ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 151/40

Action brought on 16 March 2017 — CBA Spielapparate- und Restaurantbetriebs v Commission

(Case T-168/17)

(2017/C 151/51)

Language of the case: German

Parties

Applicant: CBA Spielapparate- und Restaurantbetriebs GmbH (Vienna, Austria) (represented by: A. Schuster, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— uphold the action for annulment and annul the contested decision;

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

Pleas in law and main arguments

By its present action, the applicant seeks the annulment of Commission Decision C (2017) 249 final of 13 January 2017 concerning the applicant’s confirmatory application for access to documents under Regulation (EC) No 1049/2001. (1)

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

1. Fist plea in law: infringement of essential procedural requirements, in particular a failure to state reasons

2. Second plea in law: infringement of the law of the Treaties The applicant submits that the exceptions provided for in Article 4 of Regulation (EC) No 1049/2001 and applied by the Commission are unlawful, since they conflict with higher-ranking primary law, in particular with Articles 42 and 47 of the Charter of Fundamental Rights of the European Union. Furthermore, the primacy of application of higher-ranking primary law over conflicting secondary law also applies in EU law, with the result that, for this reason, too, the Commission should not have applied the exceptions provided for in Article 4 of Regulation (EC) No 1049/2001.

(1) 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).
1.

By this action, the Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) challenges the requests made by the Commission by means of its debit note 3241615289/29.11.2016, in relation to participation in the CATER project. By means of that debit note, the Commission requested that ΕΚΕΤΑ reimburse part of the payment received by it for the CATER project, a sum of EUR 172 992,15. The request follows an on-the-spot audit which was carried out by the European Commission at the applicant’s premises.
1.

In support of its action for damages, the applicant submits that the claim for financial compensation is based on the first paragraph of Article 266 TFEU, since the Commission failed to implement the Printeos judgment in full, in not paying it the relevant interest, or, alternatively, on the second paragraph of Article 266 TFEU, the second paragraph of Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union, for the damage caused by the Envelopes decision and the failure to implement the Printeos judgment in full. The applicant submits in that regard that the Commission’s unlawful conduct had no legal basis because Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), relied upon by the Commission in its decision of 26 January 2017, had already been repealed, and because Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) must be considered contrary to Article 266 TFEU, Article 340 TFEU and Articles 41(3) and 47 of the Charter of Fundamental Rights of the European Union.
—

The contested decision breaches Article 2(8)(b) of Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (OJ 2006 L 396, p. 1, the ‘REACH Regulation’), since intermediate uses are exempt from the entire Title VII pursuant to Article 2(8)(b) of the REACH Regulation, and are thus outside the scope of Articles 57 and 59 and outside the scope of authorisation.
EN Official Journal of the European Union C 195/44

Action brought on 28 April 2017 — Robert Bosch v EUIPO (Simply. Connected.)

(Case T-251/17)

(2017/C 195/59)

Language of the case: German

Parties

Applicant: Robert Bosch GmbH (Stuttgart, Germany) (represented by: S. Völker and M. Pemsel, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU figurative mark containing the word elements ‘Simply. Connected.’ — Application for registration No 14 814 057

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 9 March 2017 in Case R 948/2016-5

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs, including the cost of the proceedings before the Board of Appeal.

Pleas in law

— Infringement of Article 64 of Regulation No 207/2009, in conjunction with Article 263 of the Treaty on the Functioning of the European Union;
EN Official Journal of the European Union C 178/31

Action brought on 12 April 2017 — M J Quinlan & Associates v EUIPO — Intersnack Group (Shape of a kangaroo)

(Case T-219/17)

(2017/C 178/45)

Language in which the application was lodged: German

Parties

Applicant: M J Quinlan & Associates Pty Ltd (Hope Island, Queensland, Australia) (represented by: M. Freiherr von Welser and A. Bender, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Intersnack Group GmbH & Co. KG (Düsseldorf, Germany)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU tridimensional mark (Shape of a kangaroo) — European Union trade mark No 13 342

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 27 January 2017 in Case R 218/2016-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs;

— conduct an oral hearing, in order to ensure the parties’ right to a full hearing.

Pleas in law

— Infringement of Article 51(1)(a) of Regulation No 207/2009;

— Infringement of Article 51(1)(a) in conjunction with Article 15(2) of Regulation No 207/2009;
EN Official Journal of the European Union C 202/26

Action brought on 5 May 2017 — ExpressVPN v EUIPO (EXPRESSVPN)

(Case T-265/17)

(2017/C 202/42)

Language of the case: English

Parties

Applicant: ExpressVPN Ltd (Glen Vine, United Kingdom) (represented by: A. Muir Wood, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: International registration designating the European Union in respect of the figurative mark containing the word element ‘EXPRESSVPN’ — Application for registration No 1 265 562

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 16 February 2017 in Case R 1352/2016-5

Form of order sought

The applicant claims that the Court should:

— alter the contested decision to permit the mark proceed to registration on the basis that the mark is neither descriptive nor devoid of distinctive character and the basis of the evidence of acquired distinctiveness submitted to the examiner and to the Fifth Board of Appeal;

— issue an order for payment of the costs incurred by the applicant in connection with this appeal.

Plea in law
2.

Second plea in law, alleging that there is an insufficient basis for the freeze: — Contrary to the evidence presented by the applicant, the Council considers the applicant’s assets to be illegitimate, but fails to state reasons. — In holding the applicant’s assets to be illegitimate the Council makes an error of factual assessment, in so far as it has made any assessment; — The freeze is devoid of purpose, because it is designed to assist Tunisia to recover misappropriated assets. However, none of the applicant’s assets were misappropriated.
2.

Second plea in law, relating to the temporary employment contract governed by Belgian law invoked by the Commission as justification for the view that the applicant established his residence in Belgium during a period of employment for a private employer. This plea in law is divided into three parts: — first part, alleging that the Commission misused and abused its powers by attempting to exclude any hierarchical relationship between itself and the applicant during his period of employment as an agency staff member in order to be able to deny the existence of employment with an international organisation, which would in principle have to result in the postponement of any determination as to whether the conditions required by Article 4 of Annex VII to the Staff Regulations had been satisfied; — second part, alleging an error in law, infringement of the Belgian statutory provisions relating to temporary employment contracts and misuse of powers by the Commission; — third part, alleging a manifest error of assessment, infringement of the principle of proportionality and infringement of the principle of sound administration.
EN Official Journal of the European Union C 213/30

Action brought on 20 February 2017 — Computer Market v EUIPO (COMPUTER MARKET)

(Case T-111/17)

(2017/C 213/41)

Language of the case: English

Parties

Applicant: Computer Market (Sofia, Bulgaria) (represented by: B. Dimitrova, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU figurative mark containing the word elements ‘COMPUTER MARKET’ — Application for registration No 14 688 477

Contested decision: Decision of the Second Board of Appeal of EUIPO of 13 December 2017 in Case R 1778/2016-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision.

Plea in law
EN Official Journal of the European Union C 231/27

Action brought on 20 Feburary 2017 — Crédit Agricole and Crédit Agricole Corporate and Investment Bank v Commission

(Case T-113/17)

(2017/C 231/34)

Language of the case: French

Parties

Applicants: Crédit Agricole SA (Montrouge, France) and Crédit Agricole Corporate and Investment Bank (Montrouge) (represented by: J.-P. Tran Thiet, lawyer, M. Powell, Solicitor, J. Jourdan and J.-J. Lemonnier, lawyers)

Defendant: European Commission

Form of order sought

Principally:

— annul Article 1(a) and, in consequence, Article 2(a) of the decision;

— in any event, annul Article 2(a) of the decision.

In the alternative:

— significantly reduce the fine imposed on the applicants in the exercise of its unlimited jurisdiction in application of Article 261 TFEU and Article 31 of Regulation No 1/2003.

Additionally:

— annul the decisions of the Hearing Officer of 2 October 2014, 4 March 2015, 27 March 2015, 29 July 2015 and 19 September 2016 and, in consequence, annul Articles 1(a) and 2(a) of the decision;

— order the Commission to pay all the costs.

Pleas in law and main arguments

This action concerns the annulment in part of European Commission Decision C(2016) 8530 final of 7 December 2016 concerning a procedure in application of Article 101 TFEU in the case of Euro interest rate derivatives (AT.39914 — EIRD), imposing a fine of EUR 114 654 000 on the applicants and, in the alternative, a very significant reduction in that penalty.

In support of the action, the applicants rely on 10 pleas in law.

1. First plea in law, alleging infringement of the right of access to the courts and the adversarial principle.

2. Second plea in law, alleging infringement of the duty of impartiality and the presumption of innocence.

3. Third plea in law, alleging that the contested decision does not establish the participation of the applicants in the manipulative practices alleged.

4. Fourth plea in law, alleging that the contested decision incorrectly classifies the practices referred to as restrictions by object.

5. Fifth plea in law, alleging an error of law committed by the Commission in that it regarded all the practices as constituting a single infringement.

6. Sixth plea in law, alleging that the contested decision failed to establish to the requisite legal standard that the applicants were aware of the overall plan or that they intended to participate therein.

7. Seventh plea in law, alleging that the contested decision is vitiated by an error of law, in that it classified the applicants’ alleged infringement as continuous, when, at most, it was repeated.

8. Eighth plea in law, alleging that the contested decision is vitiated by an error of law, in that it attributed the practices of traders to the applicants.

9. Ninth plea in law, alleging that the Commission imposed a fine in breach of the principle of equal treatment, the principle of sound administration, its obligation to state reasons, the rights of the defence and the principle of proportionality.
1.

First plea in law: The approach complained about by the defendant is not an infringement of substantive law — The applicant’s action, of which the defendant complains, in the award of two contracts for the delivery of agricultural goods did not infringe binding substantive law requirements for the organisation of calls to tender in the field of humanitarian projects. In particular, it was in conformity with the mandatory procurement principles under Article 184(1) of the Implementing Rules relating to the EU Financial Regulation 2009 and Article 2(3) of the Rules and Procedures in Annex IV to the Framework Partnership Agreement on the EU’s cooperation with Non-Governmental Organisations in the field of humanitarian assistance of 2008. — The action complained of moreover does not infringe the documentation requirement under Article 23(4) of the general rules laid down in Annex III to the Framework Partnership Agreement.
EN Official Journal of the European Union C 231/39

Action brought on 15 May 2017 — Sky v EUIPO — Parrot Drones (Parrot SKYCONTROLLER)

(Case T-288/17)

(2017/C 231/48)

Language in which the application was lodged: English

Parties

Applicant: Sky plc (Isleworth, United Kingdom) (represented by: J. Barry, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Parrot Drones (Paris, France)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark containing the word elements ‘Parrot SKYCONTROLLER’ — Application for registration No 13 107 842

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 March 2017 in Case R 457/2016-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the applicant’s costs of this application and the proceedings before the Office.

Plea(s) in law
EN Official Journal of the European Union C 239/70

Action brought on 2 June 2017 — Daico International v EUIPO — American Franchise Marketing (RoB)

(Case T-355/17)

(2017/C 239/81)

Language in which the application was lodged: English

Parties

Applicant: Daico International BV (Amsterdam, Netherlands) (represented by: M. Kassner, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: American Franchise Marketing Ltd (London, United Kingdom)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark ‘RoB’ — EU trade mark No 5 284 104

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 9 March 2017 in Case R 1405/2016-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs.

Pleas in law

— Infringement of Article 75(1) of Regulation No 207/2009;
1.

First plea in law, alleging that the Commission erred in law and/or in fact and/or failed to meet the applicable standard of proof by including the applicant in Article 1(1) and 1(4) of the operative part of the contested decision and finding that the applicant participated in the alleged single and continuous infringement. — The applicant puts forward that there is no lawful basis for being included in the intra-European infringements. — The applicant further claims that there is no adequate factual basis for being included in the intra-European infringements. — The applicant further alleges that the Commission’s reliance on new reasons is in breach of its rights of defence. — The applicant finally puts forward that the Commission’s unlawful inclusion of the applicant within Article 1(1) to 1(4) is fatal to its attempt to establish that the applicant participated in the alleged single and continuous infringement.
2.

Second plea in law, alleging that the Commission committed a manifest error in its assessment regarding the incentive to engage in input foreclosure on the market of wholesale supply of Premium Pay TV Sports channels. — The applicant puts forward that before the merger, Ziggo already had the ability and incentive to foreclose must have content from competitors. According to the applicant, the Commission knew this and the merger thus permits to extend the foreclosure to new markets, such as the markets for fixed-mobile multiplay bundles. — The applicant equally puts forward that the Commission erroneously assessed that the consumption of content on mobile devices is minor and that therefore these markets would not be affected by the merger. Furthermore, so the applicant claims, the Commission erroneously assessed that the markets for fixed-mobile multiplay bundles are only at their early stages in the Netherlands. — According to the applicant, the Commission therefore erroneously came to the conclusion that the merger would have no negative effects regarding foreclosure of sports content on the markets for fixed-mobile multiplay bundles.
1.

First plea in law, based on a plea of illegality directed against the decision of the Director of the European Anti-Fraud Office (OLAF) of 16 October 2012 to implement only a one-off reclassification for temporary agents with contracts of indeterminate duration. The applicants consider that that decision is unlawful in that its adoption infringed Articles 10(3) and 15 of the Conditions of Employment of Other Servants of the European Union (‘CEOS’), contrary to the hierarchy of norms and the principle of the protection of legitimate expectations. Thus, the decision of the Director of OLAF of 15 July 2016 rejecting the request for reclassification of 16 March 2016 and that of 13 February 2017 rejecting the complaint of 14 October 2016 (‘the contested decisions’) were, they submit, adopted on the basis of an unlawful decision and should therefore be annulled.
1.

First plea in law, alleging that the defendant infringed the EU law of public procurement, the principles of transparency and equal treatment and the provisions of the Financial Regulation, by not communicating to the applicants the award decision at the same time it communicated it to the other tenderers and by refusing to respect the standstill period. The applicants argue that the defendant acted in breach of the principle of sound administration by adversely affecting the applicants’ right to an effective remedy against the contested decision.
EN Official Journal of the European Union C 256/37

Action brought on 13 June 2017 — Cuervo y Sobrinos1882 v EUIPO — A. Salgado Nespereira (Cuervo y Sobrinos LA HABANA 1882)

(Case T-374/17)

(2017/C 256/42)

Language in which the application was lodged: Spanish

Parties

Applicant: Cuervo y Sobrinos1882, SL (Madrid, Spain) (represented by: S. Ferrandis González and V. Balaguer Fuentes, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: A. Salgado Nespereira, SA (Ourense, Spain)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark containing the word elements ‘Cuervo y Sobrinos LA HABANA 1882’ — EU trade mark No 10 931 087

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 March 2017 in Case R 1141/2016-4

Form of order sought

The applicant claims that the Court should:

— annul in part the decision of the Fourth Board of Appeal of EUIPO of 29 March 2017 in Case R 1141/2016-4, specifically, in so far as its confirms the decision of the Cancellation Division of EUIPO of 29 April 2016, in the cancellation proceedings No 10 786 C declaring invalid EU trade mark No 010931087 ‘Cuervo y Sobrinos LA HABANA 1882’ for goods registered for that mark in Classes 14 and 16;

— order the defendant to bear the costs of the present proceedings, as well as all those incurred to date in the earlier proceedings before the Opposition Division and the Fourth Board of Appeal of EUIPO that have led to the present application.

Plea in law
EN Official Journal of the European Union C 277/50

Action brought on 27 June 2017 — Vienna International Hotelmanagement v EUIPO (Vienna House)

(Case T-402/17)

(2017/C 277/72)

Language of the case: German

Parties

Applicant: Vienna International Hotelmanagement AG (Vienna, Austria) (represented by: M. Zrzavy, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘Vienna House’ — Application No 14 501 357

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 25 April 2017 in Case R 333/2016-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs.

Pleas in law
EN Official Journal of the European Union C 277/51

Action brought on 27 June 2017 — Vienna International Hotelmanagement v EUIPO (VIENNA HOUSE)

(Case T-403/17)

(2017/C 277/73)

Language of the case: German

Parties

Applicant: Vienna International Hotelmanagement AG (Vienna, Austria) (represented by: M. Zrzavy, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Mark at issue: EU figurative mark containing the word elements in red ‘VIENNA HOUSE’ — application No 14 501 308

Contested decision: decision of the Fourth Board of Appeal of EUIPO of 25 April 2017 in Case R 332/2016-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs.

Pleas in law

Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.
EN Official Journal of the European Union C 300/37

Action brought on 19 July 2017 — Medisana v EUIPO (happy life)

(Case T-457/17)

(2017/C 300/46)

Language of the case: German

Parties

Applicant: Medisana AG (Neuss, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘happy life’ — Application for registration No 15 164 023

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 May 2017 in Case R 1965/2016-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs.

Plea in law