ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 55/32

Action brought on 29 December 2010 — Castiglioni v Commission

(Case T-591/10)

2011/C 55/58

Language of the case: Italian

Parties

Applicant: Castiglioni Srl (Busto Arsizio, Italy) (represented by: G. Turri, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the contested measures, which are better described in the present application, by declaring them null and void and, therefore, order the European Commission to compensate for damage in a particular form, which may include a declaration that any contract which may have been entered into between the Commission and the successful tenderers was invalid, null and void or ineffective;

— in the alternative , annul the contested measures, which are better described in the present application, by declaring them null and void and, therefore, order the European Commission to compensate for the damage, including what is known as ‘curricular damage’, suffered by Castiglioni Srl in a commensurate amount to be quantified in the course of the proceedings, together with interest and monetary indexation to the date of actual payment;

— in any event , order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant relies on three grounds in support of its application:

— First ground, relating to infringement of Article 137(4) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), infringement of the contract notice and subsequent clarifications, and failure to state reasons.

— It is submitted in this connection that the applicant has demonstrated that it possesses all the standard minimum capacity levels required in the contract notice and the fact that possession of the minimum requirements is demonstrated in part directly and partly in reliance on the capacities of other entities is totally irrelevant, given that reliance on the capacities of other entities is expressly contemplated in the rules governing the present case. The failure to evaluate the tender submitted by the applicant is therefore unlawful.

— Second ground, relating to infringement of Article 148(3) of Regulation (EC, Euratom) No 2342/2002, and failure to state reasons.

— It is submitted in this connection that, even if it had been minded to conclude that the documents submitted by the applicant for the purpose of demonstrating that it possessed Standard ST3 were lacking in clarity, the contracting authority should have applied Article 148(3) of Regulation No 2342/2002.

— Third ground, relating to the illegality of the contract notice.

It is submitted in this connection that if, which is disputed, it is held that justification for the contracting authority’s position is to be found in the contact notice, the applicant challenges that notice, in reliance on the same complaints set out above in connection with the first ground.
EN Official Journal of the European Union C 72/19

Action brought on 21 December 2010 — Commission v Commune de Millau

(Case T-572/10)

2011/C 72/33

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Petrova, Agent, and E. Bouttier, avocat)

Defendant: Commune de Millau (Millau, France)

Form of order sought

The applicant claims that the General Court should:

— declare that the Commune de Millau (municipality of Millau) is jointly and severally liable for the undertakings made by, and the debts of, the Société d’économie mixte d’équipement de l’Aveyron (the Aveyron semi-public installations company) (SEMEA) with respect to the European Commission;

— order the Commune de Millau to pay jointly and severally with SEMEA to the applicant the principal sum of EUR 41 012, plus interest outstanding since 10 March 1992 or, in the alternative, from 27 April 1993;

— order the capitalisation of interest;

— order the Commune de Millau to pay jointly and severally with SEMEA the sum of EUR 5 000 in respect of SEMEA's wrongful obstruction of legal process;

— order the Commune de Millau to pay jointly and severally with SEMEA the costs of the present case;

— order the joining of the present case with Case T-168/10 Commission v SEMEA

Pleas in law and main arguments

The pleas in law and main arguments put forward by the applicant are identical to those advanced in Case T-168/10 Commission v SEMEA, (1) the Commission claiming furthermore that the Commune de Millau is jointly and severally liable for repayment of SEMEA's debt, in so far as the Commune de Millau took over SEMEA's assets and liabilities, including the contract concluded between SEMEA and the Commission which forms the basis of the dispute.

(1) OJ 2010 C 161, p. 48.
EN Official Journal of the European Union C 80/19

Action brought on 22 December 2010 — Aktieselskabet af 21. november 2001 v OHMI — Parfums Givenchy (only givenchy)

(Case T-586/10)

2011/C 80/36

Language in which the application was lodged: English

Parties

Applicant: Aktieselskabet af 21. november 2001 (Brande, Denmark) (represented by: C. Christiansen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Parfums Givenchy SA (Levallois Perret, France)

Form of order sought

— Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 1556/2009-2; and

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

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 colour ‘only givenchy’, for goods in class 3 — Community trade mark application No 3980241

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

Mark or sign cited in opposition: Danish trade mark registration No VR 2001 03359 of the word mark ‘ONLY’, inter alia for goods in classes 3 and 9; Danish trade mark registration No VR 2000 02183 of the word mark ‘ONLY’, for goods in class 25; Community trade mark registration No 638833 of the word mark ‘ONLY’, for goods in classes 14, 18 and 25

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 Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal erred in finding that there is no likelihood of confusion and that the relevant public would not establish a link or a connection between the earlier marks and the contested mark.
2.

Second ground of appeal, alleging in the alternative infringement of Articles 1, 5 and 7 of Annex III to the Staff Regulations of officials of the European Union and of decisions creating the European Personnel Selection Office (EPSO), as well as infringement of the obligation to state reasons inasmuch as the Civil Service Tribunal wrongly held that EPSO did not have the power to admit the persons concerned onto the list of candidates invited to submit a full application after the pre-selection phase.
EN Official Journal of the European Union C 80/25

Action brought on 24 January 2011 — Japan Airlines v Commission

(Case T-36/11)

2011/C 80/50

Language of the case: English

Parties

Applicant: Japan Airlines International Co., Ltd. (represented by: J.-F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor)

Defendant: European Commission

Form of order sought

— annul the Commission Decision of 9 November 2010;

— in the alternative, in the exercise of its unlimited jurisdiction, to reduce the fine imposed on the applicant and AL and Japan Airlines Corporation; and

— order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 Final of 9 November 2010 in case COMP/39.258 — Airfreight. This Decision finds that the applicant, along with Japan Airlines Corporation (JAC) (which has been absorbed by the applicant and ceased to exist), infringed Article 101 TFEU and Article 53 EEA by coordinating with other carriers its pricing behaviour for air freight services in respect (i) fuel surcharges, (ii) security surcharges, and (iii) the non-payment of commissions on surcharges.

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

1. First plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in defining the scope of the infringement in which the applicant was found to have participated to include routes that the applicant did not serve and had no legal right to serve.

2. Second plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes to the extent that such services are sold to customers located outside of the EEA.

3. Third plea in law, alleging that the decision violates the principles of non-discrimination and proportionality in applying different standards of proof to different carriers.

4. Fourth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of proportionality by including in the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement.

5. Fifth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries.

6. Sixth plea in law, alleging that the decision violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15 %.

7. Seventh plea in law, alleging that the decision violates the principle of non-discrimination in failing to grant the applicant a 10 % reduction in the fine on account of limited involvement in the infringement where such a reduction was granted to other addressees of the decision that are in a position objectively similar to that of the applicant.
EN Official Journal of the European Union C 89/27

Action brought on 2 February 2011 — Spain v Commission

(Case T-76/11)

2011/C 89/52

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant requests the Court to:

— annul Commission Regulation (EU) No 1004/2010 of 8 November 2010 of operating deductions from certain fishing quotas for 2010 on account of overfishing in the previous year (OJ 2010 L 291, p. 31); and

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant raises four pleas in law in support of its action:

1. First plea in law, based on an error of legal basis, given that the legal basis for the impugned act is Article 105 of Council Regulation (EC) No 1224/2009 of 20 November 2009 (1), which entered into force on 1 January 2010, whilst the infringements to which the penalties at issue apply were committed in 2009.

2. Second plea in law, based on breach of the principles of legality and legal certainty, since penalty rules are being applied which were not in force at the time the infringements occurred.

3. Third plea in law, based on breach of the principle of non-retroactivity of less favourable penalty provisions, insofar as less favourable rules are being applied to infringements that occurred in 2009.

4. Fourth plea in law, based on the fact that it may not be left to the Commission to determine the law applicable by reference to the time it chooses to commence an inquiry into a practice.

(1) Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1).
EN Official Journal of the European Union C 113/19

Action brought on 16 February 2011 — Shang v OHIM (Justing)

(Case T-103/11)

2011/C 113/38

Language in which the application was lodged: Italian

Parties

Applicant: Tiantian Shang (Rome, Italy) (represented by A. Salerni, lawyer)

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

Form of order sought

— Annul the contested provision.

— Alter the decision taken by OHIM and recognise the right of seniority enjoyed by national mark RM 2006C002075 in relation to Community trade mark 008391202, including the name and symbol, with all the effects thus entailed as provided for in Regulation No 40/94 on the Community trade mark, as replaced by Regulation No 207/2009.

— In the alternative, given that both the national and the Community mark share at the very least a common name element, consisting in the word ‘Justing’, recognise that the name element of the mark, or the name ‘Justing’, has a right of seniority, extending to it the retroactive effects of Community registration, with the possible exclusion solely of the graphic illustration surrounding the name.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark containing the word element ‘Justing’ (registration application No 8 391 203) for goods and services in Classes 18 and 25, in respect of which it is claimed that the national figurative mark (Italian registration No 1 217 203), which also contains the word element ‘Justing’, has a right of seniority

Decision of the Examiner: Rejected the application claiming seniority of the national figurative mark on the ground that the Italian mark and the Community mark are not the same.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Misapplication of Article 34 of Regulation No 207/2009 and infringement of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.
EN Official Journal of the European Union C 103/25

Appeal brought on 7 February 2011 by Erika Lenz against the judgment of the Civil Service Tribunal delivered on 14 December 2010 in Case F-80/09 Lenz v Commission

(Case T-78/11 P)

2011/C 103/44

Language of the case: German

Parties

Appellant: Erika Lenz (Osnabruck, Germany) (represented by V. Lenz and J. Römer. lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Set aside in full the judgment of the Civil Service Tribunal of 14 December 2010 in Case F-80/09;

— Uphold in full the forms of order sought at first instance;

— Order the European Commission to pay the costs of the appeal.

Pleas in law and main arguments

In support of its appeal the appellant relies on four pleas in law.

1. First plea in law: misrepresentation of the facts in paragraph 29 of the judgment appealed against and infringement of the Rules of Procedure

The appellant criticises the Civil Service Tribunal for having described the ‘Reasoning’ of the Commission in the contested decision as such and for having accepted it, although it was not available in German and was therefore expressly not acknowledged by the appellant. The Civil Service Tribunal thereby infringed both Article 29 of its Rules of Procedure and Council Regulation No 1 of 15 April 1958 determining the language to be used by the European Economic Community (OJ, English Special Edition, 1952-1958, p. 59). According to the appellant, paragraph 29 of the judgment appealed against contains not only a procedural error but also a misrepresentation of the facts.

2. Second plea in law: misrepresentation of the profession of natural health professional (‘Heilpraktiker’) in Germany

It is claimed that the Civil Service Tribunal’s description of the medical therapeutic profession of natural health professional in Germany was factually incorrect.

3. Third plea in law: misrepresentation of the facts concerning the summoning of a witness

The appellant claims that the Civil Service Tribunal misrepresented the facts with regard to the summoning of a witness. The Civil Service Tribunal, in paragraphs 20 and 45 of the judgment appealed against, incorrectly stated that what was at issue in the written submissions was the reimbursement of the costs of the witness concerned. According to the appellant what was at issue was in fact the proof of events during the period when the witness was employed by the Joint Sickness Insurance Scheme of the institutions of the European Union.

4. Fourth plea in law: facts missing from the judgment

The appellant also complains that certain statements by the parties in the oral hearing were not restated by the Civil Service Tribunal in the judgment appealed against and therefore also could not be assessed.
2.

Second plea in law, based on breach of the principle of proportionality The requirement of the closure or reduction of aid received pursuant to the Decision at issue for mines which, while not competitive in 2011, may become competitive by 2018, is not proportionate with respect to the objectives pursued by the Decision at issue. Thus, the provisions contested by this action go further than is necessary to guarantee the protection of the environment, insofar as they do not lead to the reduction of the percentage of energy that is produced from carbon. Nor are the contested provisions proportional in order to achieve the objectives of competitiveness of the carbon industry, since (i) they may give rise to the closure in 2018 of mines that are competitive at that time, but by reason of the Decision at issue had had to undertake to close because in 2011 they could not continue without the aid provided for by that decision and (ii) they do not promote the maintenance of competitive mines from an environmental and security point of view.
1.

First plea in law: an initial investigation opened under Article 5 of the Basic Regulation (2) cannot be directed against one company in particular but must concern one or more countries and all the producers in those countries. The applicant submits in this respect that: — the contested regulation is contrary to Article 5 of the Basic Regulation, in particular Article 5(9), read in conjunction with Article 17 of that regulation and interpreted consistently with the law of the WTO, in that that article does not allow a new anti-dumping procedure to be opened against a single company; — the contested regulation infringes Article 9(4) to (6) of the Basic Regulation, read consistently with the law of the WTO, in that that article does not allow anti-dumping duties to be imposed on a single company but requires duties to be imposed on all the companies in one or more countries; — the contested regulation infringes Article 9(3) of the Basic Regulation, under which the zero duty of a company covered by an anti-dumping procedure may be reconsidered only in accordance with a reinvestigation initiated under Article 11(3) of the Basic Regulation; in the alternative, the applicant submits that the Commission carried out a de facto reconsideration of its zero duty, in breach of Article 9(3) of the Basic Regulation, interpreted in accordance with a report of the WTO appellate body.
2.

Second plea in law alleging a manifest error of assessment, in so far as the applicant is accused of helping to fund the illegitimate administration of L. Gbagbo, whereas the applicant is only carrying out the activity of a private businessman and is therefore simply helping to fund the Republic of Côte d’Ivoire and not a specific regime by the payment of taxes and levies.
1.

First plea in law alleging infringement of the Charter of the United Nations, and of Articles 3(5) and (6) and 21(1) TEU and 7 TFEU, in so far as the defendant has exceeded its powers in imposing restrictive measures, the name of the applicant not being among the persons covered by United Nations Security Council Resolution 1572 (2004).
1.

The first plea in law alleges an infringement of fundamental rights and in particular the rights of the defence, in so far as Decision 2011/72/CFSP imposes sanctions and causes considerable damage to the applicant without his having first been heard and without his even having been able to make his point of view effectively known thereafter.
EN Official Journal of the European Union C 139/27

Action brought on 17 March 2011 — Cofra v OHIM — O2 (can do)

(Case T-163/11)

2011/C 139/52

Language in which the application was lodged: German

Parties

Applicant: Cofra Holding AG (Zug, Switzerland) (represented by: K.-U. Jonas and J. Bogatz, lawyers)

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

Other party to the proceedings before the Board of Appeal: O2 Holdings Ltd (Slough, United Kingdom)

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 10 January 2011 in Case R 246/2009-4;

— Order the defendant and, if appropriate, the other party to the proceedings to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: O2 Holdings Ltd.

Community trade mark concerned: Word mark ‘can do’ for goods and services in Classes 9, 16, 25, 35, 36, 38 and 43.

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

Mark or sign cited in opposition: National figurative mark, including the word element ‘CANDA’, for goods in Class 25.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 15 and Article 42(2) of Regulation (EC) No 207/2009 (1) and of Rule 22 of Regulation (EC) No 2868/95, (2) in that the Board of Appeal applied criteria which are too narrow in assessing the proof of use sufficient to maintain the right and failed to have sufficient regard to the particular distribution situation in the applicant’s undertaking. Further, infringement of Article 76(2) of Regulation (EC) No 207/2009, in that the Board of Appeal wrongly failed to have regard to various documents submitted as proof of use sufficient to maintain the right in the opposing mark. Finally, infringement of Article 75(2) of Regulation (EC) No 207/2009, in that the Board of Appeal did not inform the applicant that it regarded the proof of use submitted as insufficient and did not provide the applicant with an opportunity of submitting further proof in oral proceedings.

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 2009 L 303, p. 1).