ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 223/50

Action brought on 19 June 2008 — Commission v Commune de Valbonne

(Case T-238/08)

(2008/C 223/88)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: L. Escobar Guerrero, acting as Agent, and E. Bouttier, lawyer)

Defendant: Commune de Valbonne

Form of order sought

— Order the Commune de Valbonne, represented by its current mayor, to pay the applicant the sum of EUR 18 619,38 corresponding to the principal sum of EUR 14 261,29 and late-payment interest thereon of EUR 4 358,09 due from 31 May 2008;

— Order the Commune de Valbonne to pay the sum of EUR 5 000 in order to cover the costs the applicant was obliged to incur to recover the debt;

— Order the Commune de Valbonne to pay the costs.

Pleas in law and main arguments

For 1998 and 1999, the Commission concluded, with the Commune de Valbonne (municipality of Valbonne) in France, the municipality of Fermo in Italy and the European Economic Interest Group ARCHI-MED, a research and training contract relating to a mutual education project between the city of Valbonne and the province of Di Ascoli Piceno, called ‘VALASPI MM 1027’.

The municipalities and ARCHI-MED undertook, inter alia, to supply the Commission with a final report. Since they did not supply that report following a letter of formal notice from the Commission, the Commission took the view that the contracting parties had failed to fulfil their obligations under the contract and terminated it, requesting reimbursement of part of the advances paid by the Commission, together with interest.

Faced with ARCHI-MED's insolvency, the Commission seeks an order that the defendant pay the sums due, since the contracting parties were jointly and severally liable to perform the contract.
EN Official Journal of the European Union C 223/54

Action brought on 3 July 2008 — Indo Internacional v OHIM — Visual (VISUAL MAP)

(Case T-260/08)

(2008/C 223/96)

Language in which the application was lodged: English

Parties

Applicant: Indo Internacional, SA (Sant Cugat del Vallės, Spain) (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: Visual SA (Saint Apollinaire, France)

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 15 April 2008 in case R 700/2007-1; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VISUAL MAP’ for services in class 44 — application No 393 2936

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: French trade mark registration No 043 303 854 of the word mark ‘VISUAL’ for services in class 44

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 40/94 as there is no likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 247/23

Action brought on 15 August 2008 — Melli Bank v Council

(Case T-332/08)

(2008/C 247/45)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom) (represented by: R. Gordon QC, M. Hoskins, Barrister, and T. Din, Solicitor)

Defendant: Council of the European Union

Form of order sought

— Paragraph 4, section 8, of the annex to Council Decision 2008/475/EC concerning restrictive measures against Iran is declared void in so far as it relates to Melli Bank plc.

— If the Court finds that Article 7(2)(d) of the regulation is mandatory in effect, Article 7(2)(d) of Council Regulation 423/2007/EC concerning restrictive measures against Iran is declared to be inapplicable.

— The Council should pay the applicant's costs of these proceedings.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Decision 2008/475/EC of 23 June 2008 (1) implementing Article 7(2) of Council Regulation (EC) No 423/2007 concerning restrictive measures against Iran in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. The applicant contested the same decision in Case T-246/08, Melli Bank v Council (2).

In support of its application in the present case, the applicant submits that the Council has infringed its obligation to state reasons, as it did not give any individual and specific reasons for the listing of the applicant. The applicant alleges that it has been listed, not because it has itself been involved in providing support to Iran's nuclear activities, but solely because it is a subsidiary of a parent company which is believed to have been involved in such activities.

The applicant further submits that, if Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) is to be interpreted as imposing an obligation on the Council to list every subsidiary owned or controlled by a parent company which has itself been included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen, this provision should be declared inapplicable as it contravenes the principle of proportionality.

The applicant considers that a mandatory listing of the subsidiary is unnecessary and inappropriate to achieve the purposes of the regulation, as the listing of the parent company prevents a subsidiary based in the European Union from taking instructions from its parent company which would directly or indirectly circumvent the effect of the listing of the parent company.

Finally, the applicant claims that Article 7(2)(d) of the said Council regulation should be interpreted so as to give the Council a discretionary power to list a subsidiary of a listed parent company and not so as to impose an obligation on the Council in this sense.

(1) OJ 2008 L 163, p. 29.

(2) OJ 2008 C 197, p. 34.

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).
EN Official Journal of the European Union C 247/22

Action brought on 8 August 2008 — BSH Bosch und Siemens Hausgeräte v OHIM (executive edition)

(Case T-310/08)

(2008/C 247/44)

Language in which the application was lodged: German

Parties

Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by: S. Biagosch, Rechtsanwalt)

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

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 5 June 2008 in Case R-845/2007-1;

— order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘executive edition’ for goods in Classes 7, 9 and 11 (application No 4 908 182).

Decision of the Examiner: rejection of the application.

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

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has the requisite minimum level of distinctiveness.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
—

Allow the claims set out in the introduction to the application and, consequently, annul the Regulation which has imposed a ban, as from 16 June 2008, on fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea by purse seiners flying the Italian flag (Article 1 of the Regulation) and has prohibited Community operators, as from 16 June 2008, from accepting landings, placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45° W, and the Mediterranean Sea by such vessels (Article 3(1) of the Regulation).
EN Official Journal of the European Union C 272/37

Action brought on 12 August 2008 — G. & C. v Commission

(Case T-326/08)

(2008/C 272/74)

Language of the case: Italian

Parties

Applicant: G. & C. Srl (Licata, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 272/46

Action brought on 3 September 2008 — Spain v Commission

(Case T-360/08)

(2008/C 272/90)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

Defendant: Commission of the European Communities

Form of order sought

— Disapply the Guidelines for determining the financial corrections applicable to expenses co-financed by the Structural Funds and the Cohesion Fund in the event of failure to comply with the public procurement rules, final version of 29 November 2007, COCOF 07/0037/03-ES,

— annul the Decision of the Commission of the European Communities of 25 June 2008, C(2008) 3247, in so far as it reduces financial assistance from the Cohesion Fund to project group No 2001.ES.16.C.P.E.036 (cleaning of the Hydrographic Basin of the North — Galicia-2001), and

— order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

This dispute concerns a group of projects for the improvement of existing and newly-constructed pumping stations, the expansion, conditioning and improvement of the drainage network and cleaning, situated in various parts of Galicia. The Community co-financing initially granted by the Commission amounted to 80 % of the public cost eligible for subsidy.

In July 2007, the Commission sent a letter to the applicant suggesting corrections to remedy the irregularities that came to light during an earlier audit. The conclusions of the letter specified the two irregularities which together provided the reason for the contested decision and the corresponding proposals for financial corrections: the incorrect use of the emergency procedure in relation to a procurement contract and the wrong use of experience as an award criterion for various contracts. The proposals for financial correction amount to EUR 697 901 and EUR 354 591 respectively.

The pleas in law and main arguments are those put forward in Case T-359/08 Spain v Commission.
EN Official Journal of the European Union C 301/56

Action brought on 22 September 2008 — Italy v Commission

(Case T-426/08)

(2008/C 301/94)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

— annul decision 8/VII/2008 No C(2008) 3411 final, notified on 11 July 2008, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) in so far as it makes certain financial corrections to be borne by Italy.

Pleas in law and main arguments

By the contested decision the Commission excluded from Community financing chargeable to the EAGGF four categories of expenditure incurred by the Italian State from 2001 to 2006. They were corrections relating to certain export refunds of fruit and vegetables and sugar, aid for citrus processing in respect of the financial years 2004 and 2005, the amount of the additional levy to be applied to milk products which in production and marketing exceed the milk quotas allocated to them in relation to the 2002-2003 marketing campaign and area/arable crops aid in respect of 2004, 2005 and 2006.

In support of its claims the applicant submits that the controls carried out were correct and fair.

In this case the applicant relies on infringement of the duty to state reasons, the principle of proportionality, Articles 11, 12 and 14 of Commission Regulation (EC) No 1392/2001 of 9 July 2001 laying down detailed rules for applying Council Regulation (EEC) No 3950/92 establishing an additional levy on milk and milk products (1), Article 7(4) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy, Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2), Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (3), Articles 22 and 30 of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (4), and Articles 50, 51 and 30 of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (5).

(1) OJ L 187 of 10.7.2001, p. 19.

(2) OJ L 160 of 26.6.1999, p. 103.

(3) OJ L 209 of 11.8.2005, p. 1.

(4) OJ L 327 of 12.12.2001, p. 11.

(5) OJ L 141 of 30.4.2004, p. 18.
EN Official Journal of the European Union C 285/49

Action brought on 5 September 2008 — Abouchar v Commission

(Case T-367/08)

(2008/C 285/89)

Language of the case: French

Parties

Applicant: Michel Abouchar (Dakar, Senegal) (represented by: B. Dubreuil Basire and J-J. Lorang, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Declare that officials of the Commission/EDF committed intentional torts in the performance of their tasks;

— declare that the Commission/EDF infringed Article 155 EC and Article 311 of the Fourth Lomé Convention and the general principles of sound administration, duty of care and the protection of legitimate interests;

— declare that those torts directly gave rise to harm to the applicant and order the Commission/EDF to pay him jointly and severally, for all the damage he suffered, the sum of EUR 4 500 000 by way of damages and interest;

— order the Commission/EDF to pay the applicant the sum of EUR 100 000 as irrecoverable expenditure which the applicant had to incur;

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

Pleas in law and main arguments

By means of his action for non-contractual liability, the applicant is seeking to obtain a declaration that the Commission infringed the financial implementing rules of the Sixth and Seventh European Development Fund (‘the EDF’) and of the so-called ‘Lomé III’ and ‘Lomé IV’ (1) Conventions linking the Community with the African, Caribbean and Pacific States (‘ACP’), in the context of managing resources of the EDF concerning a project to finance Small and Medium Enterprises in the region of Saint-Louis of Senegal.

In this case, the applicant, the beneficiary of a loan for a vegetable farm project in the eligible region, takes the view that management errors and misappropriation of funds allegedly imputed to Commission officials had the effect of immediately paralysing his farming project set up under the European Development Fund.

The applicant essentially relies on two Commission failures, capable of giving rise to non-contractual liability on the part of the Commission. More precisely, the applicant alleges, first, errors committed by officials when carrying out their duties, and, secondly, a failure to monitor funding awarded by the Commission, breach of Articles 155 EC and Article 311 of the Fourth Lomé Convention, and of the general principles of sound administration, duty of care and protection of legitimate expectations.

(1) Since 23 June 2000, the Lomé Convention has been replaced by the Cotonou Agreement (OJ 2000 L 317, p. 3). The applicant still refers in his application, however, to the Lomé III and IV Conventions.
—

annul Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea;
EN Official Journal of the European Union C 313/53

Action brought on 13 October 2008 — Zeta Europe v OHIM (Superleggera)

(Case T-464/08)

(2008/C 313/95)

Language in which the application was lodged: Italian

Parties

Applicant: Zeta Europe BV (Het Ambacht, Netherlands) (represented by V. Bilardo, C. Bacchini and M. Mazzitelli, lawyers)

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

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of 17 July 2008 in Case R 666/2008-1 concerning the applicant;

— order OHIM to pay the costs

Pleas in law and main arguments

Community trade mark concerned: Figurative mark ‘Superleggera’ (Community trade mark application No 5.456.207) for goods in Classes 12, 18 and 25.

Decision of the Examiner: Refusal of the application for registration, having noted that the mark in question consists of the adjective ‘superleggera’ and that that will therefore be understood as a descriptive indication of the weight of goods.

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

Pleas in law: Infringement of Articles 7(1)(b), 73 and 74 of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 313/46

Action brought on 1 October 2008 — Bulur Giyim Sanayi ve Ticaret Sirketi v OHIM — Denim (VIGOSS)

(Case T-431/08)

(2008/C 313/84)

Language in which the application was lodged: English

Parties

Applicant: Bulur Giyim Sanayi ve Ticaret Sirketi (Istanbul, Turkey) (represented by: R. Böhm, lawyer)

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

Other party to the proceedings before the Board of Appeal: A V Denim, Inc. (trading as A&V Denim, Inc.) (New York, United States)

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 18 July 2008 in case R 1366/2007-2, insofar as it dismissed the appeal lodged by the applicant against the decision of the Opposition Division of 26 June 2007 ruling on opposition No B 923 005; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘VIGOSS’ for goods in classes 14, 18 and 25

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

Mark or sign cited: International trade mark registration No 771 374 of the figurative mark ‘VIGOSS’ for goods in class 25

Decision of the Opposition Division: Partially rejected the application

Decision of the Board of Appeal: Partially annulled the contested decision and dismissed the appeal for the reminder

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to take into account all relevant factors when assessing the likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 313/37

Action brought on 15 September 2008 — Nadine Trautwein Rolf Trautwein v OHIM (Representation of a horse)

(Case T-386/08)

(2008/C 313/67)

Language in which the application was lodged: German

Parties

Applicant: Nadine Trautwein Rolf Trautwein GbR, Research Development (Leopoldshohe, Germany) (represented by C. Czychowski, A. Nordemann and A. Dustmann)

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

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 7 July 2008 in Case R 1730/2007-1 together with the decision of the examiner of 25 September 2007 and

— to authorise the publication of the application for the registration of Community trade mark 4829354;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Representation of a horse for goods in Classes 18, 25 and 31 — Application No 4 829 354

Decision of the Examiner: 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 Council Regulation No 40/94 as the trade mark applied for is neither directly nor exclusively descriptive, and has a sufficiently distinctive character.
EN Official Journal of the European Union C 327/28

Appeal brought on 10 September 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission

(Case T-377/08 P)

(2008/C 327/54)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by J. Currall and B. Eggers)

Other party to the proceedings: Gerhard Birkhoff (Weitnau, Germany)

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission;

— order Mr Birkhoff to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal.

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 annulling the decision of the Settlements Office, in the form of a decision on a complaint, not to reimburse the costs of acquiring a new wheelchair two years after the last acquisition, on the grounds of lack of necessity.

The appellant submits in support of its appeal that, first, contrary to the applicable provisions of Community law, the judgment redefines the margin of discretion of the Medical Officer and of the Medical Council in that, according to the judgment, only independent medical bodies may have such a margin of discretion.

Second, the judgment disavows any significance in the opinions of the Medical Council — which, in practice, are important in the examination of the necessity of costs — by stating that it is merely an advisory body whose opinions are not published. This is contrary to settled case-law on the Joint Rules on sickness insurance for officials of the European Communities, as applicable on 22 March 2004. Furthermore, those opinions have the status of a rebuttable presumption in relation to the necessity of costs.

In addition, the appellant alleges a distortion of the facts or errors in the legal characterisation of the facts and of the subject-matter of the dispute, and an infringement of the obligation to state the reasons for the judgment, since an essential part of the decision on the complaint was declared to be non-existent.