ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/69

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (Affiliato BRICO CENTER)

(Case T-483/09)

2010/C 24/122

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 — R 1048/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘Affiliato BRICOCENTER’ (Application No 4 939 344) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) in respect of services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 37/39

Action brought on 9 November 2009 — Escola Superior Agrária de Coimbra v Commission

(Case T-446/09)

2010/C 37/54

Language of the case: Portuguese

Parties

Applicant: Escola Superior Agrária de Coimbra (Bencanta, Portugal) (represented by: J. Pais do Amaral, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision D(2009)224268 of 9 September 2009;

— Order the Commission to pay the costs.

Pleas in law and main arguments

Lack of reasoning in relation to the requirement of reimbursement of the amount stipulated in point 8 of the letter of 12 August 2009.

Infringement of points 21.2 and 22 of the administrative framework provisions in relation to the other amounts, since a system was in place to record the time dedicated by each of the participants to the project, which indicated the name of the person and the time, in real time, which that person dedicated to the project.

Error of fact since the administration can act only if sure that the facts are correct. Mere doubt on the part of the administration as to whether the time recorded on the timesheets was actually dedicated to the project or not is not sufficient since the burden of proof is on the Commission.

Misassumption on the part of the Commission since there is no written obligation to adopt a specific type of system to record the duration of work carried out which is more rigorous than the recording of information on timesheets. Thus, while the contract is being executed and when it is no longer possible to alter the previous legitimate procedure for registering time dedicated to the project, namely by means of timesheets, the Commission cannot legitimately require more than what was originally stated and set out in the contract. In addition, it is inappropriate to make such an onerous demand that time dedicated to the project be recorded photographically.

The contested act infringes the principles of good faith, legitimate expectations, transparency, proportionality, and good and reasonable administration since the rules in place for recording time dedicated to the project are new, which is corroborated by the fact that those rules feature explicitly and clearly in subsequent versions of the program at issue.

Error in the assessment of the facts in so far as the size and the content of the refund ordered by the Commission is disproportionate to the content and nature of the alleged irregularities, given that it was not possible to attain the results reflected in being classed in tenth position out of 200 projects, without dedicating significantly more time to the project than actually paid for (once the refund ordered has been deducted).
EN Official Journal of the European Union C 37/44

Action brought on 7 December 2009 — MEDA Pharma v OHIM — Nycomed (ALLERNIL)

(Case T-492/09)

2010/C 37/63

Language in which the application was lodged: German

Parties

Applicant: MEDA Pharma GmbH & Co KG (Bad Homburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Nycomed GmbH (Konstanz, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 29 September 2009 in appeal proceedings R 1386/2007-4 concerning the objection lodged on the basis of the German trade mark No 1 042 583‘ALLERGODIL’ against the European part of the international registration 845 934‘ALLERNIL’;

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

Pleas in law and main arguments

Applicant for extension of protection: Nycomed GmbH

Trade mark for which an extension of protection is sought: the word mark ‘ALLERNIL’ for goods in Class 5 (international registration No 845 934, naming the European Community)

Proprietor of the mark cited in opposition proceedings: the applicant

Mark cited in opposition: the German word mark No 1 042 583‘ALLERGODIL’ for goods in Class 5

Decision of the Cancellation Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since the principles of trade mark law relating to the likelihood of confusion were not correctly applied;

— Infringement of Article 75 of Regulation No 207/2009 owing to deficiencies in the reasoning of the contested decision.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)
—

In the alternative, alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 September 2009 in case R 554/2009-2, to state that the Community trade mark concerned possesses sufficient distinctive character that no objection to its registration may be raised under Article 7(1)(b) of Council Regulation No 207/2009; and
EN Official Journal of the European Union C 13/26

Action brought on 1 September 2010 — Maftah v Commission

(Case T-101/09)

()

2011/C 13/51

Language of the case: English

Parties

Applicant: Elmabruk Maftah (London, United Kingdom) (represented by: E. Grieves, Barrister, and A. McMurdie, Solicitor)

Defendant: European Commission

Form of order sought

— Annul Regulation (EC) No 1330/2008 (1) insofar as it relates to the applicant;

— Order the defendant to immediately remove the applicant from the annex to the said regulation; and

— Order the defendant and/or the Council of the European Union to pay, in addition to its own costs, those incurred by the applicant and any sums advanced by way of legal aid by the cashier of the Court of Justice of the European Union.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Regulation (EC) No 1330/2008, insofar as the name of the applicant has been placed on the list of persons and entities to which certain restrictive measures were imposed.

In support of his action, the applicant submits the following pleas in law:

Firstly, the Commission has failed to independently review the basis of the applicant’s inclusion in Annex I to Regulation (EC) No 881/2002 (2) at any point, or required any reasons or evidence for that inclusion.

In addition, the Commission has failed to provide to the applicant with any reasons at all and then failed to provide any adequate reasons justifying his inclusion in Annex I to Regulation (EC) No 881/2002 in breach of his right to an effective judicial remedy, the right to defend himself and in breach of his rights to property under the European Convention on Human Rights.

Finally, the continued inclusion in Annex I to Regulation (EC) No 881/2002 is irrational given that: (i) there were and are no reasons available which would satisfy the relevant criteria for inclusion in the said annex; (ii) the United Kingdom’s government’s position is that the applicant no longer fulfils the relevant criteria; and (iii) the judgments by a specialized UK Court that the Libyan Islamic Fighting Group has not merged with the Al-Qaida network and/or every person associated with the Libyan Islamic Fighting Group has an Al-Qaida violent global jihadist ideology.

(1) Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60).

(2) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).
EN Official Journal of the European Union C 80/31

Action brought on 28 December 2009 — PAKI Logistics GmbH v OHIM

(Case T-526/09)

2010/C 80/53

Language in which the application was lodged: German

Parties

Applicant: PAKI Logistics GmbH (Ennepetal, Germany) (represented by M. Bergermann, P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt and J. Vogtmeier, 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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 October 2009 (R 180/2007-1);

— order the defendant to pay the costs of the proceedings, including those incurred in connection with the appeal.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘PAKI’ for goods and services in Classes 6, 20, 37 and 39 (Application No 4 790 895)

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Error of law in the application of Article 7(1)(f) of Regulation No 207/2009 (1) in conjunction with Article 7(2) of the same Regulation, since the mark applied for is not contrary to accepted principles of morality

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 63/49

Appeal brought on 15 January 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal of 29 October 2009 in Case F-94/08, Marcuccio v Commission

(Case T-12/10 P)

2010/C 63/86

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— In any event, set aside in its entirety and without exception the order under appeal.

— Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever.

— Allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings.

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order made by the Civil Service Tribunal (CST) on 29 October 2009 in Case F-94/08 Marcuccio v Commission. That order dismissed as manifestly inadmissible an action for annulment of the note of 28 March 2008 by which the European Commission informed the appellant of its intention to make a deduction from his invalidity benefit in order to secure payment of the costs incurred in earlier proceedings.

In support of his claims, the appellant alleges distortion and misrepresentation of the facts in the order under appeal, a total failue to state reasons and misapplication and misinterpretation of the principle tempus regit actum and of the concept of a decision having an adverse effect.
EN Official Journal of the European Union C 80/43

Appeal brought on 26 January 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal of 10 November 2009 in Case F-70/07, Marcuccio v Commission

(Case T-38/10 P)

2010/C 80/68

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— In any event, set aside in its entirety and without exception the order under appeal.

— Declare that the action at first instance, in relation to which the order under appeal was made, was admissible in its entirety and without any exception whatsoever.

— Allow in its entirety and without any exception whatsoever the relief sought at first instance.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings.

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 10 November 2009. That order dismissed as manifestly inadmissible the first, second, third and sixth heads of claim in an action for an order that the Commission pay compensation for the damage allegedly suffered as a result of the refusal to reimburse the appellant in respect of the recoverable costs purportedly incurred in Case T-176/04 Marcuccio v Commission.

In support of his claims, the appellant alleges misinterpretation and misapplication of the concept of a request within the meaning of Articles 90 and 91 of the Staff Regulations, illogical and unreasoned failure to have regard to the relevant case-law, absolute failure to state reasons, breach of the obligation to disregard the defence when it is lodged out of time, an error in accepting a document entitled ‘application for a declaration that there is no need to adjudicate’, and infringement of Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 80/42

Appeal brought on 28 January 2010 by Carlo de Nicola against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-55/08, De Nicola v EIB

(Case T-37/10 P)

2010/C 80/67

Language of the case: Italian

Parties

Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, lawyer)

Other party to the proceedings: European Investment Bank (EIB)

Form of order sought by the appellant

The appellant claims that the General Court should:

— set aside the judgment under appeal;

— order the European Investment Bank (EIB) to pay the costs of the proceedings, together with interest, currency revaluation to be taken into account in fixing the amount awarded.

Pleas in law and main arguments

The present appeal is brought against the judgment of the Civil Service Tribunal (CST) of 30 November 2009. That judgment dismissed the action brought by Mr De Nicola for (i) annulment of the decision by which the EIB rejected his appeal seeking a review of his assessment for 2006 and annulment of the EIB’s decision on the promotions for 2006, in so far as Mr De Nicola was not promoted; (ii) annulment of Mr De Nicola’s staff report for 2006; (iii) a declaration that Mr De Nicola had been the victim of psychological harassment; (iv) an order that the EIB pay compensation for the damage purportedly sustained as a result of that harassment; and (v) annulment of the decision refusing to meet the cost of certain medical expenses for laser therapy treatment.

Mr De Nicola relies on the following pleas in law in support of his appeal:

— The CST declined, unlawfully, to give a ruling and, when it did not completely forget the subject-matter of the action (for example, the second and third arguments in the application for annulment; the refusal of the Appeals Committee to rule on the merits; and so on), deliberately decided to examine only some of the pleas;

— The CST did not rule on Mr De Nicola’s request that it examine whether the conduct of his superiors was lawful in the light of the evaluation criteria adopted by the EIB. Moreover, it incorrectly attributed to other employees the harassment of which Mr De Nicola complained, whereas he attributes this directly and solely to the EIB;

— By way of ground of appeal, Mr De Nicola also refers to the refusal of the requests for production of evidence and the reversal of the burden of proof, as well as the failure to state reasons. On that last point, it is argued that the CST failed to state the reasons relating to many decisive issues, or gave contradictory and/or illogical reasons. In that connection, Mr De Nicola refers, in particular, to the refusal to apply Article 41 of the Staff Regulations, and the rejection of the request for annulment of the staff report for 2006;
EN Official Journal of the European Union C 100/42

Action brought on 25 January 2010 — Esprit International v OHIM — Marc O’Polo International (Representation of the letter ‘e’ on a trouser pocket)

(Case T-22/10)

2010/C 100/66

Language in which the application was lodged: German

Parties

Applicant: Esprit International LP (New York, United States of America) (represented by: M. Treis, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marc O’Polo International GmbH (Stephanskirchen, Germany)

Form of order sought

— Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2009 in Case R 1666/2008-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Esprit International

Community trade mark concerned: a figurative mark representing the letter ‘e’ on a trouser pocket for goods in Classes 18 and 25 (Application No 5 089 859)

Proprietor of the mark or sign cited in the opposition proceedings: Marc O’Polo International GmbH

Mark or sign cited in opposition: in particular, a German figurative mark No 30 303 672 representing the letter ‘e’ for goods in Classes 18 and 25

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 134/48

Action brought on 30 March 2010 — Ben Ri Electrónica v OHIM — Sacopa (LT LIGHT-THECNO)

(Case T-143/10)

2010/C 134/78

Language in which the application was lodged: Spanish

Parties

Applicant: Ben Ri Electrónica SA (Madrid, Spain) (represented by: A. Alejos Cutuli, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sacopa SAU (Sant Jaume de Llierca (Girona), Spain)

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM and reject Community mark No 4 520 193;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Sacopa SAU

Community trade mark concerned: Figurative mark which contains the word element ‘LT’ (Application No 4 520 193) for goods in Classes 7, 9 and 11.

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

Mark or sign cited in opposition: Community figurative mark (No 13 375) and Spanish figurative marks (Nos 1 719 729 and 1 719 730) composed of the juxtaposition of and ‘L’ and a ‘T’ superimposed on a circle for goods in Classes 9 and 11.

Decision of the Opposition Division: Partial rejection of the opposition.

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 148/43

Action brought on 1 April 2010 — Bank Nederlandse Gemeenten NV v Commission

(Case T-151/10)

2010/C 148/72

Language of the case: Dutch

Parties

Applicant: Bank Nederlandse Gemeenten NV (The Hague, Netherlands) (represented by: B. Drijber, lawyer)

Defendant: European Commission

Form of order sought

— Annul the Commission’s Decision of 15 December 2009 (C(2009) 9963) in so far as concerns the Commission’s finding that the opportunity for housing corporations to borrow from the Bank Nederlandse Gemeenten NV constitutes State aid within the meaning of Article 107(1) TFEU;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant’s application is for the partial annulment of Commission Decision C(2009) 9963 final of 15 December 2009 concerning State aid No E 2/2005 and N 642/2009 — The Netherlands, Existing and special project aid to housing corporations.

In support of its application the applicant submits, first, that the contested decision is contrary to Article 107(1) TFEU because the Commission’s conclusion that the applicant’s loans constituted State aid was based on an incorrect interpretation of the condition for liability.

Second, the contested decision is contrary to Article 107(1) TFEU because the Commission’s conclusion that the applicant’s loans were not in accordance with market conditions, and therefore contained an advantage, was based on an incorrect interpretation of the facts.

Third, the Commission infringed the obligation to state reasons and the principle of care because, despite the submissions concerning the loans which the applicant put forward through the Netherlands authorities, the Commission found, without any investigation, that the loans were State aid.