ddrg/super_eurlex huggingface dataset:
Official Journal of the European Union

Action brought on 15 April 2010 — Seven v OHIM — Seven For All Mankind (SEVEN FOR ALL MANKIND)

(Case T-176/10)

(2010/C 161/80)

Language in which the application was lodged: Italian

Parties

Applicant: Seven SpA (Leinì, Italy) (represented by: L. Trevisan, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seven For All Mankind LLC

Form of order sought

— Annul the decision of the Second Board of Appeal of 28 January 2010.

— Order OHIM to bear its own costs and to pay the costs incurred by Seven SpA in the present proceedings and in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Seven For All Mankind LLC

Community trade mark concerned: Word mark ‘SEVEN FOR ALL MANKIND’ (Application No 4 443 222), for goods in Classes 14 and 18.

Proprietor of the mark or sign cited in the opposition proceedings: Seven SpA.

Mark or sign cited in opposition: Two Community figurative marks (No 591 206 and No 3 489 234 for goods in Classes 16, 18 and 25) and an international trade mark (No 731 954, for goods in Classes 3, 9, 12, 14, 15, 16, 18, 20, 22, 25 and 28) which contain the word element ‘SEVEN’.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
Official Journal of the European Union

Action brought on 9 April 2010 — Air France v OHIM (Representation of a parallelogram)

(Case T-159/10)

(2010/C 161/71)

Language in which the application was lodged: French

Parties

Applicant: Air France (Roissy Charles de Gaulle, France) (represented by A. Grolée, lawyer)

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

Forms of order sought

— Annulment of the decision of 27 January 2010 of the Second Board of Appeal in Case 1018/2009-2 in so far as it dismissed the application for trade mark No 007576218 for the goods and services which are the subject of this action;

— Grant registration of the application for Community figurative mark No 007576218 for all goods and services covered by it;

— Order OHIM to pay the applicant’s costs incurred in the proceedings before OHIM and in the present action, pursuant to Article 87 of the Rules of Procedure.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark, representing the shape of a parallelogram, for goods and services in Classes 9, 14, 16, 18, 21, 24, 25, 28, 35 to 39 and 41 to 45 (Application No 7 576 218)

Decision of the Examiner: Rejection of the application for registration

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark, as the mark applied for has the requisite minimum level of distinctiveness.
EN Official Journal of the European Union C 179/53

Action brought on 6 May 2010 — Cree v OHIM (TRUEWHITE)

(Case T-208/10)

2010/C 179/91

Language in which the application was lodged: German

Parties

Applicant: Cree Inc (Durham, USA) (represented by V. Schiller, lawyer)

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

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 February 2010 in Case R 985/2009-2;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘TRUEWHITE’ for goods in Classes 9 and 11.

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 4, Article 7(1)(b) and Article 7(2) of Regulation (EC) No 207/2009, (1) because the trade mark concerned is distinctive.

Infringement of Article 7(1)(c) and Article 7(2) of Regulation (EC) No 207/2009, (2) because the trade mark concerned is not descriptive.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2) 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 179/51

Action brought on 30 April 2010 — Stichting Woonpunt and Others v Commission

(Case T-203/10)

2010/C 179/87

Language of the case: Dutch

Parties

Applicants: Stichting Woonpunt (Beek, Netherlands), Stichting Com.wonen (Rotterdam, Netherlands), Woningstichting Haag Wonen (The Hague, Netherlands), Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: E. Henny, T. Ottervanger and P. Glazener, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU;

— annul the Commission’s decision concerning new aid, in accordance with Article 263 TFEU;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations.

The applicants put forward eight pleas in law in support of the first head of claim. Those pleas are the same as the pleas which the applicants put forward in Case T-202/10 Stichting Woonlinie and Others v Commission.

The applicants put forward three further pleas in support of their second head of claim.

First, according to the applicants, the Commission infringed Articles 107 TFEU and 108 TFEU and Regulation No 659/1999 (1) by deeming project aid for declining urban areas to be part of an existing aid scheme, and by imposing mandatory requirements without following the procedure laid down under Regulation No 659/1999.

Second, the applicants submit that the Commission erroneously took the view that the fourth criterion referred to in Altmark (2) had not been satisfied inasmuch as housing corporations are not chosen by means of a public procurement procedure. According to the applicants, the Commission should have confined itself to checking that the measure did not lead to inefficiency.

Third, the applicants claim that the Commission should have considered whether there was any overcompensation for the service of general economic interest.

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

(2) Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I 7747.
EN Official Journal of the European Union C 195/22

Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament

(Case T-213/10 P)

2010/C 195/36

Language of the case: French

Parties

Appellant: P (Brussels, Belgium) (represented by E. Boigelot, lawyer)

Other party to the proceedings: European Parliament

Form of order sought by the appellant

— declare the appeal admissible and well founded and, therefore

— annul the judgment under appeal delivered on 24 February 2010 by the Third Chamber of the European Union Civil Service Tribunal in Case F-89/08, notified to the appellant on 1 March 2010, by which the Civil Service Tribunal dismissed as unfounded the appellant’s action seeking, inter alia, the annulment of the Parliament’s decision of 15 April 2008 to dismiss him and an order against the Parliament for damages and interest for the loss which he claims to have suffered;

— uphold the claims which the appellant submitted to the European Union Civil Service Tribunal;

— order the respondent to pay the costs at both instances.

Pleas in law and main arguments

By the present appeal, the appellant is seeking the annulment of the judgment of the Civil Service Tribunal of 24 February 2010, delivered in Case F-89/08 P v Parliament, which dismissed the action by which the appellant had sought, inter alia, the annulment of the decision of the European Parliament to terminate his temporary agent contract, and payment of damages and interest as compensation for the loss allegedly suffered.

In support of his appeal, the appellant submits three pleas alleging:

— an error of law and contradictory reasoning inasmuch as the Civil Service Tribunal considers that becoming aware of the grounds for a decision solely by consulting one’s personal file is adequate and does not lead to the annulment of the decision, despite the fact that the institution did not set out those grounds in the decision to dismiss or in the decision rejecting the complaint;

— a misunderstanding by the Civil Service Tribunal (i) of the system of separation of powers and institutional equilibrium between the administration and the Courts, (ii) of the right to effective judicial protection, inasmuch as the Civil Service Tribunal assumed the role of the European Parliament by stating, in its place, the alleged reasons for the decision which was contested before the Tribunal;
EN Official Journal of the European Union C 179/44

Action brought on 20 April 2010 — GEA Group v Commission

(Case T-189/10)

2010/C 179/77

Language of the case: German

Parties

Applicant: GEA Group AG (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

Defendant: European Commission

Form of order sought

— Annul Article 1 of the amending decision, to the extent that it imposes a fine on the applicant;

— In the alternative, reduce the fine imposed on the applicant in Article 1 of the amending decision;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2010) 727 final of 8 February 2010, by which the Commission amended its Decision C(2009) 8682 final of 11 November 2009 in Case COMP/38589 — Heat Stabilisers, in relation inter alia to the applicant (‘the amending decision’). The amendment concerns Article 2 Nos 31 and 32 of Commission Decision C(2009) 8682 final concerning the applicant’s joint and several liability.

In support of its claim, the applicant relies on five pleas in law.

First, the applicant claims that its rights of defence have been infringed because it was not heard before the amending decision was adopted or allowed to participate in the procedure in any other way. By its second plea in law, the applicant complains that the reasoning of the amending decision is defective, as it is based only on the failure to comply with the maximum limit under Article 23(2) of Regulation (EC) No 1/2003 (1) which must be respected ex officio, and does not contain any specific justification with regard to the applicant. By its third plea in law, the applicant complains that there is no legal basis for the amending decision, which has already become final for some addressees or has been invoked before the courts. By its fourth plea in law, the applicant argues that the alteration of the fine to its detriment is not permitted. Finally, the applicant argues that time-bar applies, because the amending decision was adopted after the expiry of the limitation period laid down in Article 25(6) of Regulation No 1/2003.

(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 221/49

Appeal brought on 9 June 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 25 March 2010 in Case F-102/08, Marcuccio v Commission

(Case T-256/10 P)

()

2010/C 221/80

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

— In any event, set aside in its entirety and without exception the order under appeal.

— Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible.

— Allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings.

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 25 March 2010. That order dismissed as partly manifestly inadmissible and partly manifestly unfounded an action seeking a declaration that there was no legal basis for or, in the alternative, the annulment of the Commission’s decision refusing to send to the appellant a copy of the photographs taken when his personal effects were removed from his lodgings in Luanda (Angola) and to destroy every document relating to that removal, together with an order that the Commission pay compensation to the appellant for the damage resulting from the fact that it proceeded with the removal against the appellant’s will.

In support of his claims, the appellant alleges a total failure to state reasons and infringement of rules governing evidence, the principle of the equality of the parties before the Community judicature, Article 94 of the Rules of Procedure of the CST, the Commission’s duty to have regard for the welfare of the appellant and the duty of sound administration.

The appellant also submits that the CST failed to give a ruling on three of his claims.
EN Official Journal of the European Union C 234/41

Action brought on 8 June 2010 — Ax v Council

(Case T-259/10)

()

2010/C 234/75

Language of the case: German

Parties

Applicant: Thomas Ax (Neckargemünd, Germany) (represented by: J. Baumann, Rechtsanwalt)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism;

— Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Regulation (EU) No 407/2010. (1)

The applicant argues, inter alia, that the aid released by the contested regulation would infringe the prohibition under Article 125 TFEU on undertaking liability for or assuming the commitments of other Member States.

Moreover, Regulation No 407/2010 is not covered by the enabling provision of Article 122 TFEU. The applicant argues that the Member States affected by speculative attacks have not been seriously threatened with severe difficulties within the meaning of that provision. Moreover, the difficulties arising as a result of the speculative attacks are not caused by exceptional occurrences beyond the control of the Member States concerned.

(1) Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ 2010 L 118, p. 1).
EN Official Journal of the European Union C 234/43

Action brought on 22 June 2010 — Suez Environnement and Lyonnaise des eaux France v Commission

(Case T-274/10)

()

2010/C 234/78

Language of the case: French

Parties

Applicants: Suez Environnement Company (Paris, France) and Lyonnaise des eaux France (Paris) (represented by: P. Zelenko and O. d'Ormesson, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested inspection decision and/or the inspection mandate of 6 April 2010;

— Annul any action undertaken originating from the inspections carried out on the basis of that unlawful decision and that unlawful mandate;

— Order, in particular, the return of all of the documents seized in the course of the inspections carried out, failing which, the Commission will have its future decision on the substance annulled by the Court, and

— Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicants seek annulment of Commission Decision C(2010) 1984/4 of 23 March 2010 requiring Suez Environnement and all of the undertakings which it controls, including Lyonnaise des eaux France, to submit to an inspection pursuant to Article 20(4) of Council Regulation No 1/2003, taken in the context of a proceeding pursuant to Article 101 TFEU concerning the markets for the provision of water and sanitation services. (1)

In support of their actions, the applicants raise three pleas in law alleging:

— an infringement of fundamental rights and freedoms and in particular of the right to respect for the home since the applicants were not notified of any national judicial authorisation, thus depriving them of any fundamental guarantee such as access to a judge while the investigations were being carried out and the possibility of pursuing the ordinary avenues of legal redress against such an authorisation;

— an infringement of the principle of proportionality since the validity of the inspection decision was unlimited in duration and had a very broad scope;

— that the inspection mandate accompanying the inspection decision does not provide sufficient guarantees of impartiality and objectivity, in so far as the Commission's agents which previously examined the confidential information which the applicant Lyonnaise des eaux France sent to the Commission in the context of a notification of a concentration are designated in that mandate.

(1) Case COMP/B-1/39.756.
EN Official Journal of the European Union C 260/23

Action brought on 19 July 2010 — Constellation Brands/OHMI (COOK'S)

(Case T-314/10)

()

2010/C 260/31

Language of the case: English

Parties

Applicant: Constellation Brands, Inc. (New York, USA) (represented by: B. Brandreth, Barrister)

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

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 29 April 2010 in case R 1048/2009-1;

— Remit the case to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and order that restitutio in integrum be granted in respect of community trade mark application No 942128;

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘COOK’S’

Decision of the Trade Marks and Register Department: Rejected the request for restitutio in integrum and confirmed the cancellation of the Community trade mark registration No 942128

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 81 of Council Regulation No 207/2009, as the Board of Appeal erred in the application of this article and in its assessment of the facts in holding that the applicant’s representatives had failed to exercise due care in the circumstances.
EN Official Journal of the European Union C 260/20

Action brought on 23 July 2010 — Yusef v Commission

(Case T-306/10)

()

2010/C 260/28

Language of the case: English

Parties

Applicant: Hani El Sayyed Elsebai Yusef (London, United Kingdom) (represented by: E. Grieves, Barrister and H. Miller, Solicitor)

Defendant: European Commission

Form of order sought

— declare that the Commission’s failure to act and remove the applicant from annex 1 of Council Regulation (EC) 881/2002 was unlawful;

— order immediately the Commission to remove the applicant from the said annex;

— order that the Commission pays, in addition to its own costs, those incurred by the applicant and any sums advanced by way of legal aid by the cashier of the Court of Justice.

Pleas in law and main arguments

The applicant applies under Article 265 TFEU for the revocation of Commission Regulation (EC) No 1629/2005 of 5 October 2005 amending for the 54th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al Qa’ida Network and the Taliban (1) as concerns him.

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

First, he submits that the Commission has failed to independently review the basis of the applicant’s inclusion in annex 1 at any point, or required any reasons for that inclusion.

Second, he claims that the Commission has failed to provide to the applicant any reasons justifying his inclusion in annex 1 in breach of his right to an effective judicial remedy, the right to defend himself and in breach of his rights to property under the European Convention on Human Rights.

Third, he contends that the Commission’s failure to remove the applicant from annex 1 is irrational as there are no reasons available which would satisfy the relevant criteria for inclusion in annex 1 and the United Kingdom Foreign and Commonwealth Office stances that the applicant no longer fulfils the relevant criteria.

(1) OJ 2005 L 260 p. 10
Appeal brought on 1 September 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 22 June 2010 in Case F-78/09, Marcuccio v Commission

(Case T-366/10 P)

()

(2010/C 288/109)

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

The appellant claims that the Court should:

— in any event, set aside in its entirety and without exception the order under appeal;

— declare that the action at first instance, in relation to which the order under appeal was made, was admissible in its entirety and without exception;

— uphold in its entirety and without any exception whatsoever the application lodged at first instance by the appellant;

— order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation both to the proceedings at first instance and to the present appeal proceedings;

— in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal has been brought against the order of the Civil Service Tribunal (CST) of 22 June 2010. That order dismissed as manifestly inadmissible an action seeking compensation for the damage sustained by the appellant because of the Commission’s refusal to reimburse him in respect of the costs incurred in the proceedings in Case T-18/04 Marcuccio v Commission.

In support of his claims, the appellant alleges the erroneous and unreasonable interpretation of the concept of ‘request’ for the purposes of Articles 90 and 91 of the Staff Regulations; total failure to state reasons; distortion and misrepresentation of the facts; and misinterpretation of the case-law on the recovery of costs which a party has been ordered to pay by the Court.

The appellant also alleges breach of the principle of audi alteram partem and of the rights of the defence and asserts that the CST failed to rule on a number of his claims.