ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 129/14

Action brought on 25 February 2009 — Pollmeier Massivholz v Commission

(Case T-89/09)

2009/C 129/25

Language of the case: German

Parties

Applicant: Pollmeier Massivholz GmbH & Co. KG (Creuzburg, Germany) (represented by: J. Heithecker and F. von Alemann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Commission of the European Communities of 21 October 2008 in the procedure ‘State aid N 512/2007 — Germany, Abalon Hardwood Hessen GmbH’;

— Annul the decision of the Commission of the European Communities of 15 December 2008 in the procedure ‘CP 195/2007 — Abalon Hardwood Hessen GmbH’;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests, first, the Commission’s Decision of 21 October 2008 in the procedure State aid N 512/2007 — Germany, Abalon Hardwood Hessen GmbH by which the Commission raised no objections to a number of support measures for the construction of a new sawmill in favour of Abalon Hardwood Hessen GmbH, one of the applicant’s direct competitors, and, second, the Commission’s Decision of 15 December 2008 by which the Commission terminated the complaint procedure CP 195/2007 pending before it in respect of those measures.

The applicant relies on seven pleas in law in support of its action.

First, the contested decisions infringed Article 88(2) and (3) EC and Regulation (EC) No 659/1999 (1) in that the defendant erroneously used the legal position at the time the support measures were granted as a basis for its assessment of the notified support measures and thus came to a conclusion which is incompatible with objective law.

Secondly, the applicant submits, in the alternative, in the event that the Court should reject the first plea, that the defendant infringed Article 88(3) EC and Regulation No 659/1999 in that it carried out the procedure for notified aid under Article 4 of Regulation No 659/1999 although the relevant aid had already been granted.

Thirdly, the defendant infringed Article 88(2) and (3) EC in that it did not initiate the formal investigation procedure despite serious difficulties of assessment.

Fourthly, the defendant infringed its obligation to conduct a diligent and impartial examination because it manifestly failed to deal at all with a number of the applicant’s main arguments.

Fifthly, the applicant submits that there are deficiencies in the statement of reasons for the contested decisions.

Sixthly, the defendant infringed the applicant’s right to be involved in the procedure to the extent appropriate in that it did not inform the applicant as to the type of procedure it had chosen.

Seventhly, the defendant infringed Article 87(1) EC and Article 88(3) EC in that its calculation of the aid value of the guarantees was incorrect.

(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).
EN Official Journal of the European Union C 141/53

Action brought on 10 April 2009 — Dover v Parliament

(Case T-149/09)

2009/C 141/108

Language of the case: English

Parties

Applicant: Densmore Ronald Dover (Borehamwood, United Kingdom) (represented by: D. Vaughan, QC Barrister, M. Lester, Barrister and M. French, Solicitor)

Defendant: European Parliament

Form of order sought

— annulment of contested decision;

— measures of organisation pursuant to Article 64 of the Rules of Procedure of the Court of First Instance, as specified in the application;

— order that the Parliament pays the applicant’s costs on this action.

Pleas in law and main arguments

By means of the present application the applicant seeks the annulment of Parliament Decision D(2009) 4639 of 29 January 2009 concerning the recovery of the parliamentary assistance allowance.

In support of his application, the applicant puts forward five pleas in law.

First, he claims that the Parliament has misinterpreted and misapplied Article 14 of the Rules governing the payment of expenses and allowances to members of the European Parliament (PEAM Rules), inter alia by seeking to impose, with retrospective effect, onerous requirements on the applicant which were never requirements on MEPs at the relevant time and by failing to identify precisely which item of expenditure is considered to have been paid unduly.

Second, he submits that the Parliament has relied on an alleged ‘conflict of interest’ with violation of the principle of legal certainty as it acted incompatibly with past custom and practice, inconsistently with its published rules, and without setting out clear and transparent standards. The applicant claims that the Parliament decision lacks any legal or factual basis.

Third, the applicant argues that the Parliament has not complied with the fundamental procedural requirements of Article 27 of the PEAM Rules inter alia regarding the prior consultation of the quaestors, justifying the ‘exceptional case’ circumstances, hearing the applicant before a decision had been taken as well as the requirement of a decision that should be taken by the Bureau.

Fourth, he contends that the defendant has sought to reclaim VAT from the applicant without having legal basis for doing so.

Finally, the applicant claims that the Parliament has referred the applicant’s case to OLAF prematurely, in breach of the applicant’s right of defence and without legal basis or justification.
EN Official Journal of the European Union C 167/20

Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (Olymp)

(Case T-203/09)

2009/C 167/40

Language in which the application was lodged: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: J. Dönch and M. Eck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Miguel Bellido, S.A. (Manzanares, Ciudad Real, Spain)

Form of order sought

— Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2009 in case R 531/2008-2; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘Olymp’ for goods in class 25

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Spanish trade mark registration of the figurative mark ‘OLIMPO’ for goods in class 25

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) and of Article 52(1)(a) of Council Regulation 40/94 (which became Article 53(1)(a) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there was a likelihood of confusion, due to the fact that the concerned trade marks are not visually, aurally or conceptually similar.
EN Official Journal of the European Union C 153/40

Action brought on 7 April 2009 — Muñoz Arraiza v OHIM — Consejo Regulador de la Denominación de Origen Calificada Rioja (RIOJAVINA)

(Case T-138/09)

2009/C 153/79

Language in which the application was lodged: Spanish

Parties

Applicant: Félix Muñoz Arraiza (Logroño, Spain) (represented by: J. Grimau Muñoz and J. Villamor Muguerza, 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: Consejo Regulador de la Denominación de Origen Calificada Rioja (Logroño, Spain)

Form of order sought

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 29 January 2009 in Case R 721/2008-2, allowing the application for registration of “RIOJAVINA” (word mark) as a Community trade mark in classes 29, 30 and 35;

— make an express order as to costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Félix Muñoz Arraiza

Community trade mark concerned: Word mark “RIOJAVINA” (Application No 4 121 621) for goods and services in classes 29, 30 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Consejo Regulador de la Denominación de Origen Calificada Rioja

Mark or sign cited in opposition: Various registered marks, including in particular the Community figurative mark “RIOJA” (No 226 118) for goods in class 33 and the International figurative mark “RIOJA” (No 655 291) for goods in class 33.

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

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

Pleas in law: Infringement of Article 8(1) of Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1994 L 11, p. 1) (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 180/55

Action brought on 22 May 2009 — Rügen Fisch v OHIM — Schwaaner Fischwaren (SCOMBER MIX)

(Case T-201/09)

2009/C 180/102

Language in which the application was lodged: German

Parties

Applicant: Rügen Fisch AG (Sassnitz, Germany) (represented by: O. Spuhler and M. Geiz, 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: Schwaaner Fischwaren GmbH (Schwaandorf, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in Case R 230/2007-4;

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘SCOMBER MIX’ for goods and services in classes 29 and 25 (Community trade mark No 3 227 031)

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Schwaaner Fischwaren GmbH

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

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and partial declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009 (1)) on the grounds that the Community trade mark ‘SCOMBER MIX’ is not purely descriptive.

(1) Council Regulation (EC) No 207/2009 as of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)
EN Official Journal of the European Union C 167/15

Appeal brought on 27 April 2009 by the Council of the European Union against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-51/08, Stols v Council

(Case T-175/09 P)

2009/C 167/31

Language of the case: French

Parties

Appellant: Council of the European Union (represented by M. Bauer and G. Kimberley, acting as Agents)

Other party to the proceedings: Willem Stols (Halsteren, Netherlands)

Form of order sought by the appellant

— Set aside the judgment of the CST of 17 February 2009 in Case F-51/08 Willem Stols v Council,

— Dismiss the action of 21 May 2008 by which Mr Stols had sought annulment of the decision of 16 July 2007 by which the Council refused to include him on the list of officials promoted to grade AST 11 for the 2007 promotion exercise, together with the decision of 5 February 2008 by which the Deputy Secretary-General of the Council had rejected, as the appointing authority, Mr Stols’ complaint submitted in accordance with Article 90(2) of the Staff Regulations,

— Order the defendant to pay all the costs incurred at first instance and on appeal.

Pleas in law and main arguments

By the present appeal, the Council of the European Union seeks to have set aside the judgment of the Civil Service Tribunal (CST) of 17 February 2009 in Case F-51/08 Stols v Council, by which the CST annulled the Council decisions refusing to promote Mr Stols to grade AST 11 in the context of the 2007 promotion exercise.

In support of its appeal, the Council relies on two grounds of appeal alleging:

— an error of law, in so far as the CST exceeded the limits set by the case-law to the review by the Community judicature of the wide discretion enjoyed by the appointing authority for the purposes of the comparative consideration of the merits of officials who are candidatesfor promotion;
EN Official Journal of the European Union C 193/30

Action brought on 29 June 2009 — Insula v Commission

(Case T-246/09)

2009/C 193/48

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: P. Marsal and J.-D. Simonet, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the action to be admissible and well-founded;

— declare that the Commission’s application for the reimbursement of the sum of EUR 189 241,64 is unfounded and, accordingly, order the Commission to issue a credit note in the amount of EUR 189 241,64;

— order the Commission to pay damages of EUR 212 597;

— in the alternative, declare that the applicant has the right to a compensatory allowance of EUR 230 025;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, which is based on an arbitration clause, the applicant requests that the Court find that the debit notes of 25 September 2008, 26 March 2009 and 26 May 2009, by which the Commission called, following an audit report by OLAF, for the recovery of advances paid to the applicant, are inconsistent with the clauses of the contracts IST-2001-35077 DIAS.NET and IST-1999-20896 MEDIS concluded in the context of a specific programme for Community research, technological development and demonstration activities in the field of the information society (1998-2002). In the alternative, the applicant submits a claim for damages.

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

By its first plea, it disputes that the debt claimed by the Commission is due and submits that all the costs it declared to the Commission should be regarded as eligible.

By its second plea, it submits that the Commission infringed the obligation to cooperate in good faith in performing the contract in the sense that it did not properly carry out it own contractual obligations, in particular by waiting for a long time before replying to the proposal for additional action submitted by the applicant and by wrongfully terminating the MEDIS contract on the basis of inadequate results even though that issue had never been raised previously and could, in the applicant’s view, only have been attributed to the Commission.

By its third plea, the applicant invokes the disproportionate nature of the pecuniary sanction imposed by the Commission for the alleged failure to comply with certain accounting obligations which, even if they were to be proven to exist, would not give rise to a right, in accordance with the principles of Belgian administrative and civil law, to reimbursement of almost all of the advances agreed to. Consequently, the applicant maintains that it has a right to compensation in respect of the services carried out.

By its fourth plea, the applicant maintains that the Commission failed to comply with the principle of sound administration and of the rights to a fair hearing in the management of the verification and audit process.
EN Official Journal of the European Union C 205/43

Action brought on 18 June 2009 — Fedecom v Commission

(Case T-243/09)

2009/C 205/78

Language of the case: French

Parties

Applicant: Fédération de l’Organisation Économique Fruits et Légumes (Fedecom) (Paris, France) (represented by: C. Galvez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision on the basis of the fourth paragraph of Article 230 EC;

— Order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009) 203 final of 28 January 2009, (1) by which the Commission had declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers in the context of ‘contingency plans’ aimed at facilitating the marketing of agricultural products harvested in France and had instructed the French Republic to recover the aid in question.

In support of its claim, the applicant raises three pleas in law alleging:

— disregard of the concept of State aid within the meaning of Article 87(1) EC, since the Commission took the view that the voluntary contributions paid by the producers in the context of contingency plans (sectoral contributions) constitute State aid;

— disregard of the provisions of Article 87(3) EC, since, without carrying out an in-depth analysis of each contingency plan, the Commission took the view that the measures implemented as part of the contingency plans were not compatible with the common market;

— breach of the principle of legitimate expectations, since the Commission’s lack of action for a period of 10 years, when it must of necessity have been aware of the existence of the contingency plans, gave rise to expectations on the part of the producers as to the regularity of the contingency plans.

(1) OJ L 127, p. 11.
EN Official Journal of the European Union C 220/42

Action brought on 27 July 2009 — Carrols v OHIM — Gambettola (Pollo Tropical CHICKEN ON THE GRILL)

(Case T-291/09)

2009/C 220/87

Language in which the application was lodged: Spanish

Parties

Applicant: Carrols Corp. (New York, United States) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Giulio Gambettola (Los Realejos, Spain)

Form of order sought

— declare the present action and its annexes admissible;

— annul the decision of the Board of Appeal in so far as it relates to the grounds for invalidity under Article 52(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009;

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element ‘Pollo Tropical CHICKEN ON THE GRILL’ (Application No. 002938801) for goods and services in Classes 25, 41 and 43.

Proprietor of the Community trade mark: Giulio Gambettola.

Applicant for the declaration of invalidity: The applicant.

Trade mark right of applicant for the declaration: National figurative mark (No 2 201 552) containing the word element ‘Pollo Tropical CHICKEN ON THE GRILL’ and the national word mark ‘POLLO TROPICAL’ (No 2 201 543) for services in Class 43 (‘restaurant services’).

Decision of the Cancellation Division: Application for a declaration of invalidity dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misinterpretation of Articles 52(1)(b) and 53(1)(a) of Regulation (EC) No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 244/12

Action brought on 30 July 2009 — Unicid v Commission

(Case T-305/09)

2009/C 244/19

Language of the case: French

Parties

Applicant: Union nationale interprofessionnelle cidricole (Unicid) (Paris, France) (represented by: V. Ledoux and B. Néouze, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks annulment of Commission Decision C(2008) 7846 final of 10 December 2008, (1) by which the Commission found that the framework for actions liable to be carried out by French inter-branch organisations, consisting in aid for technical assistance, for production and marketing for quality products, for research and development and marketing for primary producers and undertakings engaged in processing and marketing agricultural products, financed through voluntary levies made compulsory by inter-ministerial decree, to be collected from the members of those inter-branch organisations, were a measure constituting State aid compatible with the common market.

The pleas in law and principal arguments relied on by the applicant are essentially identical or similar to those put forward in Case T-293/09 CNIEL v Commission and Case T-302/09 CNIPT v Commission.

(1) OJ 2009 C 116, p. 14.
EN Official Journal of the European Union C 244/6

Appeal brought on 17 July 2009 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 18 May 2009 in Joined Cases F-138/06 and F-37/08 Meister v OHIM

(Case T-284/09 P)

2009/C 244/10

Language of the case: German

Parties

Appellant: Herbert Meister (Muchamiel, Spain) (represented by H.-J. Zimmermann, lawyer)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought by the appellant

— That the judgment of the Civil Service Tribunal of 18 May 2009 in Case F-37/08 Meister v OHIM be set aside;

— that OHIM be ordered to pay the costs.

Pleas in law and main arguments

The appeal is brought against the judgment of the Civil Service Tribunal of 18 May 2009 in Joined Cases F-138/06 and F-37/08 Meister v OHIM, in which, inter alia, the appellant’s pleas in Case F-37/08 were rejected.

In support of his appeal, the appellant claims primarily that, the Civil Service Tribunal breached its duty of neutrality and objectivity, that it did not carry out an accurate assessment of the facts of the case but rather a one-sided assessment, and that it distorted the facts of the case. Furthermore, the Civil Service Tribunal is criticised for improper procedural confusion regarding the respective subject-matter of Case F-138/06 and Case F-37/08. In addition, the appellant alleges that the Civil Service Tribunal erred in law in its judgment on the facts of the case. Lastly, the appellant criticises the Civil Service Tribunal’s decision on costs.

The appellant takes the view that the Civil Service Tribunal, by its infringements, also breached its duty to provide lawful grounds for the judgment under appeal.