ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 211/29

Action brought on 19 May 2011 — Spain v Commission

(Case T-260/11)

2011/C 211/63

Language of the case: Spanish

Parties

Applicant: Spain (represented by: N. Díaz Abad, Agent)

Defendant: European Commission

Form of order sought

— annul Commission Regulation (EU) No 165/2011 of 22 February 2011 providing for deductions from certain mackerel quotas allocated to Spain in 2011 and subsequent years on account of overfishing in 2010, and

— order the Commission to pay the costs.

Pleas in law and main arguments

The Annex to the contested regulation contains the penalty imposed on Spain for overfishing of mackerel in 2010 in zones VIIIc, IX and X in EU waters of CECAF 34.1.1, the quota being reduced by 39 242 tonnes, with reductions of 4 500 tonnes in 2011, 5 500 in 2012, 9 748 in 2013, 9 747 in 2014 and 9 747 in 2015 and ‘where appropriate … in subsequent years’.

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

1. Infringement of Article 105(6) of 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 (‘Regulation No 1224/2009’), in so far as the contested regulation was adopted before the Commission adopted the implementing regulation provided for in Article 105(6).

2. Infringement of an essential procedural requirement in that there was no Management Committee report, given that until now measures to punish Member States for exceeding their quotas were adopted by means of a Commission Regulation following a prior report by the Management Committee.

3. Infringement of the rights of the defence, since the contested regulation was adopted without the Kingdom of Spain having previously been heard.

4. Infringement of the principle of legal certainty, in so far as, in imposing the contested measure, the Commission left open the possibility of extending that penalty thereafter, over an unspecified number of years.

5. Infringement of the principle of legitimate expectations, since the contested regulation entered into force when the fishing year for mackerel had already begun.
EN Official Journal of the European Union C 232/33

Action brought on 31 May 2011 — Carlotti v Parliament

(Case T-276/11)

2011/C 232/59

Language of the case: French

Parties

Applicant: Marie-Arlette Carlotti (Marseilles, France) (represented by: S. Orlandi, A. Coolen, J.-N Louis, É. Marchal and D. Abreu Caldas, lawyers)

Defendant: European Parliament

Form of order sought

— Declare the decision taken by the Bureau of the European Parliament on 1 April 2009 amending the additional voluntary pension scheme for Members of the European Parliament to be unlawful;

— Annul the contested decision;

— Order the European Parliament to pay the costs

Pleas in law and main arguments

The present action seeks annulment of the decision of 28 March 2011 refusing the applicant entitlement to her additional pension at the age of 60 (with effect from February 2012), taken on the basis of the decision of the European Parliament of 1 April 2009 amending the additional voluntary pension scheme for Members of the European Parliament.

In support of her action, the applicant relies on five pleas in law alleging:

— infringement of acquired rights conferred by legal acts and of the principle of legal certainty;

— infringement of the principles of equal treatment and of proportionality, in so far as the decision of 1 April 2009 and the contested decision raise the age at which the pension may be drawn by three years and do so without making any transitional provision;

— infringement of Article 29 of the Rules Governing the Payment of Expenses and Allowances of Members of the European Parliament, which provides that the quaestors and the Secretary-General are to be responsible for the interpretation and strict enforcement of those rules;

— manifest error of assessment vitiating the decision of the Bureau of the European Parliament of 1 April 2009 amending the rules serving as a basis to the contested decision in that it is based on an unfounded assessment of the financial situation of the pension fund;
3.

Third plea in law, alleging that the Commission committed several manifest errors in law in its application and interpretation of the condition of the existence of an economic advantage, pursuant to Article 107(1) TFEU, by establishing such an economic advantage by reference to the Commission’s own unfounded, selective and arbitrary arguments regarding the alleged value of the transferred assets.
3.

Third plea in law, alleging failure by the Commission to make a finding in relation to the further breach complained of TM.E submits also that, in the contested letter, the Commission failed to consider the other aspects brought to its attention. In particular, no appraisal whatsoever was made of the fact that TM.E’s case was adjudicated at first instance by the same judicial authority as had declared the application inadmissible, by a judgment subsequently reversed on appeal, and accordingly by a judicial authority which was not impartial and which should have declined to adjudicate, this being in clear and undeniable breach of the rights of the defence, of the Community principles and of Article 6(1) of the European Convention on Human Rights. Lastly, as regards the claim for compensation, TM.E submits that the inaction attributable to the Commission, as well as its failure to revoke the Community funding paid to Romania in connection with the project in question, caused considerable financial damage because of the failure to execute the procurement contract, or because of TM.E’s loss of any chance of being awarded that contract and, in any event, damage in the form of delay which compelled TM.E to engage in costly legal proceedings before the Romanian judicial authorities.
EN Official Journal of the European Union C 238/22

Action brought on 7 June 2011 — Deutsche Bahn a.o. v Commission

(Case T-289/11)

2011/C 238/40

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), DB Mobility Logistics AG (DB ML AG) (Berlin, Germany), DB Energie GmbH (Frankfurt-am- Main, Germany), DB Schenker Rail GmbH (Mainz, Germany) (represented by: W. Deselaers, J.S. Brückner and O. Mross, lawyers)

Defendant: European Commission

Forms of order sought

The applicants claim that the Court should:

— annul the Commission’s inspection decision of 14 March 2011 notified on 29 March 2011;

— annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

— in particular order the Commission to return all the copies of documents made during the inspections, on pain of the annulment of the future Commission decision by the General Court; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 1774 of 14 March 2011 (Cases COMP/39.678 and COMP/39.731), ordering, in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (1), inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter by reason of a possible preference of subsidiary undertakings by means of a rebate system in the supply of electromotive power.

In support of their action, the applicants make five pleas in law.

1. First plea: infringement of the fundamental right to inviolability of one’s premises by reason of lack of prior judicial authorisation.

2. Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from the factual and the legal point of view.

3. Third plea: infringement of defence rights by reason of a disproportionately wide and non-specific subject-matter of the inspection (‘fishing expedition’).

4. Fourth plea: infringement of the principle of proportionality. The inspection decision is disproportionate, since the rebate system for electromotive power has been practised by the applicants for years and has been monitored by the authorities and the German courts many times and found compatible with competition law, and since the answer to the question whether the rebate system is ‘objectively justified’, which the Commission regards as the decisive question, could have been answered by a less invasive measure, namely a request for information.

(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 269/55

Action brought on 18 July 2011 — Langguth Erben v OHIM (MEDINET)

(Case T-378/11)

2011/C 269/121

Language of the case: German

Parties

Applicant: Franz Wilhelm Langguth Erben GmbH & Co. KG (Traben-Trarbach, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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 Fourth Board of Appeal of 10 May 2011 in Case R 1598/2010-4 relating to Community trade mark application No 8 786 485;

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

Pleas in law and main arguments

Community trade mark concerned: the figurative mark ‘MEDINET’ for goods in Class 33 — application No 8 786 485

Decision of the Examiner: the registration of the mark with seniority of earlier national and international marks was refused

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Articles 34, 75 and 77 of Regulation No 207/2009 as the Board of Appeal (i) refused to register the seniority in an unlawful manner; (ii) did not examine the applicant’s submissions in respect of Board of Appeal decisions regarding claims of priority and seniority; and (iii) did not fix a date for oral proceedings.
EN Official Journal of the European Union C 269/52

Action brought on 5 July 2011 — Segovia Bonet v OHIM — IES (IES)

(Case T-355/11)

2011/C 269/115

Language in which the application was lodged: English

Parties

Applicant(s): Jorge Segovia Bonet (Madrid, Spain) (represented by: M.E. López Camba and J.L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: IES Insurance Engineering Services Srl (Milan, Italy)

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 29 March 2011 in case R 749/2010-2; and

— Order the defendant and the other party to the proceedings before the Board of Appeal 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 ‘IES’, for services in classes 35, 36, 41, 42 and 45 — Community trade mark application No 6787345

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

Mark or sign cited in opposition: UK trade mark registration No 2358802 of the figurative mark ‘IES’, for services in class 41

Decision of the Opposition Division: Upheld partially the opposition

Decision of the Board of Appeal: Dismissed the appeal and confirmed the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was no likelihood of confusion between the earlier trademark and the contested community trade mark application as (i) the compared signs are confusingly similar, in particular from a phonetic point of view; and (ii) the services designated by the earlier registration are complementary to those designated by the contested Community trade mark application.
EN Official Journal of the European Union C 282/40

Action brought on 29 July 2011 — Prosegur Compañía de Seguridad v Commission

(Case T-406/11)

2011/C 282/76

Language of the case: Spanish

Parties

Applicant: Prosegur Compañía de Seguridad, S.A. (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro and M. Muñoz de Juan, lawyers)

Defendant: European Commission

Form of order sought

— Admit and uphold the request for the taking of evidence;

— admit and uphold the grounds for annulment set out in this application;

— annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid;

— alternatively, annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid when applied to shareholding acquisitions that involve acquisition of control;

— alternatively, annul Article 4 of the Decision insofar as it applies the recovery order to transactions concluded prior to publication in the OJEU of the final Decision to which this action refers;

— alternatively, annul Article 1(1) and, alternatively, Article 4 of the Decision insofar as it refers to transactions carried out in Argentina, Peru and Colombia;

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The present action is directed against Commission Decision C(2010) 9566, of 12 January 2011, on the tax amortisation of financial goodwill for foreign shareholding acquisitions.

The pleas and main arguments are those already put forward in Case T-399/11, Banco de Santander and Santusa Holding v Commission.
EN Official Journal of the European Union C 282/34

Action brought on 18 July 2011 — Guccio Gucci v OHIM Chang Qing Qing (GUDDY)

(Case T-389/11)

2011/C 282/67

Language in which the application was lodged: English

Parties

Applicant: Guccio Gucci SpA (Firenze, Italy) (represented by: F. Jacobacci, lawyer)

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

Other party to the proceedings before the Board of Appeal: Chang Qing Qing (Firenze, Italy)

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 14 April 2011 in case R 143/2010-1 insofar as it rejected the opposition for the remainder of goods in classes 9 and 14; and

— Order the defendant to pay the costs.

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 word mark ‘GUDDY’, for various goods in classes 9, 14, 18 and 25 — Community trade mark application No 6799531

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

Mark or sign cited in opposition: Community trade mark registration No 121988 of the word mark ‘GUCCI’, for goods in classes 9, 14, 18 and 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division and partially dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed (i) to examine accurately the documents submitted to reach the appropriate conclusion regarding the higher distinctiveness of the trademark ‘GUCCI’ and as regards the phonetic comparison between the trademarks and subsequently erred in (ii) interpreting and applying Article 8(1)(b) of the Community Trade Mark Regulation.
—

in the further alternative, acknowledge the no-fault liability of the Commission which did not provide for a sufficient period of time between the publication of Commission Regulation (EU) No 627/2011 of 27 June 2011 and its entry into force, and award the following sums in damages to the applicant companies: — with regard to the damage caused: — for the company CHARRON: EUR 123 297,69; — for the company ALMET: EUR 384 210; — with regard to the indemnifiable loss of profit: — for the company CHARRON, with regard to the contract concluded with the company SURAJ, the sum of USD 78 051,76, or EUR 55 221,57; — for the company ALMET, with regard to the contract concluded with the company SURAJ, the sum of USD 69 059,18 or EUR 48 827,61 as at the current rate;
2.

Second plea in law, alleging infringement of the obligation to state reasons provided for by the second paragraph of Article 296 TFEU. The applicant criticises the Council for having adopted restrictive measures in respect of him without having informed him of the grounds, in order to enable him to put forward his pleas in defence. The applicant criticises the defendant for having merely used a general, stereotypical formulation, without specifying the factual and legal elements justifying its decision and the considerations which led it to adopt that measure.
4.

Fourth plea in law, alleging infringement of the principle of legal certainty consisting, firstly, of an infringement of the rights acquired by the producers concerned and, secondly, of an infringement of the legitimate expectation placed in the fact that they could themselves carry out the transformation into wine spirits of their production in excess of the quantity normally produced.
EN Official Journal of the European Union C 298/21

Action brought on 5 August 2011 — Laboratoire Bioderma v OHIM — Cabinet Continental (BIODERMA)

(Case T-427/11)

2011/C 298/40

Language in which the application was lodged: French

Parties

Applicant: Laboratoire Bioderma (Lyons, France) (represented by: A. Teston, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cabinet Continental (Paris, France)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Board of Appeal of OHIM of 28 February 2011;

— Reject the application for a declaration of invalidity of the registered trade mark made by Cabinet Continental;

— Order OHIM and/or the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the present action;

— Order the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the proceedings before the Cancellation Division and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘BIODERMA’ for goods and services in Classes 3, 5 and 44 — Community trade mark No 3 136 892.

Proprietor of the Community trade mark: Laboratoire Bioderma.

Applicant for the declaration of invalidity of the Community trade mark: Cabinet Continental.

Grounds for the application for a declaration of invalidity: The application for a declaration of invalidity was made on the basis of Article 52(1)(a) and Article 7(1)(b), (c) and (d) of Regulation No 207/2009.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration that Community trade mark No 3 136 892 is invalid.

Pleas in law: Infringement of Articles 7(1)(b) and (c) and 75 of Regulation No 207/2009 in so far as the contested decision is incorrect as regards inter alia the meaning of the mark concerned in Greek and the perception of that mark by the Greek public.
—

they should, as parent companies held responsible as such for the cartel, also benefit from the reduction in the fine imposed on their subsidiaries, despite the fact that their own action brought against that decision was dismissed by the judgment of the General Court in Case T-206/06 Total and Elf Aquitaine v Commission;
1.

First plea in law, alleging that it was clearly impossible for the Commission to adopt a confirmatory decision — with, moreover, retroactive effect — which validated ex post facto the approval of Wendel as purchaser of Editis. The applicant maintains that: — by acting in that way, without drawing any of the conclusions entailed by the Court’s finding of illegality related to the lack of independence of the trustee responsible for overseeing that transfer, the Commission infringed Article 266 TFEU; — by setting 30 July 2004 as the date on which the contested decision became effective, the Commission infringed the principle of non-retroactivity, disregarding the case-law of the Court of Justice, which allows retroactivity, by way of an exception, only if two conditions are met — that it is required by overriding reasons related to the public interest and that the legitimate expectations of the persons concerned have been duly respected.
—

that the contested act either de jure or de facto will impose a residence requirement on central counterparty clearing systems (‘CCPs’) that wish to undertake clearing or settlement operations in the Euro currency whose daily trades exceed a certain volume. The contested act infringes all or any of Articles 48, 56 and/or 63 TFEU, in that: (a) CCPs established in non-Euro area Member States, such as the United Kingdom, will be obliged to relocate their centres of administration and control to Member States which are members of the Eurosystem. They will also be obliged to re-incorporate as legal persons recognised in the domestic law of another Member State; (b) in the event that such CCPs do not relocate as required, they will be precluded from access to the financial markets in the Eurosystem Member States, either on the same terms as CCPs established in those territories, or at all; (c) such non-resident CCPs will not be entitled to facilities offered by the ECB or the National Central Banks (‘NCBs’) of the Eurosystem, either on the same terms, or at all; (d) as a result, the ability of such CCPs to offer clearing or settlement services in the Euro currency to customers in the Union will be restricted or even prohibited in its entirety.
1.

First plea in law, alleging insufficient statement of reasons, and infringement of the rights of the defence and of the right to an effective legal remedy, in so far as: — the contested measures, adding the name of the applicant to the list of persons concerned by the restrictive measures against Syria, do not show the reasons for the restrictive measure taken against the latter; — those decisions were not notified to the applicant; and — the evidence held against the applicant to justify the restrictive measures concerning him has still not been communicated, despite a request addressed to the Council of the European Union.
EN Official Journal of the European Union C 347/42

Action brought on 10 October 2011 — Belgium v Commission

(Case T-538/11)

2011/C 347/75

Language of the case: Dutch

Parties

Applicant: Kingdom of Belgium (represented by: C. Pochet and J. Halleux, Agents, and by L. Van den Hende, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the Commission Decision of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04));

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law.