ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 183/29

Action brought on 5 June 2008 — CLL Centre de langues v Commission

(Case T-202/08)

(2008/C 183/55)

Language of the case: French

Parties

Applicant: Centre de langues à Louvain-la-Neuve et -en-Woluwe (CLL Centre de langues) (Louvain-la-Neuve, Belgium) (represented by: F. Tulkens and V. Ost, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the rejection decision;

— Order the Commission to bear its own costs and to pay those incurred by CLL.

Pleas in law and main arguments

The applicant disputes the Commission's decision to reject its application to participate in invitation to tender ADMIN/D1/PR/2008/004 regarding language training for staff at the European Union (EU) institutions, bodies and agencies in Brussels (OJ 2008/S 44-060121), on the ground that the application was submitted after the deadline stated in the contract notice.

In support of its action, the applicant submits that the contested decision is based on an incorrect supposition that the awarding authority is required to reject all late applications to participate. The applicant takes the view, on the contrary, that the awarding authority has a margin of discretion in that regard.

Furthermore, the applicant submits that the contested decision is not sufficiently reasoned, since the Commission has not explained why it has not exercised its discretionary powers.

Finally, the applicant raises a plea alleging breach of Article 123 of the implementing rules (1), according to which the number of candidates invited to tender must be sufficient to ensure genuine competition, and the disproportionate nature of the rejection of the applicant's application.

(1) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357, p. 1).
EN Official Journal of the European Union C 209/55

Action brought on 12 May 2008 — Rui Manuel Alves dos Santos v Commission

(Case T-184/08)

(2008/C 209/99)

Language of the case: Portuguese

Parties

Applicant: Rui Manuel Alves dos Santos (Rominha, Alvaiázere, Portugal) (represented by A. Marques Fernandes, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annulment of the European Commission's decision, adopted in connection with Case 89 0488 P1, notified to the applicant on 3 March 2008, deciding that the applicant must be required to repay the sum of EUR 25 485,00, equivalent to PTE 5 109 287.

Pleas in law and main arguments

The training programme was carried out in full.

The auditors used criteria far removed from reality and for reasons quite foreign to the applicant they treated costs as ineligible.

All the expenditure ought to have been regarded as eligible and taken into consideration in the final account.

After the lapse of twenty years, repayment of any amount is flagrant injustice and runs counter to the fundamental principles of proportionality and of certainty for citizens before the law and the institutions.
EN Official Journal of the European Union C 209/57

Action brought on 18 June 2008 — Szomborg v Commission

(Case T-228/08)

(2008/C 209/103)

Language of the case: Polish

Parties

Applicant: Grzegorz Szomborg (Jastarnia, Poland) (represented by R. Nowosielski, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— declare that the Commission failed to act, in breach of its obligations under Article 27 of Council Regulation (EC) No 2187/2005 of 21 December 2005 (1), in that it did not publish a scientific assessment of the effects of using in particular gillnets, trammel nets and entangling nets on cetaceans and did not present its findings to the European Parliament and the Council;

— order the Commission to bear its costs;

— order the applicant's costs to be reimbursed.

Pleas in law and main arguments

In accordance with Article 27 of Council Regulation No 2187/2005 the Commission was obliged to ensure by 1 January 2008 that a scientific assessment was conducted of the effects of using in particular gillnets, trammel nets and entangling nets on cetaceans and its findings presented to the European Parliament and the Council. In connection with the failure to present such a report within the prescribed period, the applicant called on the Commission to act, by letter of 25 February 2008. In reply to the applicant's call to act, the Commission asserted that such a scientific assessment had not yet been presented as a result of the lack of cooperation by other parties.

Considering that in those circumstances the Commission's failure to comply with its obligation under Article 27 of Council Regulation No 2187/2005 is beyond dispute, the applicant brought the present action for failure to act under Article 232 EC.

(1) Council Regulation (EC) No 2187/2005 of 21 December 2005 for the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 1434/98 and repealing Regulation (EC) No 88/98 (OJ 2005 L 349, p. 1).
EN Official Journal of the European Union C 223/51

Action brought on 20 June 2008 — Iranian Tobacco v OHIM — AD Bulgartabac (TIR 20 FILTER CIGARETTES)

(Case T-245/08)

(2008/C 223/90)

Language in which the application was lodged: German

Parties

Applicant: Iranian Tobacco Company (Tehran, Iran) (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: AD Bulgartabac Holding (Sofia, Bulgaria)

Form of order sought

— annul the decision of the First Board of Appeal of 11 April 2008 (Case R 708/2007-1), notified on 21 April 2008;

— order the third party to pay the refundable costs, including those of the main proceedings and of the defendant;

— in the alternative, annul the decision of 11 April 2008 and that of 7 March 2007 — 1414C — and hold the third party's application of 8 November 2005 to be inadmissible.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the figurative mark ‘TIR 20 FILTER CIGARETTES’ for goods in Class 34 (Community trade mark No 400 804).

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: AD Bulgartabac Holding.

Decision of the Cancellation Division: cancellation of the relevant Community trade mark.

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

Pleas in law: conditions of admissibility to be taken into consideration ex officio by OHIM concerning AD Bulgartabac Holding's application were not examined, contrary to Community law, to Regulation (EC) No 40/94 (1) and to other procedural principles.

(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 223/47

Action brought on 13 June 2008 — Mineralbrunnen Rhön-Sprudel Egon Schindel v OHIM — Schwarzbräu (Alaska)

(Case T-226/08)

(2008/C 223/83)

Language in which the application was lodged: German

Parties

Applicant: Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH (Ebersburg, Germany) (represented by: P. Wadenbach, 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: Schwarzbräu GmbH (Zusmarshausen, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 (Case R 1124/2004-4);

— cancel Community trade mark No 505 503 ‘Alaska’ entirely, on account of the existence of absolute grounds for refusal;

— order the defendant to pay the costs;

— in the alternative to the second head of claim, declare Community trade mark No 505 503 ‘Alaska’ invalid in respect, at least, of the following goods: ‘Mineral and aerated waters and other non-alcoholic drinks in class 32’.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Alaska’ for goods in class 32 (Community trade mark No 505 503).

Proprietor of the Community trade mark: Schwarzbräu GmbH.

Applicant for the declaration of invalidity: The applicant.

Decision of the Cancellation Division: Application for a declaration of invalidity of the trade mark concerned granted in part.

Decision of the Board of Appeal: Annulment of the contested decision and dismissal of the application for a declaration of invalidity of the trade mark concerned.

Pleas in law: Infringement of Article 7(1)(b), (c) and (g) of Regulation (EC) No 40/94 (1).

(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 247/20

Action brought on 31 July 2008 — Aldi v OHIM — Catalana de Telecomunicacions Societat Operadora de Xarxes (ALDI)

(Case T-298/08)

(2008/C 247/40)

Language in which the application was lodged: German

Parties

Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, 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: Catalana de Telecomunicacions Societat Operadora de Xarxes, SA (Barcelona, Spain)

Form of order sought

— Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 May 2008 (Case No R 1301/2007-1);

— Order the defendant to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘ALDI’ for goods and services in Classes 35, 38, and 39 (application No 3 360 914).

Proprietor of the mark or sign cited in the opposition proceedings: Catalana de Telecomunicacions Societat Operadora de Xarxes, SA.

Mark or sign cited in opposition: the Spanish word mark ‘ALPI’ for services in Class 38 (Mark No 2 262 920), the Spanish word mark ‘ALPI’ for services in Class 39 (Mark No 2 262 921) and the international word mark ‘ALPI’ for services in Classes 37, 38, 39 and 42 (Mark No 789 344), opposition being filed to registration for services in Class 38.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Plea in law: Infringement of Article 1(b) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the conflicting marks.

(1) Council Regulation No 40/94 0f 20 December 1991 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 236/15

Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)

(Case T-277/08)

(2008/C 236/26)

Language in which the application was lodged: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, United States) (represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios ERN, SA (Sant Just Desvern, 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 5 May 2008 in case R 459/2007-4; and

— Order the defendant or alternatively the other party to the proceedings before the Board of Appeal to pay the costs. As a further alternative, to order the defendant and the other party to the proceedings before the Board of Appeal to be liable jointly and severally for the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly Mission Pharmacal Company)

Community trade mark concerned: The word mark ‘CITRACAL’ for goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal (formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532 of the mark ‘CICATRAL’ for goods in classes 1 and 5

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its assessment of the evidence of proof-of-use, and in particular on the issue of the provision of a suitable translation of the goods in relation to which the mark cited in the opposition proceedings was used. Further, the Board of Appeal erred in its assessment of the existence of a likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 260/17

Action brought on 18 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a reindeer made of chocolate)

(Case T-337/08)

(2008/C 260/32)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, 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 12 June 2008 (Appeal Case R 780/2005-4); and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing a reindeer made of chocolate, for goods in Class 30 (Application No 4 098 489).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has the necessary distinctive character and its availability does not have to be preserved.

(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 247/13

Action brought on 9 July 2008 — Région Nord-Pas-de-Calais v Commission

(Case T-267/08)

(2008/C 247/26)

Language of the case: French

Parties

Applicant: Région Nord-Pas-de-Calais (represented by: M. Cliquennois and F. Cavedon, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision C (2008) 1089 final of the Commission of the European Communities of 2 April 2008, concerning State Aid No C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA;

— order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of the decision C(2008) 1089 final of the Commission of the European Communities of 2 April 2008 by which the Commission declared incompatible with the common market the State aid granted by the applicant and the Communauté d'agglomération du Douaisis in favour of Arbel Fauvet Rail SA in the form of advances repayable at an annual rate of interest of 4,08 % corresponding to the Community reference rate applicable when the loan was granted. The Commission considered that, taking into account its financial standing, Arbel Fauvet Rail SA would not have been able to obtain funds on such favourable terms in the financial market.

The applicant claims first that the Commission committed a manifest error of assessment and disregarded its obligation to state reasons, inasmuch as it considered that the source of the funds was, in part, the Communauté d'agglomération du Douaisis and did not take account of the specific legal features of the Communauté d'agglomération which is a public institution of intercommunity cooperation endowed with administrative and budgetary autonomy in relation to the towns and communities which are members of it. The applicant considers that the aid granted is consequently not attributable to the State.

The applicant further claims that the Commission committed errors of assessment (i) by describing Arbel Fauvet Rail SA as a firm in difficulty and (ii) by considering that Arbel Fauvet Rail SA could not have obtained the operative rate of interest in normal market conditions.

The applicant claims in addition that the Commission did not conduct its examination of the case with the required diligence, inasmuch as it did not specify either the amount of the aid to be recovered, nor the value of the aid and it did not provide any evidence capable of justifying an increased interest rate to be applied to the repayable advances because of a situation of particular risk in relation to Arbel Fauvet Rail SA.

Lastly, the applicant relies on an infringement of the principle that both parties should have the right to be heard, since the applicant's views were not heard during the administrative procedure.
EN Official Journal of the European Union C 272/43

Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission

(Case T-350/08)

(2008/C 272/86)

Language of the case: German

Parties

Applicant: Papierfabrik Hamburger-Spremberg GmbH & Co. KG (Spremberg, Germany) (represented by: S. Polster, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested Commission Decision C(2008) 1107 final of 2 April 2008 in State aid case N 582/2007 — Germany, according to which the regional aid in favour of Propapier PM 2 GmbH & Co. KG is compatible with the EC Treaty;

— Order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1107 final of 2 April 2008, by which the Commission declared that the regional aid which the Federal Republic of Germany approved for Propapier PM 2 is compatible with the EC Treaty.

The applicant relies on the following three pleas in law in support of its action.

First, the applicant alleges that, by not opening the formal investigation procedure, the Commission infringed Article 88(2) EC, Article 4 of Regulation (EC) No 659/1999 (1) and paragraph 68 et seq. of the Guidelines on national regional aid for 2007-2013 (2).

By its second plea in law the applicant complains that the obligation to provide reasons was infringed in relation to the nature of the regional aid Guidelines as the exclusive basis for the decision; it also complains of infringements in relation to the need to take into account the market for recycled fibre as the upstream market for corrugated case material and regarding the assessment of the competitive position on those markets and on the downstream corrugated board market of the recipient of State aid Propapier PM 2.

Finally the applicant claims with reference to the distortion of competition associated with the investment project affecting a total of three product markets that the regional aid approved for Propapier PM 2 is incompatible with the common market.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2) OJ 2006 C 54, p. 13.
EN Official Journal of the European Union C 272/43

Action brought on 20 August 2008 — iTouch International v OHIM — Touchnet Information Systems (iTouch)

(Case T-347/08)

(2008/C 272/85)

Language in which the application was lodged: English

Parties

Applicant: iTouch International plc (London, United Kingdom) (represented by: T. Alkin, Barrister)

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

Other party to the proceedings before the Board of Appeal: Touchnet Information Systems, Inc. (Lenexa, United States)

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 28 May 2008 in case R 493/2007-2;

— In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2008 in case R 493/2007-2 to such extent as the court may deem fit; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘iTouch’ for services in classes 38 and 42

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: Community trade mark registration No 1 449 503 of the word mark ‘TOUCHNET’ for goods and services in classes 9, 37 and 42

Decision of the Opposition Division: Upheld 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 the Board of Appeal erred in its finding that there exists a likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 272/35

Action brought on 12 August 2008 — Margherita v Commission

(Case T-320/08)

(2008/C 272/68)

Language of the case: Italian

Parties

Applicant: Margherita Soc. coop. rl (Cariati, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 301/59

Action brought on 3 October 2008 — Timsas v Commission

(Case T-453/08)

(2008/C 301/97)

Language of the case: Italian

Parties

Applicant: Timsas Srl (Arezzo, Italy) (represented by: D. Dodaro, S. Pinna and S. Cianciullo, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— Annul the Decision in so far as it: (a) states that ‘[t]he [S]tate aid granted in accordance with Regional Act No 9 of 1998, unlawfully put into effect by Italy in Resolution (deliberazione) No 33/6 and in the first call for applications, is 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’ (Article 1 of the Decision); (b) orders that ‘[t]he Italian Republic shall recover the incompatible aid granted under the scheme referred to in Article 1 from the recipients’ (Article 2(1) of the Decision); (c) orders that ‘[t]he The Italian Republic shall cancel all outstanding payments of aid under the scheme referred to in Article 1 with effect from the date of adoption of this Decision’ (Article 2(4) of the Decision).

— Order the Commission to pay the costs of the present proceedings.

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, Case T-408/08 S.F. Turistico Immobiliare v Council and Commission and Case T-436/08 Studio Vacanze v Commission.

The pleas in law and main arguments are similar to those put forward in those cases.