ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 109/26

Action brought on 10 February 2012 — Hemmati v Council

(Case T-68/12)

2012/C 109/54

Language of the case: English

Parties

Applicant: Abdolnaser Hemmati (Teheran, Iran) (represented by: B. Mettetal and C. Wucher-North, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul point 7 of table A of Annex VIII to Regulation (EU) 961/2010 amended, as set out in the Annex to Council Implementing Regulation 1245/2011 (1), insofar as the applicant is concerned;

— Annul point 7 of table A of Annex II to Council Decision 2010/413/CFSP amended, as set out in the Annex to Council Decision 2011/783/CFSP (2), insofar as it relates to the applicant;

— Annul Article 16(2) of Regulation (EU) 961/2010 that Regulation 1245/2011 implements, insofar as the applicant is concerned;

— Annul Article 19(1)(b) of Decision 2010/413/CFSP that Decision 783/2011/CFSP amends, insofar as the applicant is concerned;

— Annul Article 20(1)(b) of Decision 2010/413/CFSP that Decision 783/2011/CFSP amends, insofar as the applicant is concerned;

— Annul the letter — decision dated 5 December 2011; and

— Order the defendant to pay the costs incurred by the present action.

Pleas in law and main arguments

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

1. First plea in law, alleging — that the Council breached the procedural requirements to give adequate reasons in support of listing the applicant in the contested Regulation 1245/2011 and Decision 2011/783/CFSP;

2. Second plea in law, alleging — that, even if the Court was to admit that the motivation given by the Council is sufficient, the Council committed a manifest error in the assessment of facts, since the applicant is not linked to the interests of the ‘Daftar’ and does not contribute to the financing of the so-called ‘regime’s’ strategic interests, nor its alleged nuclear programme. Accordingly, the substantive criteria for designation under Decision 2010/413/CFSP, that Decision 2011/783/CFSP amends, are not met in respect of the applicant, thus the Council committed a manifest error of assessment in determining whether or not those criteria were met. Furthermore, the Council also failed to apply the relevant test correctly;

3. Third plea in law, alleging — that the designation of the applicant infringes his property rights and the principle of proportionality.

(1) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ L 319, 2.12.2011, p. 11)

(2) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ L 319, 2.12.2011, p. 71)
EN Official Journal of the European Union C 109/22

Action brought on 8 February 2012 — K2 Sports Europe v OHIM — Karhu Sport Iberica (SPORT)

(Case T-54/12)

2012/C 109/47

Language in which the application was lodged: English

Parties

Applicant: K2 Sports Europe GmbH (Penzberg, Germany) (represented by: J. Güell Serra, lawyer)

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

Other party to the proceedings before the Board of Appeal: Karhu Sport Iberica, SL (Cordoba, 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 29 November 2011 in case R 986/2010-4;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in black and white ‘SPORT’, for goods in classes 18, 25 and 28 — Community trade mark application No 7490113

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

Mark or sign cited in opposition: German trade mark registration No 302008015437 of the word mark ‘K2 SPORTS’, for goods in classes 18, 25 and 28; International trade mark registration No 982235 of the word mark ‘K2 SPORTS’, for goods in classes 18, 25 and 28

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) did not take into consideration the fact that, as a consequence of the identity in the goods at issue the differences between the marks are attenuated; (ii) made an incorrect assessment of the mark applied for, taking the view that there was no chance that the figurative element might be perceived by the public as a representation of the letter K; (iii) incorrectly presumed that being the word ‘SPORT’ understood in all the relevant territories, it should be omitted in the comparative analysis, (iv) erred in making the comparison of the signs; and (v) there is a likelihood of confusion between the conflicting marks even if the word ‘SPORT’ may have a weak distinctive character.
EN Official Journal of the European Union C 118/32

Action brought on 27 February 2012 — Elegant Target Development and Others v Council

(Case T-90/12)

2012/C 118/54

Language of the case: English

Parties

Applicants: Elegant Target Development Ltd (Hong Kong, China); Eternal Expert Ltd (Hong Kong); Giant King Ltd (Hong Kong); Golden Charter Development Ltd (Hong Kong); Golden Summit Investments Ltd (Hong Kong); Golden Wagon Development Ltd (Hong Kong); Grand Trinity Ltd (Hong Kong); Great Equity Investments Ltd (Hong Kong); Great Prospect International Ltd (Hong Kong); Harvest Supreme Ltd (Hong Kong); Key Charter Development Ltd (Hong Kong); King Prosper Investments Ltd (Hong Kong); Master Supreme International Ltd (Hong Kong); Metro Supreme International Ltd (Hong Kong); Modern Elegant Development Ltd (Hong Kong); Prosper Metro Investments Ltd (Hong Kong); Silver Universe International Ltd (Hong Kong); and Sparkle Brilliant Development Ltd (Hong Kong) (represented by: F. Randolph, M. Lester, Barristers, and M. Taher, Solicitor)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2011/783/CFSP (1) and Council Implementing Regulation (EU) No 1245/2011 (2), in so far as the names of the applicants were added to the list of persons and entities to which restrictive measures apply;

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on four pleas in law.

1. First plea in law, alleging that the defendant failed to give adequate or sufficient reasons for the inclusion of the names of the applicants in the list of persons and entities to which restrictive measures apply.

2. Second plea in law, alleging that the defendant failed to fulfil the criteria for listing, and/or committed a manifest error of assessment in determining that those criteria were satisfied in relation to the applicants and/or included the applicants without an adequate legal basis for doing so.

3. Third plea in law, alleging that the defendant failed to safeguard the applicants’ rights of defence and right to effective judicial review.

4. Fourth plea in law, alleging that the defendant infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, and reputation.

(1) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71)

(2) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11)
EN Official Journal of the European Union C 118/28

Action brought on 16 February 2012 — Mecafer v Commission

(Case T-74/12)

2012/C 118/47

Language of the case: English

Parties

Applicant: Mecafer SA (Valence, France) (represented by: R. MacLean, Solicitor)

Defendant: European Commission

Form of order sought

— Declare the application admissible;

— Partially annul Article 1 of Commission Decision C(2011) 8804 final, of 6 December 2011, insofar as it only grants a partial refund of the anti-dumping duties paid by the applicant and unlawfully retains additional amounts of refunds of anti-dumping duties legitimately due to the applicant;

— Order maintenance in force of the contested decision until the European Commission has adopted measures necessary to comply with any judgment of the Court; and

— Order the defendant to pay the legal costs and expenses of the procedure.

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant committed a manifest error of assessment in applying an appropriate and reasonable unrelated EU importer profit margin, thereby failing to establish a reliable export price for the purpose of calculating the correct anti-dumping refund amount leading to infringements of Articles 2(9) and 18(3) of Council Regulation (EC) No 1225/2009. (1)

2. Second plea in law, alleging that the defendant committed a manifest error of assessment by deducting anti-dumping duties as a cost in the calculation of the export price thereby failing to establish a reliable dumping margin for the purpose of calculating the correct anti-dumping refund amount and in doing so violated Articles 2(9), 2(11) and 11(10) of Council Regulation (EC) No 1225/2009.

3. Third plea in law, alleging that the defendant failed to inform it of the necessary requirements for satisfying Article 11(10) of Council Regulation (EC) No 1225/2009 in a prompt and adequate manner thereby committing violations of the rights of defence enshrined in EU general law as well as the principle of sound administration also established in EU general law and also Article 41 of the Charter of Fundamental Rights of the European Union.

(1) Council Regulation (EC) 1225/2009 on Protection Against Dumped Imports From Countries not Members of the European Community, OJ 2009 L 343, p. 51.
EN Official Journal of the European Union C 194/24

Action lodged on 30 April 2012 — Breyer v Commission

(Case T-188/12)

2012/C 194/41

Language of the proceedings: German

Parties

Applicant: Patrick Breyer (Wald-Michelbach, Germany) (represented by: M. Starostik, lawyer)

Defendant: European Commission

Form of order sought by the applicant

— Annul the Decision of the Commission of 16 March 2012 on Az. Ares(2012)313186;

— Annul the Decision of the Commission of 3 April 2012 on Az. Ares(2012)399467 in so far as access to the written submissions of Austria in proceedings C-189/09 has not been granted;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant claims with regard to the Decision of the Commission of 16 March 2012:

1. First plea in law, alleging incorrect application of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) (protection of legal advice) — According to the applicant, it does not adversely affect the protection of legal advice to publish legal opinion Ares(2010) 828204 of the Commission’s legal service, which discusses the question of whether Directive 2006/24/EC (2) can be amended so that it is left to Member States of the European Union whether or not to ‘retain’ telecommunications data of all citizens without suspicion and cause for a hypothetical case of need. — In any case, the public interest outweighs the knowledge of the opinion.

2. Second plea in law, alleging incorrect application of Article 4(3) first sub paragraph of Regulation No 1049/2001 (protection of the decision-making process) — According to the applicant, it does not adversely affect the protection of the decision-making process of the Commission to publish the legal opinion mentioned above of the Commission’s legal service. — In any case, the public interest outweighs the knowledge of the opinion.

In support of the action, with regard to the Decision of the Commission of 3 April 2012, the applicant pleads the incorrect application of Article 2(3) of Regulation No 1049/2001. In that regard, the applicant claims that, contrary to the view of the Commission, the written submissions of a Member State (here: Austria) to the European Court of Justice (here: in proceedings C-189/09), copies of which the Commission received as a party to the proceedings, are subject to the scope of application of Regulation No 1049/2001.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

(2) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).
1.

First plea in law, alleging that the Civil Service Tribunal, when it examined the first plea in law submitted at first instance claiming that Article 45(1) of the Staff Regulations of Officials of the European Union had been infringed and claiming a manifest error of assessment, infringed European Union law by: — using a criterion which was not provided for under Article 45(1) of the Staff Regulations (see paragraphs 46 and 47 of the judgment under appeal); — providing inadequate reasoning for its judgment and calling into question the classification into two function groups provided for in Article 5 of the Staff Regulations (see paragraphs 52 to 54 of the judgment under appeal); and — providing reasoning which contained substantive inaccuracies and by misreading the language criterion referred to in Article 45(1) of the Staff Regulations (see paragraphs 50 and 51 of the judgment under appeal)
EN Official Journal of the European Union C 217/24

Action brought on 16 May 2012 — Al Assad v Council

(Case T-202/12)

2012/C 217/51

Language of the case: French

Parties

Applicant: Bouchra Al Assad (Damascus, Syria) (represented by: G. Karouni, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

— Annul Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, in so far as it refers to Mrs Bouchra (aka Bushra) Al Assad;

— Order the Council of the European Union to pay the costs, in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law, which are for all essential purposes identical or similar to those relied on in Case T-383/11 Makhlouf v Council. (1)

(1) OJ 2011 C 282, p. 30.
EN Official Journal of the European Union C 194/27

Appeal brought on 11 May 2012 by Luigi Marcuccio against the order of the Civil Service Tribunal of 29 February 2012 in Case F-3/11, Marcuccio v Commission

(Case T-207/12 P)

2012/C 194/45

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Annul in its entirety and without exception whatsoever the order under appeal;

— Grant all the appellant’s claims in the proceedings at first instance under appeal;

— Order the defendant to pay to the appellant all the costs incurred by him in the appeal proceedings;

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to in the preceding paragraphs.

Pleas in law and main arguments

The present appeal is brought against the order of 29 February 2012 in Case F-3/11 rejecting as manifestly inadmissible an action seeking, first, annulment of the alleged refusal on the part of the European Commission to place a document on the file relating to his accident and, second, an order that the Commission pay to the appellant the sum of EUR 1 000 by way of compensation for the damage alleged.

The appellant relies on two grounds of appeal.

1. First ground, alleging absolute failure to state reasons for the ruling that the action was manifestly inadmissible and manifest uncertainty, inconsistent reasoning, distortion and misrepresentation of the facts, self-evident, illogical, irrelevant and unreasonable reasoning, infringement of the obligation of clare loqui, failure to rule on one of the appellant’s claims, and incorrect and unreasonable interpretation and application of: Articles 26 and 26a of the Staff Regulations of Officials of the European Union; the rules of law relating to the concept of an actionable measure (in particular, at paragraphs 30 to 47 of the order under appeal); the rules of law concerning the processing of and access by the individual to personal data affecting him which is held by a European Union institution;
EN Official Journal of the European Union C 217/26

Action brought on 25 May 2012 — Sunrider v OHIM — Nannerl (SUN FRESH)

(Case T-221/12)

2012/C 217/56

Language in which the application was lodged: English

Parties

Applicant: The Sunrider Corp. (United States) (represented by: N. Dontas and E. Markakis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nannerl GmbH & Co. KG (Anthering bei Salzburg, Austria)

Form of order sought

— Declare the present action admissible;

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2012 in case R 2401/2010-4;

— Order OHIM to pay the costs incurred by the applicant in the course of the present proceedings before the General Court; and

— Order OHIM to pay the costs necessarily incurred by the applicant in the course of the underlying proceedings before the Fourth Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘SUN FRESH’, for goods in class 32 — Community trade mark application No 6171433

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

Mark or sign cited in opposition: Community trade mark registration No 605014 of the word mark ‘SUNNY FRESH’, for goods in class 5; UK trade mark registration No 2016689 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in class 32; Irish trade mark registration No 169766 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in class 32; Hungarian trade mark registration No 144500 for the word mark ‘SUNNYFRESH’, for goods in class 5; Benelux trade mark registration No 574389 for the figurative mark in black and white ‘SUNRIDER SUNNY FRESH’, for goods in classes 5, 29 and 32

Decision of the Opposition Division: Upheld the opposition and rejected the CTM application

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition

Pleas in law:

— Infringement of Article 42(2) and (3) of Council Regulation No 207/2009

— Infringement of Article 75 second sentence and Article 76(1) second sentence of Council Regulation No 207/2009
—

that import duties were entered in the account contrary to Article 220(2)(b) Community Customs Code (CCC) (1), since the defendant erroneously considered that anti-dumping regulations adopted against imports from third countries are automatically applicable to goods in free circulation in the EU-Turkey customs union, and as a result, the defendant erroneously failed to inform traders that the AD Regulation concerned was also applicable to goods in free circulation in the EU-Turkey customs union. Alternatively, the Turkish authorities committed an error when they confirmed that the anti-dumping duties imposed on goods from third countries were not applicable to goods in free circulation in the EU-Turkey customs union. Furthermore, the Spanish customs authorities also committed an error since they assumed that goods accompanied by an A.TR certificate could not be subject to any additional duties or trade protection measures, and failed to inform economic operator that their imports from Turkey could be subject to trade measures, even if such goods were in free circulation.
EN Official Journal of the European Union C 217/28

Action brought on 30 May 2012 — Unister v OHIM (fluege.de)

(Case T-244/12)

2012/C 217/59

Language of the case: German

Parties

Applicant: Unister GmbH (Leipzig, Germany) (represented by H. Hug and A. Kessler-Jensch, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 March 2012 in Case R 2149/2011-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘fluege.de’ for goods in Classes 25, 28, 35, 39, 41 and 43

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

— infringement of Article 7(1)(b) and (c) of Regulation No 207/2009
—

Repair the damages caused to the applicant by the unlawful decision of the EU Delegation to Serbia of 23 March 2012 to cancel the award of the contract ‘Strengthening the institutional capacity of the Commission for protection of Competition (CPC) in the Republic of Serbia’ (OJ 2011 S 147) which was awarded to the applicant, as leader of the consortium for the project above;
3.

Thirdly, the defendant erred in setting the fine imposed on the applicants as it incorrectly assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value. The defendant also failed to explain in the manner required by law how it assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value