ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 246/38

Action brought on 19 July 2010 — Wam v Commission

(Case T-303/10)

()

2010/C 246/65

Language of the case: Italian

Parties

Applicant: Wam SpA (Modena, Italy) (represented by: G. Roberti, lawyer, I. Perego, lawyer)

Defendant: European Commission

Form of order sought

— annul, in whole or in part, the contested decision insofar as: — it declares that WAM has benefited from unlawful State aid, for the purpose of Article 107(1) TFEU, under the 1995 financing contract and the 2000 financing contract, both of which were entered into pursuant to Article 2 of Italian Law 394/1981; — it declares that the aid under the 1995 and 2000 financing contracts is incompatible with the common market; — it orders the incompatible aid to be recovered as assessed, providing also that interest calculated from the date on which the aid was granted to WAM is payable on the amounts to be recovered;

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

Pleas in law and main arguments

The contested decision is the same as that in Case T-257/10 Italy v Commission. (1)

WAM raises seven pleas in law, submitting that the European Commission:

— misapplied Article 107(1) TFEU to the facts and, in any event, incorrectly assessed the facts and failed to state sufficient reasons, in so far as it found that the interest-rate subsidies received by WAM for trade-penetration programmes in non-member States were liable to affect intra-Community trade and to distort competition, failing to have regard to the findings already set out in that regard by the Court of Justice in Case C-94/06 P, (2) and by the General Court in Case T-316/04, (3) in breach of Article 266 TFEU;

— incorrectly found, without reasoning, that Article 107(1) TFEU was applicable to the financing in question, without taking into consideration the principles and rules applied by itself to similar support measures for trade-penetration programmes in non-member States. The Commission did not find that that financing had been granted in the context of the scheme provided for under Law 394/1981, and also infringed Article 108(1) TFEU and Article 1(b) of Regulation 659/99;

— incorrectly found, while failing to provide adequate reasons, that the aid from which WAM benefited was in part incompatible with the common market, thereby infringing Article 107(3)(c) TFEU, the de minimis regulation and the relevant block exemption regulations;

— incorrectly calculated the grant equivalent of the aid in the form of subsidised interest received by WAM;

— failed to initiate the procedure under Article 108(2) TFEU, in order to re-adopt the decision already annulled by the Court of Justice and the General Court, thereby breaching WAM’s rights of defence.

— breached the principles of sound administration and diligence owing, in particular, to the excessive duration of the administrative procedure.

(1) Not yet published in the Official Journal of the European Union.

(2) Case C-494/06 P Commission v Italy and Wam [2009] ECR I-3639.

(3) Case T-316/04 R Italy and Wam v Commission [2009] ECR II-3197.
Official Journal of the European Union

Action brought on 10 August 2010 — Fraas v OHIM (Light grey, dark grey, beige, dark red and brown coloured checked pattern)

(Case T-326/10)

()

(2010/C 288/83)

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, 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 (Trade Marks and Designs) of 7 June 2010 in Case R 188/2010-4;

— Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a light grey, dark grey, beige, dark red and brown coloured checked pattern, for goods in Classes 18, 24 and 25.

Decision of the Examiner: Registration was refused.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

(1) 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 274/23

Action brought on 10 June 2010 — PPG and SNF v ECHA

(Case T-268/10)

()

2010/C 274/37

Language of the case: English

Parties

Applicants: Polyelectrolyte Producers Group GEIE (PPG) (Brussels, Belgium) and SNF SAS (Andrezieux Boutheon, France) (represented by: K. Van Maldegem, R. Cana, lawyers and P. Sellar, Solicitor)

Defendant: European Chemical Agency (ECHA)

Form of order sought

— declare the application admissible and well-founded;

— annul the contested act;

— order ECHA to pay the costs of these proceedings;

— take such other or further measure as justice may require.

Pleas in law and main arguments

The applicants seek the partial annulment of the decision of the European Chemicals Agency (“ECHA”) to identify acrylamide (CE no 201-173-7) (CAS Number 79-06-1) as a substance meeting the criteria set out in Article 57 Regulation (EC) No 1907/2006 (1) (“REACH”), in accordance with Article 59 REACH.

The applicants consider that the contested act is unlawful because it is based on an assessment of acrylamide that is scientifically and legally flawed since it relies on the evidence that is not sufficiently reliable and cogent. In the applicant’s opinion, ECHA committed a manifest error of appraisal in adopting the contested act, in breach of Articles 2(8) and 59 REACH and in breach of its duty to carefully and impartially examine the evidence.

Further, the applicants claim that the contested act infringes a series of general principles of EU law such as principle of proportionality and of non-discrimination since it discriminates against acrylamide with regard to other comparable substances without any objective justification.

(1) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1).
Action brought on 3 August 2010 — Iliad and Others v Commission

(Case T-325/10)

()

(2010/C 288/82)

Language of the case: French

Parties

Applicants: Iliad SA (Paris, France), Free infrastructure SAS (Paris) and Free SA (Paris) (represented by: T. Cabot, lawyer)

Defendant: European Commission

Form of order sought

— declare the present application admissible;

— annul European Commission Decision of 30 September 2009 approving the public financing of EUR 59 million for the planned very-high-speed broadband network in the department of Hauts-de-Seine, pursuant to Article 263 TFEU;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seek the annulment of Commission Decision C(2009) 7426 final of 30 September 2009, (1) declaring that the compensation for a public service charge of EUR 59 million, granted by the French authorities to a consortium of undertakings for the establishment and operation of a very-high-speed broadband electronic communications network (THD 92 project) in the department of Hauts-de-Seine does not constitute State aid.

In support of their action the applicants put forward three pleas in law:

— infringement of Article 107(1) TFEU, in so far as the Commission has not complied with any of the four criteria set out in the Altmark (2) case-law holding that the measure concerned did not constitute State aid;

— infringement of the obligation to state reasons for a decision, in so far as the contested decision does not contain sufficient evidence to conclude that all the conditions for the application of the Altmark case-law have been fulfilled;

— infringement of the obligation to initiate the formal investigation procedure provided for in Article 108(2) TFEU, in so far as all the evidence obtained in the preliminary examination procedure, documents describing the size and complexity of the examination to be carried out and the partially incomplete and inadequate content of the contested decision, show that the Commission took the contested decision despite the fact that it experienced serious difficulties in assessing whether the measure concerned was compatible with the common market.

(1) State aid N 331/2008 — France.

(2) Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg [2003] ECR I-7747.
Action brought on 10 August 2010 — Leifheit v OHIM — Vermop Salmon (Twist System)

(Case T-334/10)

()

(2010/C 288/87)

Language in which the application was lodged: German

Parties

Applicant: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt and V. Töbelmann, 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: Vermop Salmon GmbH (Gilching, Germany)

Form of order sought

— Annul the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2010 in joined Cases R 924/2009-1 and R 1013/2009-1;

— Order OHIM to bear its own costs and to pay the costs incurred by the applicant;

— In the event that Vermop Salmon intervenes in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘Twist System’ for goods in Classes 7, 8 and 21

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Vermop Salmon GmbH

Trade mark right of applicant for the declaration: the word mark ‘TWIX’ for goods in Class 21 and the word mark ‘TWIXTER’ for goods in Classes 9, 12, 21, 22 and 25

Decision of the Cancellation Division: The application for a declaration of invalidity was partially upheld

Decision of the Board of Appeal: Vermop Salmon’s appeal to have the applicant’s mark declared invalid in respect of additional goods was upheld and the applicant’s appeal was dismissed

Pleas in law: Infringement of Article 63(1) of Regulation (EC) No 207/2009 (1) as the First Board of Appeal of OHIM did not examine whether the evidence of use put forward by Vermop Salmon is sufficient to prove genuine use of the earlier Community trade marks; infringement of the first and second sentences of Article 57(2) in conjunction with Article 42(2) of Regulation No 207/2009 as the evidence of use which Vermop Salmon placed on the case-file does not prove genuine use of the earlier Community trade marks; and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 as the marks at issue are not similar.

(1) 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 301/60

Action brought on 14 September 2010 — Ori Martin v Commission

(Case T-419/10)

()

2010/C 301/96

Language of the case: Italian

Parties

Applicant: Ori Martin SA (Luxembourg, Luxembourg) (represented by: P. Ziotti, lawyer)

Defendant: European Commission

Form of order sought

— Annulment of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Prestressing steel), in so far as it attributes to the applicant liability for the conduct penalised;

— annulment or reduction of the fine imposed under Article 2 of that decision;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision contested in this case is the same as that in Case T-385/10 Arcelor/Mittal Wire France v Commission.

The applicant maintains that the European Commission decision C(2010) 4387 final of 30 June 2010 is unlawful in that it makes the applicant liable solely because it (almost) wholly owns the company which is alleged to have committed the collusive acts penalised under Article 101 TFEU.

In particular, the applicant pleads:

— infringement of Article 25(1)(b) of Regulation (EC) No 1/23, in that the Commission’s power to impose fines was time-barred in the circumstances of the case;

— infringement of Article 101 TFEU and breach of the principles of the personal nature of liability and penalties, of sound administration and non-discrimination, in that the Commission goes so far as to attribute to the applicant real and personal strict liability for the possibly unlawful acts committed by the company it controls, liability subject to an irrebuttable presumption which cannot in point of fact be challenged by evidence to the contrary. That liability on the basis of ownership is unexampled and contrary to the principles laid down by Community case-law in relation to the application of Article 101 TFEU when groups of companies are concerned;

— breach of the principle that capital companies enjoy limited liability by virtue of the company law common to the laws of the Member States and to the law of the European Union itself.

Ori Martin then seeks annulment or, at least, a considerable reduction of the fine imposed.
Action brought on 9 August 2010 — Cosepuri v EFSA

(Case T-339/10)

()

(2010/C 288/90)

Language of the case: Italian

Parties

Applicant: Cosepuri Soc. coop. p.a. (Bologna, Italy) (represented by: F. Fiorenza, lawyer)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

— Annul the tender procedure to the extent that it provides for the evaluation of the financial bids to be conducted in secret;

— Annul the decision awarding the contract to the company ANME and any act resulting therefrom;

— Order EFSA to pay damages to Cosepuri;

— Order EFSA to pay the costs.

Pleas in law and main arguments

By contract notice dated 1 March 2010, published in the Official Journal of the European Union of 13 March 2010, the European Food Safety Authority (EFSA) launched an open tender procedure for the award of a shuttle service contract in Italy and Europe for a period of 48 months, with an estimated value of EUR 4 000 000, defining as the award criterion the most economically advantageous tender in terms of the criteria stated in the specifications (Document B [in annex to the application]). The applicant company submitted its tender, but the contract in question was awarded to another company.

By the present application, the applicant contests that decision.

By its first plea in law, the applicant alleges infringement of Article 89 of Regulation (EC) No 1605/2002 (1) and infringement of the principles of sound administration, transparency, the requirement for publicity and the right of access, because of the failure to conduct in public the procedures for the opening of the technical bids and the awarding of points for the financial bid. In that connection, it is submitted that the price bid cannot be regarded as confidential information.

By its second plea in law, the applicant alleges infringement of Article 100 of Regulation (EC) No 1605/2002, infringement of Regulation (EC) No 1049/2001, (2) infringement of the duty to state reasons, the obligation of transparency and of the right of access to documents, since access to the documents was restricted after the contract was awarded, on the grounds that information such as the financial bid and public documents such as vehicle licences were confidential. In that connection, it is argued that the failure to disclose the price bid by the successful tenderer means that the acts were inadequately reasoned.

By its third plea in law, the applicant alleges infringement of Article 100 of Council Regulation (EC) No 1605/2002 of 25 June 2002, infringement of the specifications and a manifest error of reasoning on account of the errors made by the tenders committee in the evaluation of the financial bids.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(2) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 301/42

Action brought on 9 September 2010 — Villeroy & Boch v Commission

(Case T-382/10)

()

2010/C 301/68

Language of the case: French

Parties

Applicant: Villeroy & Boch (Paris, France) (represented by: J. Philippe and K. Blau-Hansen, lawyers, and A. Villette, Solicitor)

Defendant: European Commission

Form of order sought

— declare the contested decision null and void in so far as it concerns the applicant;

— in the alternative, in consequence, reduce the fine imposed on the applicant by the contested decision;

— order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks partial annulment of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (‘EEA’) (Case COMP/39092 — Bathroom fixtures and fittings) concerning a cartel on the Belgian, German, French, Italian, Netherlands and Austrian markets in bathroom fixtures and fittings for the coordination of sales prices and the exchange of sensitive business information.

The applicant puts forward seven pleas in law in support of its action:

— breach of Article 101 TFEU and Article 53 EEA as a result of classifying the infringement as a single, complex and continuous infringement, since the defendant thus failed to comply with its duty in law to assess the individual conduct of each of the undertakings to which the decision is addressed;

— breach of the duty to state reasons pursuant to the second paragraph of Article 296 TFEU, since the defendant failed to provide a sufficiently precise definition of the relevant markets in the contested decision;

— lack of sufficient evidence concerning the applicant’s participation in infringements in France;

— breach of the principle nulla poena sine lege laid down in the first paragraph of Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the principle of the proportionality of the penalty to the offence, laid down in Article 49(3) of the Charter in conjunction with Article 48(1) of the Charter and Article 23 of Regulation No 1/2003, (1) since the defendant imposed a fine jointly and severally on the applicant and its parent company;

— mis-calculation of the fine, since the defendant included some of the applicant’s turnover which had no connection with the objections raised when the fine was calculated;

— breach of Article 41 of the Charter, since the excessive length of the procedure was not taken into account when the fine was calculated;

— breach of the principle of the proportionality of penalties and errors of assessment when the fine was calculated, since the basic amount was set at 15 % and the absolute amount of the fine exceeded the limit of 10 % of the applicant’s turnover.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 317/45

Appeal brought on 24 September 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 9 July 2010 in Case F-91/09, Marcuccio v Commission

(Case T-450/10 P)

()

2010/C 317/80

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 9 July 2010. That order dismissed as partly manifestly inadmissible and partly unfounded an action which sought primarily compensation for damage which the appellant claims to have suffered as a result of a request sent to him to undergo certain medical examinations necessary for the purpose of any assessment as to his invalidity.

In support of his claims, the appellant submits that no reasons are stated whatsoever in the order under appeal in support of the findings relating to the alleged inadmissibility of the claim for damages.

The appellant also alleges unreasonable misinterpretation and misapplication Article 270 TFEU, Article 90 of the Staff Regulations of Officials of the European Union, the principles of legal certainty, the right to judicial protection, the hierarchy of sources of law, the separation of powers and of the principle that the court is subject to the law.
EN Official Journal of the European Union C 301/51

Action brought on 8 September 2010 — Zucchetti Rubinetteria v Commission

(Case T-396/10)

()

2010/C 301/81

Language of the case: Italian

Parties

Applicant: Zucchetti Rubinetteria SpA (Gozzano, Italy) (represented by: M. Condinanzi and P. Ziotti, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested decision.

— In the alternative, annul the fine imposed or reduce the amount of the fine.

— In the further alternative, reduce the amount of the fine by granting the request to take account of the attenuating circumstance referred to in Section 29 of the Guidelines on the method of calculating fines.

— In any event, order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that in Case T-368/10 Rubinetteria Cisal v Commission.

The pleas in law and main arguments are similar to those relied on in that case. In particular, the applicant submits that the products referred to in the decision belong to three separate markets, that Zucchetti is present only on the taps market and that the Commission’s decision does not carry out a prior identification of the relevant market. The decision is also defective in terms of its assessment of the geographic extent of the market and the effects of the cartel on the operating conditions on the market.

The applicant adds that the reconstruction of the agreements and/or concerted practices which led the Commission to find that the applicant had participated in a single, complex and continuous infringement of Article 101 TFEU solely on account of its collusive behaviour in Italy is vitiated and does not state the reasons on which the finding is based, since it totally fails to show that the applicant was aware of the unlawful conduct engaged in by the other undertakings allegedly participating in the cartel.