ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 64/49

Action brought on 18 December 2007 — Repsol YPF Lubricantes y especialidades and Others v Commission

(Case T-496/07)

(2008/C 64/80)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades SA (Madrid, Spain) Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA (Madrid, Spain) (represented by: L. Ortiz Blanco, J. Buendía Sierra and M. Muñoz de Juan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision [C(2007) 4441] to the extent that it — Attributes joint and several liability for the infringement to Repsol Petróleo, SA; — Attributes joint and several liability and affiliate liability to Repsol YPF, SA; — Determines the basic amount in a manner contrary to the principle of proportionality by not taking into account either the restricted geographic extent and economic value of the market affected or the effects on the market (which failing, the slight impact); — applies incorrectly the Notice on leniency, in particular in relation to the percentage reduction of the fine granted to Repsol: and — treats leadership as an aggravating factor

— Reduce the fine imposed on Repsol in the exercise of the Court's unlimited jurisdiction to an appropriate amount;

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

Pleas in law and main arguments

The action is directed against Commission Decision C(2007) 4441 final of 3 October 2007in the Case COMP/38710 — Bitumen Spain. In the contested decision, the Commission declared that the applicant, together with other companies, had infringed Article 81 EC by having taken part, over a certain period, in a set of agreements and concerted practices in the market for penetration bitumen, namely agreements for sharing the market and coordinating prices. In respect of those infringements the Commission imposed a fine for which the applicants are jointly and severally liable.

In support of their claims, the applicants allege first an error of assessment of the facts and an error of law in the incorrectly attribution of responsibility for the infringement to the parent companies of Repsol YPF Lubricantes y especialidades SA. In that context, the applicants consider that the attribution of affiliate liability contravenes Community law.

Secondly, the applicants allege that the Commission infringed the principle of proportionality in calculating the initial amount.

Thirdly, the applicants allege a manifest error of assessment or alternatively an infringement of the general principles of protection of legitimate expectations, proportionality and equal treatment in determining the percentage reduction of the fine in accordance with the Notice on cooperation of 2002 (1).

Lastly, the applicants consider that the Commission committed a manifest error of assessment in relation to the evaluation leadership of the cartel jointly with another company as an aggravating factor.

(1) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002, C 45, p. 3).
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in the alternative, declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as the Commission orders recovery of PLN 7 183 528 from the company Buczek Automotive sp. z o.o.;
EN Official Journal of the European Union C 79/31

Action brought on 18 January 2008 — Bastos Viegas v OHIM — Pierre Fabre Médicament (OPDREX)

(Case T-33/08)

(2008/C 79/60)

Language in which the application was lodged: Spanish

Parties

Applicant: Bastos Viegas, AS (Penafiel, Portugal) (represented by: G. Marín Raigal and P. López Ronda, 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: Pierre Fabre Médicament, S.A.

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of OHIM of 14 November 2007 (Case R 1238/2006-4) so as to dismiss the opposition lodged by Pierre Fabre and grant Community trade mark application No 2 429 249 ‘OPDREX’ (figurative) and order the opponent to pay the costs of both proceedings;

— Order the defendant to bear its own costs and to pay the costs of the applicant;

— Order the intervener to bear its own costs and to pay the costs of the applicant in these proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘OPDREX’ (application for registration No 2 429 249, for goods in Classes 5 and 10 and services in Class 35).

Proprietor of the mark or sign cited in the opposition proceedings: Pierre Fabre Médicament, S.A.

Mark or sign cited in opposition: National word mark ‘OPTREX’ for goods in Class 5 (pharmaceutical goods).

Decision of the Opposition Division: Upholding in part of the opposition, in respect of certain goods in Classes 5 and 10.

Decision of the Board of Appeal: Annulment of the contested decision, in so far as it rejects the Community trade mark application in respect of ‘surgical apparatus and instruments’ in Class 10.

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 64/57

Action brought on 7 January 2008 — Volkswagen v OHIM (CAR SILHOUETTE III)

(Case T-9/08)

(2008/C 64/92)

Language in which the application was lodged: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by H.-P. Schrammek, C. Drzymalla, S. Risthaus, R. Jepsen, lawyers)

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 6 November 2007, notified on 9 November 2007, in appeal case R 1306/2007-4;

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

Pleas in law and main arguments

Community trade mark concerned: The international figurative mark ‘CAR SILHOUETTE III’ for goods in Class 12 (international registration, designating the European Community, No W 878 349).

Decision of the Examiner: Refusal of protection.

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

Pleas in law:

— Infringement of Article 74(1) of Regulation (EC) No 40/94 (1) due to an incorrect examination of the facts by the Office of its own motion;

— Infringement of Article 73 of Regulation No 40/94, namely the right to a fair hearing;

— Infringement of Article 7(1)(b) of Regulation No 40/94 in finding the mark to be devoid of any distinctive character.

(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 92/31

Action brought on 14 January 2008 — Mars v OHIM — Ludwig Schokolade (three dimensional mark representing a chocolate bar)

(Case T-28/08)

(2008/C 92/64)

Language in which the application was lodged: English

Parties

Applicant: Mars, Inc. (McLean, United States) (represented by: A. Bryson, Barrister, and G. Mills, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Ludwig Schokolade GmbH & Co. KG (Bergisch Gladbach, 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 October 2007;

— order that OHIM bears its own and pays the applicant's costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional mark representing a chocolate bar for goods in classes 5, 29 and 30 — Community trade mark No 818 864

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Ludwig Schokolade GmbH & Co. KG

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

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Articles 7(1)(b) and (3), 51(2), 73 and 74(1) of Council Regulation No 40/94, as:

— the Board of Appeal ought to have concluded that the shape in issue was a significant departure from the norms and customs of the relevant sector;

— the Board of Appeal required proof that the mark had acquired distinctiveness in every relevant Member State on a country by country basis and not based on whether it had acquired distinctiveness in a substantial part of the Community market for chocolate bars;
EN Official Journal of the European Union C 92/33

Action brought on 23 January 2008 — Walton v Commission

(Case T-37/08)

(2008/C 92/68)

Language of the case: English

Parties

Applicant: Robert Walton (Oxford, United Kingdom) (represented by: D. Beard, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— A declaration that the decision of the Commission to set-off the sum of EUR 36 551,58 against the sums due to Mr Walton pursuant to the judgment of the Court in Case T-144/02 was unlawful; or

— a declaration that the decision of the Commission to set off the sum of EUR 36 551,58 against the sums due to Mr Walton pursuant to the judgment of the Court in Case T-144/02 was unlawful in part; or

— a declaration that the sum of EUR 36 551,58 set off by the Commission against the sums due to Mr Walton pursuant to the judgment of the Court in Case T-144/02 should be recalculated so as to remove the Commission's claim for interest; and/or

— an order that (a) the established amount receivable of EUR 13 104,14 plus interest; and/or (b) the established amount receivable of EUR 13 815,16 plus interest be cancelled; and

— an order that the Commission pay the appellant's costs; and

— such further or other measures as the Court may consider just and equitable.

Pleas in law and main arguments

By judgment of 12 July 2007 in Case T-144/02 Richard J. Eagle and Others v Commission [2007] ECR II-0000 the Commission was ordered by the Court of First Instance to pay the applicant damages of a certain amount.

By payment of 16 November 2007 the Commission paid a reduced amount having set off the sum of EUR 36 551,58. The applicant challenges the decision of the Commission to reduce the sums due to him by this amount.

In support of its application, the applicant submits that the Commission erred in law in reaching the contested decision, as the decision was an unlawful abuse of process since the Commission had withdrawn its claim for set-off during the proceedings before the Court and therefore could not unilaterally pursue the issue subsequently.

The applicant furthermore contends that the contested decision was contrary to a binding legitimate expectation of the applicant, as the Commission had accepted the applicant's figures in correspondence following the judgment of the Court.

Finally, the applicant claims that the debit notes upon which the contested decision relied failed to provide a proper legal basis for the decision and that the decision was based upon a fundamental miscalculation in relation to interest claimed.
EN Official Journal of the European Union C 107/34

Action brought on 18 February 2008 — Enercon v OHIM (E-ship)

(Case T-81/08)

(2008/C 107/58)

Language in which the application was lodged: German

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by R. Böhm, lawyer)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 December 2007 (Case R 319/2007-1);

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘E-ship’ for goods and services in classes 7, 9, 12 and 39 (application No 5 050 539).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) on account of an incorrect assessment of the need for availability and of the distinctive character of the mark applied for.

(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 92/34

Action brought on 1 February 2008 — Vakakis v Commission

(Case T-41/08)

(2008/C 92/70)

Language of the case: English

Parties

Applicant: Vakakis International — Symvouli gia Agrotiki Anaptixi AE (Athens, Greece) (represented by: B. O'Connor, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— To declare this application admissible;

— to annul the unreasoned decision of the European Commission of 6 December 2007 (Reference No A3 TF TCC(2007)106233) not to invite the consortium led by Vakakis International SA to be interviewed in respect of the service tender procedure ‘Technical Assistance to Support Rural Development Policy’ number EuropeAid/125241/C/SER/CY;

— to annul the decision of the European Commission of 21 December 2007 (Reference No A3 TF TCC(2007)106667) to reject the tender submitted by Vakakis International SA on the basis that it did not meet the technical requirements;

— pursuant to Article 65(b) of the Rules of Procedure of the Court of First Instance, to request the Commission to provide certain documents in relation to the activities of the evaluation committee established to review the tenders submitted in respect of the EuropeAid/125241/C/SER/CY tender procedure as well as the establishment of the short list of tenderers;

— to make any additional order which the Court considers necessary;

— to order the Commission to pay the costs.

Pleas in law and main arguments

The applicant claims that the Commission's letter of 6 December 2007 informing the applicant it would not be invited to interview constitutes a decision which lacks sufficient reasoning in breach of Article 253 EC. Moreover, the applicant submits that this stage is an essential element of the tender procedure to which all tenderers, even those failing to meet the technical standard required, should be invited in order to maintain a competitive environment. Furthermore, the applicant argues that the said decision is legally flawed since it is based on non-compliance with the administrative criteria instead of non-compliance to the technical standard required. This amounts, according to the applicant, to a misuse of powers conferred to the Commission in the framework of the tenders' evaluation procedure.

In addition, and with regards to both the above-mentioned decision and the decision of 21 December 2007, the applicant submits that they are incompatible with the terms of the Practical Guide to Contract Procedures for EC External actions. Finally, the applicant claims that the Commission decision of 21 December 2007 purported to justify an unreasoned earlier decision excluding the applicant from the tender and therefore is legally flawed.
EN Official Journal of the European Union C 116/25

Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)

(Case T-109/08)

(2008/C 116/45)

Language in which the application was lodged: French

Parties

Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, lawyers)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 532 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

— In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007;

— In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted white bottle for goods in class 33 (application No 32 532)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-190/04 Freixenet v OHIM (shape of a frosted white bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

— The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

— The Board of Appeal failed to specify the documents on which it bases its decision;

— The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; and
EN Official Journal of the European Union C 107/38

Appeal brought on 25 February 2008 by Asa Sundholm against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-27/07 Sundholm v Commission

(Case T-102/08 P)

(2008/C 107/64)

Language of the case: French

Parties

Appellant: Asa Sundholm (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— quash the judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07;

— give judgment again and do what the first court ought to have done: annul the decision drawing up the applicant's Career Development Report for the period from 1 July 2001 to 31 December 2002, adopted pursuant to the judgment of the Court of First Instance of 20 April 2005;

— order the defendant to pay the costs at first instance and on appeal.

Pleas in law and main arguments

In her appeal, the appellant seeks the setting aside of the judgment of the Civil Service Tribunal (CST) dismissing the action by which she sought the annulment of the Commission's decision drawing up her Career Development Report for the period from 1 July 2001 to 31 December 2002, since the first report for that period was annulled by the judgment of the Court of First Instance of 20 April 2005 (1).

In support of her appeal the appellant puts forward a single plea in law alleging an error of law, infringement of Article 233 EC and failure to comply with Community law in relation to the special obligation to state reasons.

She claims that the CST erred in law by disregarding the scope of the judgment of the Court of First Instance of 20 April 2005 and of Article 233 EC in holding that the Appointing Authority was not required, when taking the necessary measures to comply with the judgment and in taking account of its grounds and the time lapse between the annulled decision and that adopted pursuant to that judgment, to provide a more extensive statement of reasons in respect of the obligation on the administration to state reasons in a specific manner for a Development Report drawn up pursuant to a judgment of the Court of First Instance and, according to the appellant, out of time.

In addition, she submits that the CST disregarded the force of res judicata with absolute effect of a judgment of the Court of First Instance by accepting that the mere deletion of the comments unlawfully taken into consideration constitutes a fair rectification of the evaluation of the appellant.

(1) Case T-86/04 Sundholm v Commission, not published in the ECR.
EN Official Journal of the European Union C 142/31

Action brought on 3 April 2008 — Schräder v CPVO — Jørn Hansson (Lemon Symphony)

(Case T-133/08)

(2008/C 142/57)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office

Other party to the proceedings before the Board of Appeal of CPVO: Jørn Hansson (Søndersø, Denmark)

Form of order sought

— Annul the decision of the Board of Appeal of CPVO of 4 December 2007 (Case A 007/2007) and declare the adaptation of the variety description for the plant variety Lemon Symphony null and void;

— In the alternative, annul the decision of the Board of Appeal of CPVO of 4 December 2007 (Case A 007/2007);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community plant variety right concerned: Lemon Symphony

Proprietor of the Community plant variety right: Jørn Hansson

Decision of the Board of Appeal of the Community Plant Variety Office which is being contested: Adaptation of a variety description in accordance with Article 87(4) of Council Regulation (EC) No 2100/94 (1)

Appellant before the Board of Appeal: the Applicant

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 59(2) of Regulation (EC) No 1239/95 (2) inasmuch as the applicant was not summoned to the hearing in due form;

— Infringement of Article 75 of Regulation No 2100/94 inasmuch as the applicant was unable to present his comments orally or in writing on the absence of locus standi;

— Infringement of Article 71(1), in conjunction with Article 68, of Regulation No 2100/94, inasmuch as the decision challenged before the Board of Appeal is of direct and individual concern to the applicant;

— Infringement of Article 73 of Regulation No 2100/94 and Article 230 EC inasmuch as the applicant's right to judicial review of administrative action has been infringed;

— Infringement of Article 48 of Regulation No 2100/94 inasmuch as a member of the Board of Appeal allegedly had an interest in the proceedings.

(1) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

(2) Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).