ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 44/59

Action brought on 2 December 2008 — Villa Almè v OHIM — Bodegas Marqués de Murrieta (i GAI)

(Case T-546/08)

(2009/C 44/101)

Language in which the application was lodged: Italian

Parties

Applicant: Villa Almè Azienda vitivinicola di Vizzotto Giuseppe (Mansuè, Italy) (represented by: G. Massa, lawyer, P. Massa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bodegas Marqués de Murrieta, SA (Logroño, Spain)

Form of order sought

— Annul the Decision of 24/09/08 of the First Board of Appeal (R 1695/2007-1) and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘i GAY’ (registration application No 4.458.295) for goods in Class 33 (wines).

Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Marqués de Murrieta S.A.

Mark or sign cited in the opposition proceedings: Spanish word mark (No 2.315.558) ‘YGAI’ and Community figurative mark (No 1.707.729) and Community word mark (No 1.699.412) ‘MARQUES DE MURRIETA YGAY’, for goods in Class 33 (wines).

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 55/33

Action brought on 17 December 2008 — Commission v Domótica

(Case T-552/08)

(2009/C 55/61)

Language of the case: Portuguese

Parties

Applicant: Commission (represented by A.M. Rochaud-Jöet and S. Petrova, Agents, assisted by G. Anastácio and A.R. Andrade, lawyers)

Defendant: Domótica, Estudo e Projecto de Edifícios Inteligentes, Lda (Lisbon, Portugal)

Form of order sought

— An order that the defendant should pay the applicant the sum of EUR 124 319,22, being the repayment of an advance paid by the applicant in performance of contract No BU/466/94 PO/ES, concluded in connection with the Thermie programme and terminated on grounds of the failure of the defendant and other cocontractors to perform their contractual obligations, with an increase of EUR 48 000 by way of default interest accrued until 30 September 2008 and interest still to fall due until full and final payment;

— An order that the defendant should pay the costs.

Pleas in law and main arguments

On 17 January 1995 the Commission of the European Communities concluded Thermie contract No BU/466/94 PO/ES with the defendant, with the teaching hospitals of Coimbra and with the company Técnicas Reunidas S.S., pursuant to Regulation (EEC) No 2008/90 (1).

The defendant was appointed to be project co-ordinator and took on responsibility for submitting to the Commission the necessary documents, and to act as link between the contractors and the Commission. The liability of the cocontractors was joint and several.

On 10 February 1995, in accordance with what had been agreed, the Commission paid the advance of 30 %, that is to say, EUR 176 693.

On 24 May 2000 the Commission rescinded the contract for just cause (having put the defendant on notice), putting forward the following failures to perform contractual obligations:

— delays in performance not communicated timeously to the Commission;

— Domótica's inability to begin to perform the contract (admitted by the defendant);

— failure to send to the Commission financial and technical reports in good time and due form;

— failure to conclude work implementing the project within the original period, or within the extension subsequently granted (31 August 2000).

As a result of the wrongful conduct of the cocontractors, the latter failed to fulfil their contractual obligations.

The contract provided that it was possible for the Commission to demand repayment, in whole or in part, of its financial assistance, together with interest in the case of non-performance by the cocontractors.

The Commission is entitled to repayment of EUR 172 499,22, equivalent to the value of the original amount advanced, together with interest accrued, as from 10 February 1995, the costs of part performance incurred by the defendant and accepted by the Commission having been deducted, to which sum must be added interest not yet fallen due.

(1) Council Regulation (EEC) No 2008/90 of 29 June 1990 concerning the promotion of energy technology in Europe (thermie programme) (OJ 1990 L 185, p. 1).
EN Official Journal of the European Union C 55/43

Action brought on 23 December 2008 — Germany v Commission

(Case T-576/08)

(2009/C 55/77)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Regulation (EC) No 983/2008 of 3 October 2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community;

— maintain the effects of the annulled regulation;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Regulation (EC) No 983/2008 of 3 October 2008 (1), which contains the annual plan for 2009 in respect of the distribution of food to the most deprived persons in the Community.

In the applicant's submission, the regulation has no legal basis in Community law. While it was adopted on the basis of Regulation (EC) No 1234/2007 (2), which in turn has the common agricultural policy of the Community (Articles 36 and 37 EC, in conjunction with Article 33 EC) as legal basis, it does not, however, meet the requirements laid down therein.

The plan was originally devised by way of a competence ancillary to the common agricultural policy as essentially available intervention stocks were used for a social purpose. For several years, on the other hand, the plan has been operating exclusively through the purchase of food on the market since, because of common foreign policy reforms, intervention stocks hardly remain. The applicant regards the plan today as a purely social-policy instrument of the Community for which there is no legal basis (principle of conferred powers).

The contested regulation is thus not compatible with the requirements in Article 27(2) of Regulation No 1234/2007 which allows the purchase of food for the plan only if intervention stocks have temporarily reached their capacity. In the meantime it has, however, become a permanent state of affairs that the purchase of food largely predominates.

Nor does the contested regulation pursue any of the objectives of the common agricultural policy that are laid down in Article 33(1) EC.

In order to avoid difficulties in the execution of the annual plan, the applicant calls on the court to limit the effects of the annulment to the provision on purchases in Article 2 of Regulation No 983/2008 in conjunction with Annex II thereto.

(1) Commission Regulation (EC) No 983/2008 of 3 October 2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community (OJ 2008 L 268, p. 3).

(2) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).
EN Official Journal of the European Union C 69/40

Appeal brought on 12 January 2009 by Georgi Kerelov against the order of the Civil Service Tribunal delivered on 12 December 2007 in Case F-110/07 Kerelov v Commission

(Case T-100/08 P)

(2009/C 69/92)

Language of the case: French

Parties

Appellant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by A. Kerelov, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— Set aside the order of the Civil Service Tribunal of the European Union of 12 December 2007 in Case F-110/07 Kerelov v Commission;

— Grant the applicant the form of order sought at first instance;

— Order the defendant to pay the costs in their entirety.

Pleas in law and main arguments

By the present appeal, the applicant is seeking annulment of the order of the Civil Service Tribunal of 12 December 2007 in Case F-110/07 Kerelov v Commission dismissing as manifestly inadmissible the action by which the applicant sought annulment of the decision of the director of the European Personnel Selection Office (EPSO) not to transmit to the applicant information and documents relating to competition EPSO/AD/46/06.

In support of his appeal, the applicant relies on several pleas in law alleging or for:

— infringement of the principle of administrative procedure inasmuch as the Tribunal considered that the initiating application did not put forward any pleas in law without ascertaining of its own motion whether the decision contested at first instance was unlawful, without limiting itself to the complaints put forward by the applicant;

— infringement of the right of due process and of the principle of the impartiality of the Tribunal, inasmuch as the Tribunal dismissed the applicant's action as manifestly inadmissible without permitting him to correct his application at a point in time when the applicant could no longer bring a new action in accordance with the rules, since the time-limit for bringing actions had expired;

— infringement of the principles of the right to be heard by a court and of the public nature of the proceedings, inasmuch as no hearing took place;

— infringement of the principle of procedural fairness inasmuch as the Tribunal did not hear the applicant on the issue of the inadmissibility of his action;

— infringement of the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance inasmuch as the Tribunal has, in reality, introduced a ‘crystallisation of the contentious debate’ rule by considering that the application contained no pleas in law;
‘Action brought on 21 April 2009 — Biofrescos — Comércio de Produtos Alimentares Lda v Commission of the European Communities

(Case T-159/09)

2009/C 193/67

Language of the case: Portuguese

Parties

Applicant: Biofrescos — Comércio de Produtos Alimentares Lda (Linda-a-Velha, Portugal) (represented by: A. Magalhães e Menezes, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

— Annul Commission Decision C (2009) 72 final of 16 January 2009 rejecting the applicant’s request for remission of import duties in the sum of EUR 41 271,09 and ordering that that amount be entered into the accounts a posteriori.

Pleas in law and main arguments

Between September 2003 and February 2005, the applicant imported a number of consignments of frozen prawns from Indonesia, for which it sought remission of import duties pursuant to Articles 220(2)(b), 236 and 239(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. (1)

The applicant submits that the Commission infringed, at the very least, those provisions in so far as: first, it made no observations on any of the arguments put forward by the applicant in its request for remission of import duties; secondly, the reasons given by the Commission were inadequate, misleading and incomprehensible; thirdly, it misinterpreted the error made by the Indonesian authorities themselves; fourthly and last, the Commission deemed to be proved facts which are not actually proved, the burden of proving which fell, subsequently, to the bodies involved in the procedure and not the applicant.
EN Official Journal of the European Union C 69/47

Action brought on 15 January 2009 — Storck v OHIM (Mouse-shaped chocolate)

(Case T-13/09)

(2009/C 69/103)

Language of the case: German

Parties

Applicant: August Storck KG (Berlin, Germany) (represented by P. Goldenbaum, T. Melchert and I. Rohr, 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 of 12 November 2008 (R 185/2006-4); and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: a three-dimensional mark, which represents a mouse made out of chocolate, for goods in Class 30 (Application No 4 490 447).

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), in that the trade mark applied for has the necessary distinctive character.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 55/50

Action brought on 21 January 2009 — Biocaps v Commission

(Case T-24/09)

(2009/C 55/89)

Language of the case: French

Parties

Applicant: Biocaps (Orsay, France) (represented by: Y.-R. Guillou, H. Speyart and T. Verstraeten, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— annul the constested decision; and

— order the Commission to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

The applicant, a legal entity responsible for running the Laboratoire Champagnat Desmoulins Philippakis, seeks the annulment of Commission Decision C(2008) 6524 of 29 October 2008 in which the Commission, pursuant to Article 20(4) of Regulation No 1/2003 (1), ordered that laboratory, and all of the entities controlled directly or indirectly by it, to submit to an inspection concerning their possible participation in and/or implementation of agreements or concerted practices contrary to the provisions of Articles 81 EC and/or 82 EC.

That conduct took the form in particular of decisions aimed at preventing pharmacists and/or legal persons from gaining access to the market in bio-medical analysis services, to restrict their activities on that market, or to exclude them from that market.

In support of its action, the applicant puts forward a single plea in law alleging breach of the principle that the decisions of the Community institutions must be addressed to entities having legal personality, as the addressee of the contested decision no longer existed on the date when the decision was adopted.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 82/33

Action brought on 11 February 2009 — Nycomed Danmark v EMEA

(Case T-52/09)

(2009/C 82/58)

Language of the case: English

Parties

Applicant: Nycomed Danmark ApS (Roskilde, Denmark) (represented by: C. Schoonderbeek, H. Speyart van Woerden, lawyers)

Defendant: European Medicines Agency

Form of order sought

— annul the contested decision;

— order the EMEA to pay its own costs and those of Nycomed.

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment, pursuant to Article 230 EC and to Article 73a of Regulation (EC) No 726/2004 (1), as amended by Regulation (EC) No 1901/2006 (2) of the European Parliament and of the Council, of the decision ‘EMEA-000194-IPI01-07’ of 28 November 2008 of the European Medicines Agency (‘EMEA’) rejecting its application for a product specific waiver provided for in Article 11(1)(b) of the aforementioned regulation.

The applicant applied for such a waiver in respect of an ultrasound echocardiographic imaging agent to be marketed under the brand name Imagify, intended to diagnose coronary artery disease (‘CAD’) in adults. Through its contested decision, the EMEA denied that waiver to the applicants on the grounds that the disease or condition for which the medicinal product is intended is not CAD but myocardial perfusion defects, which also occur in children.

The applicant claims that the contested decision is unlawful in that it is based on an interpretation and application of the concept of ‘disease or condition for which the medicinal product is intended’ within the meaning of Article 11(1)(b) of Regulation (EC) No 1901/2006 which according to the applicant is incorrect in that it does not take into account the therapeutic indication applied for in the concomitant Community market authorisation application and that myocardial perfusion defects are not a disease or condition, but a sign of various diseases.

The applicant further submits that the contested decision is unlawful in that it is an attempt by the EMEA to misuse its powers pursuant to Articles 11(1)(b) and 25 of Regulation (EC) No 1901/2006 in order to attain the aim which is not contemplated by those provisions, namely, the obligation to propose a paediatric investigation plan for indications which are not covered by the concomitant Community market authorisation application.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1).

(2) Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004 (OJ 2006 L 378, p. 1).
The Commission’s decision to treat as impermissible the requests for payment under measure 1.7 on the ground that ‘adequate guarantees do not exist that the operations jointly financed by the European Regional Development Fund within the scope of measure 1.7 were properly carried out’ could never have been adopted pursuant to the second possibility in Article 32(3)(f) (infringement procedure pending). That decision could at most have been adopted pursuant to the first possibility indicated in that provision (suspension of payments under Article 39(2) of Regulation No 1260/99). That, however, would have necessitated the institution of inter partes proceedings, something which the Commission intended to avoid.

Finally, the applicant also claims that there has been a breach of essential formal requirements inasmuch as there was inadequate reasoning.
EN Official Journal of the European Union C 113/39

Action brought on 11 March 2009 — von Oppeln-Bronikowski and von Oppeln-Bronikowski v OHIM — Pomodoro Clothing (promodoro)

(Case T-103/09)

2009/C 113/79

Language in which the application was lodged: English

Parties

Applicants: Anna Elisabeth Richarda von Oppeln-Bronikowski and Baron Zebulon Baptiste von Oppeln-Bronikowski (Düsseldorf, Germany) (represented by: V. Knies, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pomodoro Clothing Company Ltd. (London, United Kingdom)

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 7 January 2009 in case R 325/2008-1

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘promodoro’, for goods and services in classes 25, 28 and 35 — application No 3 587 557

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: United Kingdom trade mark registration of the word mark ‘POMODORO’ for goods in class 25

Decision of the Opposition Division: Partially rejected the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 22 of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly took into account proof of use submitted out of time by the other party to the proceedings before the Board of Appeal; Infringement of Article 43(2) of Council Regulation 40/94 as the Board of Appeal failed to conclude that the evidence submitted by the other party to the proceedings before the Board of Appeal within the required time limit did not constitute sufficient proof of use of the trade mark cited in the opposition proceedings; Infringement of Article 8(2) of Council Regulation 40/94 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks in question.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 129/15

Action brought on 4 March 2009 — Germany v Commission

(Case T-97/09)

2009/C 129/26

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and C. von Donat, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Declare void Commission Decision C(2008) 8465 final of 19 December 2008 on the reduction of the assistance from the European Regional Development Fund (ERDF) for an operational programme in the Objective 1 region of the Land of Saxony in the Federal Republic of Germany (1994-1999) in accordance with Commission Decision C(94) 1939/4 of 5 August 1994, Commission Decision C(94) 2273/4 of 22 August 1994 and Commission Decision C(94) 1425 of 6 September 1994;

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

Pleas in law and main arguments

The applicant challenges Commission Decision C(2008) 8465 final of 19 December 2008, by which the financial assistance granted from the European Regional Development Fund for the Objective 1 region of Freistaat Sachsen in the Federal Republic of Germany (1994-1999) was reduced.

The applicant bases its claim on the following grounds:

Firstly, there is no legal basis for the consolidation and extrapolation of financial corrections in the funding period 1994 to 1999.

Secondly, the contested decision infringes Article 24(2) of Regulation (EEC) No 4253/88, (1) since the requirements are not met for a reduction to be made.

In particular, the Commission has misapplied the concept of ‘irregularity’ and has established important factual elements without any foundation for doing so. The assumption of systematic errors in administration and monitoring is based on incorrect findings of fact.

In the alternative, the applicant submits that the Commission has not used the discretion given to it pursuant to Article 24(2) of Regulation (EEC) No 4253/88. The lump sum corrections were disproportionate and the extrapolation was incorrectly calculated.

The applicant complains in addition that insufficient reasons were given for the contested decision. The derivation and grounds for the size of the consolidation applied could not be deduced from those reasons.

Finally, the applicant submits that the defendant infringed the principle of cooperation, since, despite the finding of operational capability of the administrative and monitoring systems in an administrative agreement, it complains in the contested decision of systematic deficiencies in the administrative and monitoring systems.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).