ddrg/super_eurlex huggingface dataset:
‘Appeal brought on 29 October 2008 by Radu Duta against the judgment of the Civil Service Tribunal delivered on 4 September 2008 in Case F-103/07, Duta v Court of Justice

(Case T-475/08 P)

2009/C 69/93

Language of the case: French

Parties

Appellant: Radu Duta (Luxembourg, Luxembourg) (represented by F. Krieg, lawyer)

Other party to the proceedings: Court of Justice of the European Communities

Form of order sought by the appellant

— Admit the present appeal;

— declare it well founded;

— accordingly, by amendment of the judgment of the European Union Civil Service Tribunal of 4 September 2008, declare the appellant’s appeal admissible and well founded;

— accordingly, on the basis of the claims set out above, annul the contested decisions;

— so far as necessary, return the matter to the competent authority for a ruling in accordance with the judgment in the appeal;

— order the respondent to pay the sum of EUR 1 100 000 (one million one hundred thousand Euros) in respect of damages and interest;

— so far as necessary, order an expert to give a report on the extent of the financial loss suffered by the appellant;

— order the respondent to pay all the costs and expenses of the case;

— authorise the appellant expressly to refer to his pleadings at first instance which are annexed to the present appeal and form an integral part thereof;

— as to the remainder, authorise the appellant expressly to reserve all his rights of actions and remedies and in particular the right to bring an action before the European Court of Human Rights.

Pleas in law and main arguments

By the present appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 4 September 2008, delivered in Case F-103/07 Duta v Court of Justice, dismissing as inadmissible the action by which the appellant sought, on the one hand, annulment of the memorandum informing him that he would not be offered a post as a Legal Secretary and, on the other, damages in compensation for the loss allegedly suffered.

In support of his appeal, the appellant submits, firstly, that his right to a fair hearing, laid down in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, was infringed because of the structural partiality of the Court of First Instance and because of personal acquaintance between the Members of the Court of First Instance and the authors of the decisions contested before the Civil Service Tribunal. Secondly, the applicant refers to his arguments and pleas advanced at first instance, including breach of the principles of transparency, good faith and equal treatment.

Furthermore, the appellant states his conviction that he will be able to obtain justice only before a court truly independent of his opponent in the proceedings, the Court of Justice of the European Communities, and that he reserves the right to bring his case before the European Court of Human Rights.’
EN Official Journal of the European Union C 92/44

Action brought on 22 February 2008 — Italy v Commission

(Case T-95/08)

(2008/C 92/87)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C(2007) 6514 of 20 December 2007, notified on 21 December 2007, in so far as it excludes from Community financing and charges to the budget of the Italian Republic the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

— Order the defendant to pay the costs.

Pleas in law and main arguments

The Italian Government brings the present action against Commission Decision C(2007) 6514 of 20 December 2007 in so far as it excludes from Community financing and charges to the budget of the applicant the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

In support of its claims, the applicant submits:

— As regards aid for products processed from fruit and vegetables, infringement of Article 30(1) of Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14).

— As regards the purchase of bovine animals aged over 30 months intended for destruction, infringement of Article 5(5) of Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market (OJ 2000 L 321, p. 47) and of Article 4 of Commission Decision 97/735/EC of 21 October 1997 concerning certain protection measures with regard to trade in certain types of mammalian animal waste (OJ 1997 L 294, p. 7).
EN Official Journal of the European Union C 79/32

Action brought on 28 January 2008 — Furukawa Electric North America v OHIM (SLIM LINE)

(Case T-36/08)

(2008/C 79/62)

Language in which the application was lodged: German

Parties

Applicant: Furukawa Electric North America, Inc. (Norcross, United States of America) (represented by O. Rauscher, lawyer)

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 Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2007 in case number R 1532/2007-2;

— order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SLIM LINE’ for goods in Class 9 (Application No 5 907 266)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Misapplication of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the name ‘SLIM LINE’ is neither a descriptive indication nor is it devoid of any 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 92/33

Action brought on 24 January 2008 — Codorniu Napa v OHIM — Bodegas Ontañón (ARTESA NAPA VALLEY)

(Case T-35/08)

(2008/C 92/67)

Language in which the application was lodged: Spanish

Parties

Applicant: Codorniu Napa, Inc. (California, United States of America) (represented by: X. Fàbrega Sabaté and M. Curell Aguilà, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Ontañón, S.A.

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 20 November 2007 in Case R 747/2006-4, and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant.

Community trade mark applied for: Figurative mark ‘ARTESA NAPA VALLEY’ for goods in Class 33 (application No 3.079.159)

Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Ontañón, S.A.

Mark or sign cited in the opposition proceedings: Community figurative trade mark No 2.050.623 ‘ARTESO’ for goods in Classes 33 and 35, Spanish word mark No 844.194 ‘LA ARTESA’ for goods in Class 33.

Decision of the Opposition Division: Upheld the opposition and rejected the application for registration.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) given that there is no likelihood of confusion between the signs in conflict.

(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 92/38

Appeal brought on 8 February 2008 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 27 November 2007 in Case F-122/06, Roodhuijzen v Commission

(Case T-58/08 P)

(2008/C 92/77)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by J. Currall and D. Martin, acting as Agents)

Other party to the proceedings: Anton Pieter Roodhuijzen (Luxembourg, Grand Duchy of Luxembourg)

Form of order sought by the appellant

— Annul the judgment of the Civil Service Tribunal of 27 November 2007 in Case F-122/06 Roodhuijzen v Commission;

— dismiss the action brought by Mr Roodhuijzen;

— order that each party shall bear its own costs of the present appeal and of the action before the Court of First Instance.

Pleas in law and main arguments

By the present appeal, the Commission seeks annulment of the judgment of the Civil Service Tribunal of 27 November 2007 in Case F-122/06 Roodhuijzen v Commission, which annuls the decision of the Commission refusing to recognise the non-marital partnership of the applicant as regards the Joint Sickness Insurance Scheme of the European Communities.

In support of its appeal, the Commission raises three pleas in law seeking annulment.

By its first plea, the Commission submits that the CST ruled ultra vires in breach of Article 1(2) of Annex VII to the Staff Regulations and in breach of the principle of non-discrimination, in that it rejected the appellant's argument relating thereto and substituted its own without, however, permitting the Commission to respond thereto, accordingly failing to respect the rights of the defence.

The second plea alleges an error of law in the interpretation of the notion of ‘partnership’ as contained in Article 1(2) of Annex VII to the Staff Regulations, entitling the partner of an official to be covered by the Joint Sickness Insurance Scheme.

The third plea, raised in the alternative, alleges incorrect interpretation of the principle of non-discrimination.
EN Official Journal of the European Union C 107/28

Appeal brought on 18 January 2008 by C. Michail against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-67/05 Michail v Commission

(Case T-49/08 P)

(2008/C 107/47)

Language of the case: Greek

Parties

Appellant: Christos Michail (represented by C. Meïdanis, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— set aside the judgment of the Civil Service Tribunal in Case F-67/05 in so far as it does not rule upon financial compensation for the non-material harm which he suffered as a result of acts and omissions of the administrative authority;

— determine the financial compensation for the non-material harm to the appellant, which amounts to EUR 120 000;

— make an order as to costs as laid down by law.

Pleas in law and main arguments

The appellant submits that, in the contested judgment, the Civil Service Tribunal erred in ruling upon his application for annulment of his career development report for 2003 and of the decision of the appointing authority rejecting the complaints submitted by him under Article 90(2) of the Staff Regulations.

More specifically, the appellant contends that the Civil Service Tribunal wrongly refused to grant financial compensation for the non-material harm which he suffered as a result of his being assigned to the Directorate-General for Agriculture (DG AGRI) after the Directorate-General for Financial Control, within which he fell, was abolished. In the appellant's submission, the Civil Service Tribunal applied Community law incorrectly as a result of misappraisal of the evidence and contradictory reasoning.

The appellant also submits that the Civil Service Tribunal erred in refusing to rule upon a particular claim or otherwise that its judgment displays inadequate reasoning and therefore infringes fundamental procedural rights enjoyed by the appellant and breaches Community law.
EN Official Journal of the European Union C 107/36

Action brought on 19 February 2008 — Exalation v OHIM (Vektor-Lycopin)

(Case T-85/08)

(2008/C 107/61)

Language in which the application was lodged: German

Parties

Applicant: Exalation Ltd (Ilford, United Kingdom) (represented by K. Zingsheim, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of OHIM of 17 December 2007 in Case R 1037/2007-4 and OHIM's decision of 4 May 2007 and order OHIM to register the mark ‘Vektor-Lycopin’ applied for by the applicant as a Community trade mark in the Community Trade Mark Register;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Vektor-Lycopin’ for goods in Classes 5, 29 and 30 (Application No 4 838 983)

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has sufficient distinctive character and is not descriptive.

(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 116/29

Action brought on 31 March 2008 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE)

(Case T-130/08)

(2008/C 116/53)

Language in which the application was lodged: Spanish

Parties

Applicant: Gres La Sagra, SL (Alameda de la Sagra, Spain) (represented by: T. Villate Consonni, lawyer, and J. Calderón Chavero, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ceramicalcora, SA (Alcora, 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) (OHIM) of 30 January 2008 in Case R-1609/2006-4;

— As a consequence of that annulment, grant trade mark application 3109006, not only for the services in Class 39 (already granted upon the dismissal of the opposition B690695 as regards those services, which has now become res judicata), but also for the remaining goods and services covered by the application in Classes 19, 21 and 40, and

— Order OHIM, and the other parties before the Court, to pay the costs of the present proceedings should they be contested, and reject the claims of OHIM and the other parties before the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: Gres La Sagra, SL.

Community trade mark concerned: Figurative mark ‘VENATTO (marble stone)’ (Application No 3 109 066) for goods and services in Classes 19, 21, 39 and 40.

Proprietor of the mark or sign cited in the opposition proceedings: CERAMICALCORA, SA.

Mark or sign cited in opposition: Spanish trade mark for the sign ‘VENETO (céramicas)’ (No 2 115 543; 2 056 688; 2 056 689 and 2 056 699) for goods and services in Classes 27, 19, 21 and 39 respectively.

Decision of the Opposition Division: Opposition upheld in part. The Opposition Division held that there was a likelihood of confusion in the relevant territory for the goods and services at issue in Classes 19, 21 and 40, but that there was no such likelihood of confusion in relation to those services at issue in Class 39.

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

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 107/31

Action brought on 12 February 2008 — Axis AB v OHIM — Etra Investigación y Desarollo (ETRAX)

(Case T-70/08)

(2008/C 107/52)

Language in which the application was lodged: English

Parties

Applicant: Axis AB (Lund, Sweden) (represented by: J. Norderyd, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etra Investigación y Desarollo SA (Valencia, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of 27 November 2007 in Case R 334/2007-2;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark ‘ETRAX’ for goods and services in classes 9 and 42 — Application No 3 890 291

Proprietor of the mark or sign cited in the opposition proceedings: Etra Investigacion y Desarollo SA

Mark or sign cited: The national figurative marks containing the word element ‘ETRA’ and the letters ‘I’ and ‘D’ joined by the sign ‘+’ for goods and services in classes 9 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

Pleas in law: Infringement of Rule 49 of Commission Regulation (EC) No 2868/95 (1) (‘CTMIR’) and Article 8(1)(b) of Council Regulation (EC) No 40/94 (‘CTMR’).

The applicant claims that the Board of Appeal erred in finding that the appeal was filed in accordance with Rule 49(1) CTMIR which states that the Board of Appeal must reject an appeal as inadmissible if it doesn't comply with Articles 57, 58 and 59 CTMR and Rule 48(1)(c) CTMIR. Further, the applicant contends that since the language deficiency was not remedied by the opponent before the expiry of the time-limit set to lodge an appeal, namely, 12 February 2007, the Board of Appeal allegedly infringed Rule 49(1) and (2) CTMIR.

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

annul the procurement notice under reference EuropeAid/126316/C/SER/CY for the conclusion of a contract entitled ‘Establishment of a Programme Management Unit to support the implementation of investments projects in the field of water/wastewater and solid waste’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 4 January 2008, and annul points 5 and 28.2 of the notice;
—

failure to state reasons for the application for compensation for non-material damage. Regarding the many arguments comprehensively set out by the applicant to show the link between the non-material damage and the Commission's conduct, there is nothing in the contested order which makes it possible to understand the reasons on the basis of which those arguments were rejected.
EN Official Journal of the European Union C 142/30

Action brought on 25 March 2008 — CBI and Abisp v Commission

(Case T-128/08)

(2008/C 142/55)

Language of the case: French

Parties

Applicants: Coordination Bruxelloise d'Institutions sociales et de santé (CBI) (Brussels, Belgium) and Association Bruxelloise des Institutions de Soins Privées (Abisp) (Brussels, Belgium) (represented by: D. Waelbroeck, lawyer, and D. Slater, solicitor)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of the Commission's decision of 10 January 2008 rejecting their complaint made on 7 September and 17 October 2005 against the State aid granted by the Kingdom of Belgium to public hospitals of the IRIS network in the Brussels-Capital Region and refusing to initiate the formal investigation procedure in respect of the aid in question pursuant to Article 88(2) EC.

The applicants submit, first of all, that the contested decision is vitiated by procedural defects inasmuch as it should have been adopted by the Commission as a body, addressed to the Member State concerned, and published in the Official Journal of the European Union.

As to the merits, the applicants submit that the Commission made manifest errors of assessment and failed to fulfil its obligations to state reasons in taking the view that the measures in question were compatible with Article 86(2) EC and that it was not necessary to initiate the formal investigation procedure pursuant to Article 88(2) EC.

The applicants claim that the conditions for the application of Article 86(2) EC are not satisfied in this case, since:

— the public-service mission of the hospitals receiving the aid is not clearly defined;

— the compensation criteria have not been established in advance;

— the compensation exceeds the costs incurred; and

— no comparison has been made between the hospitals receiving the aid and comparable private hospitals.

The applicants further submit that the directive on the transparency of financial relations between Member States and public undertakings (1) has not been complied with in the present case.

(1) Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17).
EN Official Journal of the European Union C 183/25

Action brought on 15 May 2008 — Commission v Cooperação e Desenvolvimento Regional, SA

(Case T-174/08)

(2008/C 183/48)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: M. Afonso, acting as Agent)

Defendant: Cooperação e Desenvolvimento Regional, SA

Form of order sought

— Order the defendant to reimburse the Commission a principal amount of EUR 63 349,27, plus a sum of EUR 28 940,70 in late payment interest until 5 May 2008;

— order the defendant to pay late payment interest from 6 May 2008 at a daily rate of EUR 10,91 until full repayment of the debt has been made;

— order the defendant to pay the costs.

Pleas in law and main arguments

The present action was brought under Article 238 EC.

Within the framework of the project ‘European Network of Centres for the Advancement of Telematics in Urban and Rural Areas’ (ENCATA), the European Community, represented by the Commission, entered into contract No SU 1001 (SU) ENCATA with 12 contractors, among which the defendant.

In accordance with the provisions of that contract the Commission undertook to grant financial assistance to the group of contractors, among which the defendant, for the development of that project.

The project was set to last for 18 months.

Work was started on the project on 1 January 1996.

The Commission undertook to finance up to 50 % of the total cost of the project.

On 25 September 1997 the parties agreed to a first revision of the contract.

The duration of the project increased from 18 months to 36 months, with a starting date of 1 January 1996.

On 29 June 1998 the parties agreed to a second revision of the contract, following which the duration of the project was reduced from 36 to 30 months, and the starting date of 1 January 1996 remained unchanged.

The final costs of the project approved by the Commission were lower than the advances made by the latter within the context of contract No SU 1001 (SU) ENCATA.

Consequently, the Commission sought reimbursement of the advances made in excess of the costs incurred.

The sum owed by the defendant amounts to EUR 63 349,27 plus late payment interest.

For years the Commission has incessantly been reminding the defendant of its debt and has sent it numerous requests for payment. The defendant, for its part, has acknowledged its debt on numerous occasions and has stated its intention to repay it as soon as possible, but up until now it has not made any payment whatsoever to the Commission of the debt and the late payment interest in respect of the advances made in excess of the framework of the ENCATA project.