ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 92/40

Action brought on 6 February 2008 — ThyssenKrupp Acciai Speciali Terni v Commission

(Case T-62/08)

(2008/C 92/79)

Language of the case: Italian

Parties

Applicant: ThyssenKrupp Acciai Speciali Terni SpA (Terni, Italy) (represented by: T. Salonico, G. Pellegrino, G. Pellegrino, G. Barone, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare that the contested decision is unlawful and annul that decision in its entirety inasmuch as it regards as State aid the contested measure, which in fact constitutes a lawful continuation of the measure by which the Italian State granted compensation to Terni SpA (and its assignees) for the expropriation of its electricity plants which occurred in 1962-63;

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

— in the alternative, annul the decision insofar as it: (a) states that Italy unlawfully paid State aid to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche in breach of Article 88(3) of the EC Treaty; (b) states that there are amounts to be recovered from ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche; and consequently (c) orders Italy to recover those amounts plus interest without delay;

— in the further alternative, annul the contested decision insofar as it orders Italy to recover the State aid plus interest without delay, since that recovery infringes the general principle of the protection of legitimate expectations.

Pleas in law and main arguments

The contested decision in the present case is the same as that in Case T-53/08 Italy v Commission.

The pleas and the main arguments relied on are similar to those put forward in that case. In addition to infringement of Articles 87 and 88 of the EC Treaty on account of erroneous interpretation of the extension of the compensatory tariff for the former Terni companies, in the alternative the applicant also pleads:

— infringement of Article 88 of the EC Treaty in relation to failure to consider that the contested measure had in fact not yet been implemented and therefore the obligation of prior notification had not been infringed and there were no amounts to recover;
EN Official Journal of the European Union C 107/39

Action brought on 27 February 2008 — CPEM v Commission

(Case T-106/08)

(2008/C 107/67)

Language of the case: French

Parties

Applicant: Centre de promotion de l'emploi par la micro-entreprise (CPEM) (Marseille, France) (represented by: C. Bonnefoi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annulment of the debit note;

— recognise a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000);

— repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided.

Pleas in law and main arguments

By this action, the applicant seeks annulment of the Commission decision contained in debit note No 3240912189 of 17 December 2007 relating to Commission Decision C(2007) 4645 of 4 October 2007, cancelling, following an OLAF report, the assistance granted by the European Social Fund to finance, by way of a global subsidy, a pilot project carried out by the applicant (1) the annulment of which is sought by the applicant in Case T-444/07 CPME v Commission (2).

In support of its application, the applicant submits, principally, that the Commission has erred in law and exceeded its powers in so far as the contested debit note was not addressed to the actual debtor. By relying on infringement of Article 135 of the Financial Regulation No 1605/2002 (3), it submits that the debit note should have been addressed to the body which played a financially responsible role in the project concerned, which actually received the grant from the European Social Fund.

Moreover, the applicant submits that the fact that the debit note was addressed to it damages its image and its credibility with respect to its financial partners given the general interest task it performs.

(1) Commission Decision C(1999) 2645 of 17 August 1999, amended by Decision No C(2001) 2144 of 18 September 2001.

(2) OJ 2008 C 37, p. 29.

(3) 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).
EN Official Journal of the European Union C 92/43

Action brought on 6 February 2008 — Now Pharma v Commission

(Case T-74/08)

(2008/C 92/85)

Language of the case: German

Parties

Applicant: Now Pharma AG (Luxembourg, Luxembourg) (represented by: C. Kaletta and I.J. Tegebauer, Rechtsanwälte)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

— annul Commission Decision C(2007) 6132 of 4 December 2007;

— hold that the Commission should take a new decision in relation to the applicant's application of 6 February 2007, taking into consideration the Court's view of the law;

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

Pleas in law and main arguments

The applicant challenges the Commission's Decision of 4 December 2007 refusing the applicant's request for designation of the medicinal product ‘Extrait liquide spécial de Chelidonii radix’ (‘Chelidonii radix special liquid extract’) as an orphan medicinal product within the meaning of Regulation (EC) No 141/2000 (1).

In support of its application, the applicant submits that the contested decision infringes Article 3 of Regulation No 141/2000. In this respect, the applicant submits, in particular, that the final negative opinion of the European Medicines Agency was based on a wrong standard, namely the requirements for marketing authorisation in respect of a medicinal product pursuant to Article 8(3)(c) of Regulation No 141/2000. However, according to the applicant, whether a medicinal product is to be designated as an orphan medicinal product depends on whether the medicinal product will be of significant benefit to those affected by the particular condition, within the meaning of Article 3(2) of Regulation (EC) No 847/2000 (2). According to the applicant, the requirements of Article 3(1)(b) of Regulation No 141/2000 are fulfilled, because the medicinal product constitutes an orphan medicinal product and will be of significant benefit.

In addition, the applicant takes issue with the lack of qualifications and the bias of the expert.

(1) Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products (OJ 2000 L 18, p. 1).

(2) Commission Regulation (EC) No 847/2000 of 27 April 2000 laying down the provisions for implementation of the criteria for designation of a medicinal product as an orphan medicinal product and definitions of the concepts similar medicinal product and clinical superiority (OJ 2000 L 103, p. 5).
EN Official Journal of the European Union C 116/22

Action brought on 15 February 2008 — E.I. du Pont de Nemours and Others v Commission

(Case T-76/08)

(2008/C 116/40)

Language of the case: English

Parties

Applicants: E.I. du Pont de Nemours and Company (Wilmington, United States), DuPont Performance Elastomers LLC (Wilmington, United States), DuPont Performance Elastomers SA (Geneva, Switzerland) (represented by: J. Boyce and A. Lyle-Smythe, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1(b) of the decision insofar as it finds that E.I. DuPont was a party to the infringement;

— annul Article 2(b) of the decision insofar as it finds E.I. DuPont liable to pay a fine;

— reduce the fines imposed on the applicants pursuant to Article 2(b) of the decision; and

— order the Commission to bear its own costs and those incurred by the applicants.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber), by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a single and continuing agreement and/or concerted practice in the chloroprene rubber sector.

In support of their application, the applicants submit that the Commission committed manifest errors of assessment of the facts, erred in law and failed to provide adequate reasoning for its decision:

— in holding the applicant E.I. DuPont liable for the involvement of the joint venture DuPont Dow Elastomers in the cartel for the period after the applicant E.I. DuPont had transferred its entire elastomers business, including chloroprene rubber, to DuPont Dow Elastomers;

— in imposing a fine on E.I. DuPont for the period prior to the transfer of its elastomer activities to DuPont Dow Elastomers, when the Commission was in fact time-barred from doing so;

— in not having demonstrated a legitimate interest in issuing a decision against E.I. DuPont in this case;

— in not having shown that Bayer and DuPont Dow Elastomers had reached an agreement or an understanding over the closures of plants;

— in using a multiplier for duration of 6.5 equating six years and six full months, when the duration of the involvement of DuPont Dow Elastomers was only of six years and one full month;

— in not granting the applicants the maximum available leniency reduction of 30 %; and
—

second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (2) (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession (3);
EN Official Journal of the European Union C 116/26

Action brought on 1 March 2008 — MasterCard and others v Commission

(Case T-111/08)

(2008/C 116/47)

Language of the case: English

Parties

Applicants: MasterCard Inc. (Purchase, United States), Mastercard International Inc. (Purchase, United States) and MasterCard Europe SPRL (Waterloo, Belgium) (represented by: B. Amory, V. Brophy and S. McInnes, lawyers, and T. Sharpe, QC)

Defendant: Commission of the European Communities

Form of order sought

— Declare the present application admissible;

— annul the decision in its entirety; or, in the alternative, annul Articles 3,4,5 and 7 of the decision;

— order the Commission to pay the costs of the present proceedings, including the costs of the applicants.

Pleas in law and main arguments

By means of this application, the applicants seek the annulment of Commission Decision C(2007) 6474 final of 19 December 2007 in Cases COMP/34.579 — MasterCard, COMP/36.518 — EuroCommerce, COMP/38.580 — Commercial Cards (MasterCard) and, in the alternative, of the specific provisions of the decision concerning the imposed remedy, on the grounds that the decision is vitiated by errors of law, insufficient or lack of reasoning and manifest errors of fact. In addition, the application is based on the violation of the applicants' rights of defence during the Commission's investigation. Specifically, the applicants invoke the following grounds, variously based on Articles 229 EC, 230 EC and 253 EC, as well as the principles of EC law.

First, according to the applicants, the Commission misdirected itself in law and in fact, a) by failing to properly identify a restriction of competition in the sense of Article 81(1) EC and Article 53(1) EEA, b) as to the proper standard to be applied in assessing an objective necessity under the above-mentioned provisions.

Second, the applicants submit that the Commission misdirected itself in law and in fact in holding that the 'MasterCard Payment Organisation' constitutes an association of undertakings within the meaning of Articles 81(1) EC and 53(1) EEA, and that the cross-border interchange fee and related rules constitute a decision thereof.

Third, the applicants claim that the Commission is guilty of several infringements of essential procedural requirements and that the remedy and enforcement measures it imposed are disproportionate.

In addition, the applicants claim that the Commission demands an unlawfully high standard of proof in order to fulfil the conditions of Article 81(3) EC.
EN Official Journal of the European Union C 158/19

Action brought on 17 April 2008 — Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK)

(Case T-146/08)

(2008/C 158/32)

Language in which the application was lodged: German

Parties

Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: S. Beckmann, Rechstanwältin)

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

Other party to the proceedings before the Board of Appeal of OHIM: Redrock Construction s.r.o. (Prague, Czech Republic)

Form of order sought

— Annul the defendant's decision of 18 February 2008 in Case R 506/2007-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Redrock Construction s.r.o

Community trade mark concerned: Figurative mark ‘REDROCK’ for goods and services in classes 1, 2, 17, 19, 36 and 37 (application No 3 866 365).

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

Mark or sign cited in opposition: German word mark ‘Rock’ for goods and services in classes 1, 6-8, 17, 19, 37 and 42 (No 302 29 274); the opposition concerns registration in all classes with the exception of class 36.

Decision of the Opposition Division: Opposition allowed and application refused in part.

Decision of the Board of Appeal: Contested decision annulled and opposition rejected.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), as there is a likelihood of confusion, or at least a likelihood of association, between the opposing marks.

(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 142/33

Action brought on 9 April 2008 — BCS v OHIM — Deere (Combination of colours green and yellow)

(Case T-137/08)

(2008/C 142/60)

Language in which the application was lodged: English

Parties

Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V. Jandoli, F. Santonocito, lawyers)

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

Other party to the proceedings before the Board of Appeal: Deere & Company (Moline, United States)

Form of order sought

— Annul the Decision of the Second Board of Appeal of 16 January 2008 in case R 0222/2007-2; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A figurative mark consisting of the colour combination of green and yellow for goods in classes 7 and 12 — Community trade mark No 63 289

Proprietor of the Community trade mark: Deere & Company

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(3), 52(1)(c) in connection with Article 8(4) and Article 73(1) of Council Regulation No 40/94, as:

— the Board of Appeal ought to have interpreted Article 7(3) very strictly and, accordingly, should have imposed a rigorous burden of proof on the other party to the proceedings;

— the Board of Appeal failed to recognize the prior de facto trade mark of the applicant; and
EN Official Journal of the European Union C 171/43

Action brought on 7 May 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

(Case T-171/08)

(2008/C 171/82)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung e.V. (Berlin, Germany) (represented by: U. Claus, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of 30 October 2007 in the form of the letter of 7 March 2008 confirming approval of a payment in the amount of EUR 9 215,20 in the context of the ‘Traumatised refugees in the EU’ project by reason of ‘Grant Agreement JAI/2004/ERF/073’ in so far as the applicant was denied payment of more than EUR 9 215,20;

— order the Commission to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an agreement on support for a project in connection with the European Refugee Fund. By letter of 30 October 2007, confirmed by letter of 7 March 2008, the defendant sent the applicant a revised calculation of the payment to the applicant that was still outstanding, in which part of the applicant's costs were deemed to be ineligible for support. The applicant brought the present action against the Commission's letter of 7 March 2008.

The applicant claims in support of its action that the contested decision infringes the duty to give reasons since the defendant changed the grounds for its decision on numerous occasions. In addition, there has been an infringement of the fundamental principle of the right to a fair hearing. Finally, the facts of the case were assessed in a manner incompatible with the regulations of the Grant Agreement and the principle of protection of legitimate expectations.
EN Official Journal of the European Union C 171/40

Action brought on 2 May 2008 — Procter & Gamble v OHIM — Bayer (LIVENSA)

(Case T-159/08)

(2008/C 171/77)

Language in which the application was lodged: English

Parties

Applicant: The Procter & Gamble Company (Cincinnati, United States) (represented by: K. Sandberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bayer AG (Leverkusen, Germany)

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 11 February 2008 in case R 960/2007-2;

— reject the opposition No B 873 978 dated 3 May 2007;

— order OHIM to bear the costs of the proceedings: and

— order the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings before OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LIVENSA’ for goods in class 5 — application No 004 062 725

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: The Community trade mark ‘LYVELSA’ for goods in class 5

Decision of the Opposition Division: Rejection of the trade mark application in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as there is no likelihood of confusion between the two trade marks subject to comparison.
EN Official Journal of the European Union C 197/33

Action brought on 11 June 2008 — Lemans v OHIM — Stephen Turner (ICON)

(Case T-218/08)

(2008/C 197/57)

Language in which the application was lodged: English

Parties

Applicant: Lemans Corporation (Janesville, United States) (represented by: M. Cover, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Stephen Turner (Luddington, United Kingdom)

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 28 March 2008 in case R 589/2007-2;

— declare that the opposition be dismissed and that Community trade mark concerned may proceed to registration; and

— order the other party to the proceedings before the Board of Appeal to pay the costs, including the appeals before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ICON’ for goods and services in classes 9, 18 and 25 — application No 2 197 366

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: The national word mark ‘IKON’ for goods in class 9 — UK trade mark registration No 2 243 676

Decision of the Opposition Division: Rejection of the application in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its finding that the other party to the proceedings before it had locus standi to file the opposition.
EN Official Journal of the European Union C 183/23

Action brought on 6 May 2008 — Ivanov v Commission

(Case T-166/08)

(2008/C 183/46)

Language of the case: French

Parties

Applicant: Vladimir Ivanov (Boulogne Billancourt, France) (represented by: F. Rollinger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare that the Commission is liable for infringement of the principles of transparency, proper administration, non-discrimination and equal treatment in connection with the recruitment procedure which took place following the vacancy notice for a post as a ‘Pre-enlargement Adviser and Political Rapporteur’ based in Sofia, in May 2003;

— Order the Commission to make good, on the basis of the second paragraph of Article 288 of the Treaty establishing the European Community, the damage which it caused to the applicant;

— Accordingly, order the Commission to pay to the applicant the amount of EUR 180 000 as damages for the loss sustained;

— Order the Commission to pay the amount of EUR 10 000 in respect of non-material damage sustained by the applicant;

— Order the Commission of the European Communities to pay the costs and expenses.

Pleas in law and main arguments

In 2003, the applicant applied for a local member of staff's post as a ‘Pre-enlargement Adviser’ in Sofia. His application was rejected at the preliminary selection stage on account of his dual Franco-Bulgarian nationality as only candidates who had the nationality of a Member State were eligible for the vacant post.

During the recruitment procedure and after the rejection of his application, the applicant unsuccessfully requested more information regarding the procedure and the reasons for the rejection of his application. He then brought the matter before the European Ombudsman, who concluded that there had been maladministration and infringement of the principle of non-discrimination or of equal treatment on the part of the Commission.

By the present action, the applicant requests that the Court of First Instance declare that the Commission is non-contractually liable for infringement of the principles of transparency, proper administration, non-discrimination and equal treatment in connection with the recruitment procedure in question.