

The applicant also alleges breach of Article 4(6) in conjunction with Article 4(2) of Regulation No 1049/2001, on the ground that it at least has a right to partial access to the documents applied for. Finally, these provisions have also been breached on account of the Commission's failure to fulfil its duty to examine every document specifically and individually.

(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).
EN Official Journal of the European Union C 22/46

Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)

(Case T-425/07)

(2008/C 22/87)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by D. Rzążewska, legal adviser)

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 September 2007 in Case R 1274/2006-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘100’ for goods and services in Classes 16, 28 and 41 (Application No 3 875 408).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1) since, in the applicant's submission, the sign ‘100’ is neither descriptive nor devoid of distinctive character in relation to the goods and services indicated.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 8/22

Action brought on 8 November 2007 — CMB and Christof v Commission and EAR

(Case T-407/07)

(2008/C 8/39)

Language of the case: English

Parties

Applicants: CMB Maschinenbau & Handels GmbH (Gratkorn, Austria) and J. Christof GmbH (Graz, Austria) (represented by: A. Petsche, N. Niejahr and Q. Azau, lawyers, and F. Young, Solicitor)

Defendants: Commission of the European Communities and European Agency for Reconstruction

Form of order sought

— Annul the decision;

— order the EAR to produce certain documents;

— order the EAR to pay damages in respect of the loss suffered by the applicants in the amounts of EUR 26 862,17 and EUR 3 197 968,80 for costs and lost profit, plus compensatory interest from the date on which the damage materialised;

— order the EAR to pay interest on the damages from the date of judgment;

— order the EAR and the Commission to pay their own costs and the applicants' costs in connection with these proceedings.

Pleas in law and main arguments

The applicants contest the European Agency for Reconstruction's decision of 29 August 2007 confirming the rejection of the applicants' bid and the award of the contract to another tenderer relating to the tender notice EuropeAid/124192/D/SUP/YU (OJ 2006/S 233-248823) for the supply, delivery, installation, after-sales service and training in the use of supplies for treatment and transport of medical waste throughout the Republic of Serbia (excluding Kosovo). The applicants further request compensation for the alleged damages caused by the decision.

In support of their application, the applicants submit that the contracting authority violated the award criteria for the tender, as the offer of the successful tenderer did not meet the technical specifications.

Furthermore, the applicants allege that the contracting authority violated the applicable procurement procedure, that it did not state reasons and that it breached the principle of sound administration.
EN Official Journal of the European Union C 51/53

Action brought on 21 December 2007 — Philips Lighting Poland and Philips Lighting v Council

(Case T-469/07)

(2008/C 51/97)

Language of the case: English

Parties

Applicants: Philips Lighting Poland S.A. (Pila, Poland) and Philips Lighting BV (Eindhoven, Netherlands) (represented by: M. L. Catrain González, lawyer, and E. Wright, Barrister)

Defendant: Council of the European Union

Form of order sought

— Annul the contested regulation in its entirety or in so far as it affects the applicants;

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

Pleas in law and main arguments

The applicants, who are producers of integrated fluorescent lamps (CFL-i) in the Community, seek the annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (1).

In support of their application, the applicants submit that the Council violated Articles 3(1), 9(4) and 11(2) of the Basic Regulation (2) by imposing anti-dumping duties where it has not been demonstrated that the expiry of the measures would be likely to lead to a continuation or recurrence of injury to the Community industry.

The applicants further allege that the Council committed an error of law in relying on Article 9(1) of the Basic Regulation in a situation that does not fall within the scope of that article, as the complaint leading to the investigation had not been withdrawn.

Finally, the applicants invoke a violation of Article 253 EC in that the contested regulation is inadequately reasoned in respect of the level of support from Community producers and the conclusion on Community interest.

(1) OJ 2007 L 272, p. 1.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).
EN Official Journal of the European Union C 37/30

Action brought on 7 December 2007 — Behring & Söhne v Commission

(Case T-445/07)

(2008/C 37/46)

Language of the case: German

Parties

Applicant: Behring & Söhne GmbH & Co. KG (Wuppertal, Germany) (represented by: P. Niggemann and K. Gaßner, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 (COMP/E-1/39.168 — Haberdashery: fasteners);

— in the alternative, the reduction of the fine imposed on the applicant in the contested decision to a symbolic penalty or to an amount that is in any event appropriate;

— that the defendant be ordered to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — Haberdashery: fasteners. In the contested decision, a fine was imposed on the applicant and other undertakings for infringement of Article 81 EC. In the Commission's view, the applicant participated in the coordination of price increases, together with the exchange of confidential information as to prices and the implementation of price increases on the markets for ‘other fasteners’ and application machines.

The applicant relies on four pleas in law in support of its claim.

It submits, first, that the contested decision infringes its right to a fair hearing, since it had no opportunity to comment on a series of meetings held in relation to the so-called ‘Basle group’ and the ‘Wuppertal group’, on which the Commission based its allegations relating to the coordination of price increases and the exchange of confidential information as to prices and the implementation of price increases.

Secondly, it claims that the alleged infringements of the law relating to cartels have ceased, since the applicant ended its participation in the ‘Basle group’ and the ‘Wuppertal group’ as early as the beginning of 1997.

The applicant also maintains that there was no infringement of Article 81 EC, since the Commission has failed to adduce the requisite proof of the applicant's participation in any arrangements.

Lastly, the applicant claims that the calculation of the fine is factually incorrect. In that regard, it alleges in particular that the findings of the defendant, both as to the length of the purported infringement by the applicant, and as to the seriousness of the infringement, are incorrect and that the amount of the fine is disproportionate.
EN Official Journal of the European Union C 51/58

Action brought on 21 December 2007 — Ford Motor v OHIM — Alkar Automotive (CA)

(Case T-486/07)

(2008/C 51/105)

Language in which the application was lodged: English

Parties

Applicant: Ford Motor Co. (Dearborn, United States) (represented by: R. Ingerl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Alkar Automotive SA (Derio, Spain)

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 25 October 2007 (Case R 85/2006-4);

— annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2005 (Opposition No B 684052);

— order OHIM to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: Alkar Automotive SA

Community trade mark concerned: The figurative mark ‘CA’ for, inter alia, goods in classes 9, 11 and 12 — application No 3 186 764

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

Mark or sign cited: The Community word and figurative marks ‘KA’ for goods and services in classes 9, 12, 14, 16, 18, 20, 21, 27, 32 and 37

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, as there is a likelihood of confusion between the conflicting trade marks due to the phonetic and visual similarity between ‘KA’ and ‘CA’, the identity of the goods and the enhanced distinctiveness of the earlier marks.
EN Official Journal of the European Union C 51/57

Action brought on 21 December 2007 — Olive Line International v OHIM — Knopf (o-live)

(Case T-485/07)

(2008/C 51/104)

Language in which the application was lodged: English

Parties

Applicant: Olive Line International, SL (Madrid, Spain) (represented by: P. Koch Moreno, lawyer)

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

Other party to the proceedings before the Board of Appeal: Reinhard Knopf (Malsch, Germany)

Form of order sought

— Declare that the decision dated 26 September 2007 of the Second Board of Appeal of the OHIM dismissing the appeal against the granting of Community trade mark No 3 219 193 does not comply with EC Regulation 40/94 on Community trade marks;

— order that the costs of the proceedings be paid by the defendant and, if appropriate, by the contributing party.

Pleas in law and main arguments

Applicant for the Community trade mark: Reinhard Knopf

Community trade mark concerned: The figurative mark ‘o-live’ for goods in classes 29, 30, 31 and 33 — application No 3 219 193

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

Mark or sign cited: The national trade name ‘Olive lines’ for the activities of a business dedicated to being a trade intermediary

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and (4) of Council Regulation No 40/94, as there is a risk of confusion between the earlier non-registered trade mark, which has more than just a local significance, and the trade mark applied for.
EN Official Journal of the European Union C 64/47

Appeal brought on 28 December 2007 by Carlos Sanchez Ferriz and Others against the judgment of the Civil Service Tribunal delivered on 17 October 2007 in Case F-115/06, Sanchez Ferriz and Others v Commission

(Case T-492/07 P)

(2008/C 64/77)

Language of the case: French

Parties

Appellants: Carlos Sanchez Ferriz (Brussels, Belgium), Isabele Chantraine (Brussels), José De Viana Costa Ribeiro (Meise, Belgium), Brigitte Housiaux (Ramillies, Belgium), Chantal Vellemans (Brussels), Sylvie Schaack (Remich, Grand Duchy of Luxembourg), Andrea Losito (Sandweiler, Grand Duchy of Luxembourg), Marie-Josée Gaspar-Lis (Luxembourg, Grand Duchy of Luxembourg), Otálka Ferreira-Nielsen (Gostingen, Grand Duchy of Luxembourg) (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— Annul the order of the Civil Service Tribunal of 17 October 2007 in Case F-115/06;

— Grant the claims of the applicants at first instance and, accordingly, declare the action in Case F-115/06 admissible and well-founded;

— In the alternative, refer the matter back to the Civil Service Tribunal;

— Rule on the costs and order the Commission to pay the costs.

Pleas in law and main arguments

In their appeal, the appellants seek the annulment of the order of the Civil Service Tribunal rejecting as inadmissible their action for, principally, annulment of the list of officials promoted in the 2005 promotion year, in that that list does not include the names of the appellants, and, as a subsidiary plea, annulment of the decisions attributing priority points to them for that year.

In support of their appeal, the appellants submit that, contrary to the findings in the contested order, the general implementing provisions of 26 April 2002, whose unlawfulness was raised at first instance, are directly connected in law to the present dispute.

Furthermore, they claim that the Tribunal erred in law in declaring the complaint alleging breach of the GIP 45 of 23 December 2004 inadmissible because it was raised late at the stage of the reply. They submit that that complaint had already been mentioned in the claim and in the application, and that the reply merely contains its amplification.

Finally, the appellants submit that, contrary to the findings of the Civil Service Tribunal, they are affected in a concrete manner and individually by the breach of the first paragraph of Article 6 and of Article 10 (2) of Annex XIII to the Staff Regulations and that accordingly their interest in bringing proceedings is clear.
EN Official Journal of the European Union C 64/42

Appeal brought on 21 December 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 10 October 2007 in Case F-107/06, Berrisford v Commission

(Case T-473/07 P)

(2008/C 64/68)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by D. Martin and K. Hermann, Agents)

Other party to the proceedings: Michael Berrisford (Brussels, Belgiím)

Form of order sought by the appellant

— set aside the judgment of the Civil Service Tribunal of 10 October 2007 in Case F-107/06 in so far as it holds, following the examination of the first part of the second plea, alleging failure to take any account of the fact that he had reached the promotion threshold two times but had not been promoted during the earlier exercises at first instance, that the Appointing Authority has therefore vitiated the consideration of the applicant's comparative merits at first instance with an error of law and, therefore, in this case, a manifest error of assessment;

— refer the case back to the Civil Service Tribunal;

— reserve the costs.

Pleas in law and main arguments

By this appeal, the Commission seeks partial annulment of the judgment of 10 October 2007 in Case F-107/06 Berrisford v Commission, by which the Civil Service Tribunal (CST) annulled its decision not to include the applicant's name on the list of officials promoted in the 2005 promotion procedure and dismissed the action with respect to the remainder of the applicant's forms of order.

In support of its appeal the Commission first puts forward two pleas alleging errors of law which it claims the CST committed in the contested judgment.

First, the Commission claims that the CST has infringed Article 45(1) of the Staff Regulations in so far as it laid down an obligation for the Appointing Authority to take account, by awarding extra points during the consideration of the applicant's merits, of the fact that he was put forward on two occasions by his directorate general in the procedure for ‘reserve officials’.

The second error of law that the Commission complains of in the contested decision is an infringement of Article 13(1) and (3)(b) of General Implementing Provisions in that the CST failed to recognise that the applicant's situation in 2003 and 2004 had been implicitly taken into consideration when the AIPN awarded points as a merit aspect related to the length of time in his grade.

Finally, the Commission relies on a plea alleging that the reasoning of the contested decision is contradictory.
EN Official Journal of the European Union C 64/57

Action brought on 2 January 2008 — Piccoli v OHIM (Representation of a shell)

(Case T-8/08)

(2008/C 64/91)

Language of the case: Italian

Parties

Applicant: G.M. Piccoli Srl (Alzano Lombardo, Italy) (represented by S. Giudici, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul or vary the decision of the First Board of Appeal of 28 September 2007, notified on 23 October 2007, to allow the registration of Community three-dimensional trade mark No 4522892 consisting in the stylised shape of a (scallop) shell, also to distinguish ‘brioches, brioches filled with creams or custards, jams, chocolate or honey’;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark representing a shell from four different perspectives (Registration Application No 4.522.892 for goods in Class 30).

Decision of the Examiner: Rejection of the application for registration in respect of ‘preparations made from cereals, pastry, confectionery and ices’.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Articles 4 and 7(1)(e) of Regulation (EC) No 40/94 on the Community trade mark, as well as misconstruction of a number of provisions of Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks. It is asserted, in that regard, that both Article 2 of Directive 89/104/EEC and Article 4 of Regulation (EC) No 40/94 acknowledge, expressly and unambiguously, the intrinsic distinctiveness, not only of the packaging of goods, but also of the very shape of those goods.
EN Official Journal of the European Union C 79/29

Action brought on 18 January 2008 — Liga para a Protecção da Natureza v Commission of the European Communities

(Case T-29/08)

(2008/C 79/58)

Language of the case: Portuguese

Parties

Applicant: Liga para a Protecção da Natureza (LPN) (Lisbon, Portugal) (represented by: P. Vinagre e Silva, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the General Secretariat of the European Commission, in response to a confirmatory application, rejecting the LPN's application for access to the documents concerning the procedure for the construction of the dam in the lower Sabor.

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

Pleas in law and main arguments

The information requested by the LPN from the Commission should be regarded, from the outset, as information which can and must be made available to it given the significant environmental interest which that entity seeks to defend and take charge of in the context of the project to construct the dam in the lower Sabor (Regulations Nos 1367/2006 (1) and 1049/2001 (2)).

The derogation from the presumption that there is an overriding public interest in disclosure (Article 6(1) of Regulation No 1367/2006) does not relieve the Commission of the obligation to weigh up the basis of that interest in each individual case. Any grounds for refusal must be interpreted restrictively by the Commission.

It is not sufficient for the Commission to rely on a theoretical model that the exception related to inspections and audits prevails, without giving any additional, concrete reasons on a document by document basis, in order to adopt a decision refusing access to all of the documents requested by the LPN.

The Commission refused partial access, basing that refusal on general reasons without making any effort to divide the documents into ‘confidential and non-confidential parts’, on the basis that access may not be given to any of the documents relating to the inspection and investigation proceedings. However, the Commission also has to make a concrete assessment here of the information contained in the documents to which access is sought.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

(2) 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).