ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 183/23

Appeal brought on 5 May 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 21 February 2008 in Case F-31/07, Putterie-De-Beukelaer v Commission

(Case T-160/08 P)

(2008/C 183/45)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: C. Berardis-Kayser and K. Herrmann, Agents)

Other party to the proceedings: Françoise Putterie-De-Beukelaer (Brussels, Belgium)

Form of order sought by the appellant

— set aside the judgement under appeal;

— refer the case back to the CST;

— reserve the costs.

Pleas in law and main arguments

By this appeal, the Commission requests that the judgment of the Civil Service Tribunal (CST) of 21 February 2008 in Case F-31/07 Putterie-De-Beukelaer v Commission, in which the CST annulled Ms Putterie-De-Beukelaer's Career Development Report concerning the period from 1 January 2005 to 31 December 2005, be set aside in so far as that report does not acknowledge her potential to carry out duties in category B*.

In support of its appeal, the Commission relies on a single plea in law, alleging, first, infringement by the CST of the principles relating to the scope of the review exercised by the Community judicature of its own motion and, second, infringement of the prohibition on adjudicating ultra petita.

The Commission submits that the CST was not entitled to raise of its own motion a plea concerning the substantive legality of the contested act alleging infringement of the respective scope of Article 43 of the Staff Regulations of Officials of the European Communities and Article 10(3) of Annex XIII to those regulations, since substantive pleas are not an absolute bar to proceeding with an action.

In the alternative, the Commission claims that, in so far as paragraphs 75 and 76 of the judgment under appeal could be considered separable from the plea alleging the substantive legality of the contested measure and be categorised as a separate plea alleging that the author of the contested act exceeded its power, the CST infringed the Commission's rights of defence, since the latter was not heard on that point in accordance with Article 77 of the Rules of Procedure of the CST.
EN Official Journal of the European Union C 209/58

Action brought on 17 June 2008 — Luxembourg v Commission

(Case T-232/08)

(2008/C 209/104)

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: F. Probst, acting as Agent and M. Theisen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul decision C(2008) 1283 of the Commission of the European Communities of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as is excludes from Community financing for the financial years 2004-2005 the expenditure of paying agencies in the amount of EUR 949 971,51 on the ground that it does not comply with Community rules;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (1) in so far as is excludes certain expenditure incurred by Luxembourg for the years 2004-2005.

As regards the planning of on-the-spot checks of recipients, the applicant submits that the Commission wrongly complained that it had carried out the majority of the checks in the same period of the year instead of spreading them over the whole year and without taking into account the optimal period for checking certain commitments.

In addition, the applicant claims that the on-the-spot checks carried out effectively related to the entirety of the recipient's commitments and obligations from the beginning of the commitment period, contrary to what the Commission claimed in the pre-litigation stage before the conciliation body.

Concerning the documentation of the on-the-spot checks, the applicant takes the view that the mere fact that the control reports are not sufficiently detailed, as claimed by the Commission in the pre-litigation stage, does not mean ipso facto that the controls were not carried out and does not prove that there is an actual financial risk such as to give rise to the application of a flat rate correction.

Finally, the applicant submits that the non-application of sanctions where there is an over-declaration by the beneficiaries could not constitute the basis for a flat rate correction of 5 %, since the actual level of irregular expenditure can be determined exactly. Moreover, according to the applicant the amount of irregular expenditure is extremely low in relation to the total amount paid by the Community.

(1) Notified under document number C(2008) 1283, OJ 2008 L 109, p. 35.
EN Official Journal of the European Union C 209/55

Action brought on 23 May 2008 — Polson and Others v Commission

(Case T-197/08)

(2008/C 209/100)

Language of the case: English

Parties

Applicants: Magnus Polson (Lerwick, United Kingdom), Garry Sandison (Lerwick, United Kingdom), Andrew Anderson (Whalsay, United Kingdom), Ian Johnston (Lerwick, United Kingdom) (represented by: R. Murray, Solicitor, R. Thompson, QC)

Defendant: Commission of the European Communities

Form of order sought

— annul Articles 1(2), 3, 4 and 5 of Commission Decision State Aid No C 39/06 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented in the United Kingdom;

— order the Commission to pay costs of the proceedings.

Pleas in law and main arguments

In the present case, the applicants seek partial annulment of Commission Decision 2008/166/EC, State Aid No C 39/06 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented by the United Kingdom (1). In the contested decision the Commission found that the aid was incompatible with the common market as far as it concerned aid granted for the first time acquisition of a share in a second-hand fishing vessel and required the United Kingdom to recover the aid granted. The applicants are the beneficiaries of the aid to be recovered.

The applicants seek annulment of the contested decision on the following grounds:

— The Commission erred in law in finding that all payments made for first time acquisition of a share in a second-hand fishing vessel were incompatible with the common market and had to be repaid; the applicants claim that the awarded grants fall within the scope of Commission Regulation 875/2007 (2) and should be therefore considered de minimis aids compatible with the common market; they claim that Articles 1(2) and Articles 3 to 5 of the contested decision unlawfully extend to beneficiaries of aid who complied in substance with the relevant Community guidelines;

— The Commission erred in law in finding that the recovery of these payments would be compatible with Article 14(1) of Council Regulation (EC) No 659/1999 (3) as well as with the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

(1) OJ 2008 L 55, p. 27.

(2) Commission Regulation (EC) No 875/2007 of 24 July 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector and amending Regulation (EC) No 1860/2004, OJ 2007 L 193, p. 6.

(3) 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 223/53

Action brought on 30 June 2008 — Biotronik v OHIM (BioMonitor)

(Case T-257/08)

(2008/C 223/94)

Language of the case: German

Parties

Applicant: Biotronik Meβ- und Therapiegeräte GmbH (Berlin, Germany) (represented by: U. Sander and R. Böhm, 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 24 April 2008 in Case No R 466/2007-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BioMonitor’ for goods and services in Classes 9, 10 and 38, in which the additional list of goods for Class 10 would be restricted (Application No 4 556 023).

Decision of the Examiner: Application rejected.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the trade mark applied for does not lack distinctive character and it is not a descriptive term.

(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 223/52

Appeal brought on 23 June 2008 by Frantisek Doktor against the judgment of the Civil Service Tribunal delivered on 16 April 2008 in Case F-73/07, Doktor v Council

(Case T-248/08 P)

(2008/C 223/91)

Language of the case: French

Parties

Appellant: Frantisek Doktor (Bratislava, Slovakia) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

— Annul the judgment delivered by the European Union Civil Service Tribunal on 16 April 2008 in Case F-73/07;

— Grant the pleas seeking annulment and compensation submitted by the applicant at first instance;

— Order the defendant at first instance to pay all the costs of the action for annulment and of the appeal.

Pleas in law and main arguments

By the present appeal, the appellant seeks annulment of the judgment of the Civil Service Tribunal (CST) of 16 April 2008, delivered in Case F-73/07 Doktor v Council, dismissing the action by which the applicant had sought, on the one hand, annulment of the decision of the Council to dismiss the applicant at the end of his probationary period and, on the other, damages in compensation for the professional, financial and non-pecuniary losses allegedly suffered.

In support of his appeal, the appellant submits that the CST i) distorted the clear sense of certain pieces of evidence, in particular by basing a number of its conclusions on an incorrect material assessment of the elements of the documents submitted to it; ii) infringed the applicant's rights of the defence by not taking into consideration or not answering a number of elements or arguments put before it; and iii) committed two errors in law with respect to its interpretation of Community law relating to the applicant's right to complete his probationary period under normal conditions and to the administration's ability to supplement the reasoning of a complaint during the written procedure before the Community Courts.
EN Official Journal of the European Union C 247/21

Action brought on 6 August 2008 — Laura Ashley v OHIM — Tiziana Bucci (LAURA ASHLEY)

(Case T-301/08)

(2008/C 247/42)

Language in which the application was lodged: English

Parties

Applicant: Laura Ashley Ltd (London, United Kingdom) (represented by: J. Guise, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Tiziana Bucci (Viareggio, Italy)

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 28 May 2008 in case R 1237/2007-1 and reject the opposition; 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 ‘LAURA ASHLEY’ for various goods in classes 3, 18, 24 and 25

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: International trade mark registration No 311 675 of the figurative mark ‘Ashley's’ for goods in class 25; Italian trade mark registration No 517 151 of the figurative mark ‘Ashley's’ for goods in class 3, 18, 24 and 25; international trade mark registration No 646 926 of the figurative mark ‘Ashley's il primo Cashmere Italiano’ for goods in class 25

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(5) of Council Regulation No 40/94 as the Board of Appeal failed to establish whether the applicant was using the Community trade mark applied for without due cause.
EN Official Journal of the European Union C 236/15

Action brought on 15 July 2008 — Al-Aqsa v Council

(Case T-276/08)

(2008/C 236/25)

Language of the case: Dutch

Parties

Applicant: Al-Aqsa (Heerlen, Netherlands) (represented by: J. Pauw and M. Uiterwaal, lawyers)

Defendant: Council of the European Union

Form of order sought

— declare that the Council is under an obligation to compensate the applicant for the damage which it has suffered, in the amount of EUR 10 600 000, plus interest to be calculated up to the date of judgment in the present case, or at least such compensation as the Court may determine;

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

Pleas in law and main arguments

The applicant is seeking compensation in respect of the damage which it claims to have suffered by reason of the fact that Council Decision 2003/480/EC of 27 June 2003 (1) placed it on the list of persons to whom Regulation (EC) No 2580/2001 (2) is to apply. The applicant's inclusion on the list has subsequently been confirmed on the occasion of each update.

The applicant contends that these decisions are unlawful for a variety of reasons. The applicant first points out that Decision 2006/379/EC of 29 May 2006 (3) was annulled by the Court on the ground that it failed to meet the requirement of an adequate statement of reasons (4). The applicant contends further that the decisions are vitiated by a number of substantive defects, and refers in this connection to its pleas in law in Cases T-327/03 and T-348/07 Al-Aqsa v Council (5).

In issue here, according to the applicant, are sufficiently serious breaches of rights conferred on individuals as accordingly to justify the award of compensation. The damage suffered by the applicant involves both damage to its reputation and non-material damage, in respect of which the Council has been liable since 28 June 2003, that being the date on which the European measures entered into force.

(1) Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/974/EC (OJ 2003 L 160, p. 81).

(2) Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

(3) Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21).

(4) Judgment of the Court of First Instance of 11 July 2007 in Case T-327/03 Al-Aqsa v Council.

(5) OJ 2003 C 289, p. 30, and OJ 2007 C 269, p. 61, respectively.
EN Official Journal of the European Union C 260/14

Action brought on 18 July 2008 — Perry v Commission

(Case T-280/08)

(2008/C 260/25)

Language of the case: French

Parties

Applicant: Claude Perry (Paris, France) (represented by: J. Culioli, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— rule that the Commission acted improperly;

— rule that that improper conduct gives rise to the non-contractual liability of the Community;

— rule that the applicant suffered loss as a result of that improper conduct;

— rule that the Community is required to compensate that loss;

— take formal notice that Mr Perry estimates his loss at EUR 1 000 000;

— order the Community to pay Mr Perry EUR 1 000 000;

— order the Community to pay all the costs and outlays of the proceedings;

— rule that it is equitable that the Community pay the costs and fees of the defence, in the sum of EUR 10 000.

Pleas in law and main arguments

The applicant seeks compensation for the loss which it considers it suffered as a result of accusations of misuse of Community subsidies in the performance of certain contracts concluded between the applicant's companies and the Commission in the context of the European Union humanitarian aid programmes for Bosnia and the Great Lakes region of Africa.

The pleas and main arguments put forward by the applicant are identical to those put forward in case T-132/98 Perry Group and Isibiris v Commission (1).

(1) OJ 1998 C 312, p. 20.
EN Official Journal of the European Union C 247/13

Appeal brought on 9 July 2008 by Petrus Kerstens against the judgment of the Civil Service Tribunal delivered on 8 May 2008 in Case F-119/06, Kerstens v Commission

(Case T-266/08 P)

(2008/C 247/25)

Language of the case: French

Parties

Appellant: Petrus Kerstens (Overijse, Belgium) (represented by C. Mourato, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— Annul the contested judgment;

— refer the case back to the European Union Civil Service Tribunal;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal the appellant seeks the annulment of the judgment of the Civil Service Tribunal (the Tribunal) of 8 May 2008 in Case F-119/06 Kerstens v Commission dismissing the appellant's action seeking (i) annulment of the decision of 8 December 2005 of the Board of the Office for Administration and Payment of Individual Entitlements altering the organisation chart of that office, inasmuch as that decision had the effect of reassigning the appellant, then Head of the ‘Resources’ unit, to a research position and (ii) damages in compensation for the damage allegedly suffered.

In support of his action, a ground of appeal relied on by the appellant is that the Tribunal distorted the clear sense of the facts and the evidence and committed an error of law in applying Article 7 of the Staff Regulations and the regulations on disciplinary measures and misuse of powers in that the Tribunal concluded that there was no infringement of Article 7 on the basis of inaccurate findings of fact.

The appellant further claims that the Tribunal did not provide an adequate statement of reasons in the contested judgment in respect of the assessment made by the Office for Administration and Payment of Individual Entitlements of the interests of the service and in respect of the creation of an additional research department in the light of the Office's chronic shortage of staff.

Thirdly, the appellant considers that his rights of defence were infringed, inasmuch as the reasoning of the Tribunal on several points was based on the appellant's career development report for the period from 1 January to 31 December 2006, lodged for the first time by the Commission at the hearing, and the appellant had no opportunity to express his point of view in relation to that reasoning.
EN Official Journal of the European Union C 272/33

Action brought on 12 August 2008 — Veromar di Tudisco Alfio & Salvatore v Commission

(Case T-313/08)

(2008/C 272/61)

Language of the case: Italian

Parties

Applicant: Veromar di Tudisco Alfio & Salvatore Snc (Catania, 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 Official Journal 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 similar to those relied on in Case T-305/08 Italian Republic v Commission. In particular, infringement of Article 12 of the EC Treaty is alleged. In that regard, the applicant submits that the contested regulation discriminates in favour of the Kingdom of Spain, the quota for which was deemed to be exhausted on 23 June 2008 and not 16 June 2008.
EN Official Journal of the European Union C 272/32

Action brought on 5 August 2008 — Fitoussi v OHIM — Loriot (IBIZA REPUBLIC)

(Case T-311/08)

(2008/C 272/59)

Language in which the application was lodged: French

Parties

Applicant: Paul Fitoussi (Vincennes, France) (represented by: K. Manhaeve, T. van Innis and G. Glas, 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: Bernadette Nicole J. Loriot (Ibiza, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 7 May 2008 in Case R 1135/2007-2;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bernadette Nicole J. Loriot

Community trade mark concerned: Figurative mark ‘IBIZA REPUBLIC’ for goods in Classes 25, 41 and 43 — application No 3 868 072

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

Mark or sign cited in opposition: National figurative mark in the form of a five-pointed star surrounded by a circle, for goods in Class 25

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Council Regulation No 40/94 in as much as i) the earlier mark consists of a representation of a five-pointed star surrounded by a circle and not only a star; ii) the earlier mark is an intrinsically strong mark and not a mark with little distinctive character; and iii) the graphic element of the earlier mark dominates the word element and not vice versa.
EN Official Journal of the European Union C 272/35

Action brought on 12 August 2008 — Di Mercurio v Commission

(Case T-318/08)

(2008/C 272/66)

Language of the case: Italian

Parties

Applicant: Salvatore Di Mercurio (Pachino, 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 272/36

Action brought on 12 August 2008 — Pescatori San Francesco di Paola e Sorrentino v Commission

(Case T-323/08)

(2008/C 272/71)

Language of the case: Italian

Parties

Applicants: Società Cooperativa Pescatori San Francesco di Paola and Filippo Sorrentino (Vibo Valentia, 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.