ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 64/46

Action brought on 27 December 2007 — CB v Commission

(Case T-491/07)

(2008/C 64/76)

Language of the case: French

Parties

Applicant: Groupement des Cartes Bancaires (CB) GIE (Paris, France) (represented by: A. Georges, J. Ruiz Calzado, É. Barbier de La Serre, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks annulment of Commission Decision C(2007) 5060 final of 17 October 2007 relating to a proceeding under Article 81 EC (Case COMP/D1/38606 — GROUPEMENT DES CARTES BANCAIRES ‘CB’), concerning tariff measures for membership of the Groupement applicable to new members and the ‘sleeper member fee’ applicable to members of the Groupement which have not developed significant business in banking cards since becoming members.

In support of its application, the applicant puts forward six pleas in law.

The first plea alleges infringement of Article 81 EC, the principle of equal treatment and a failure to state reasons on account of alleged defects in the method of analysis of the measures and the markets adopted by the Commission, in that it failed to take account of either the overall context, all the relevant information, or the specific circumstances in which they were adopted and in which their effects are felt.

Second, the applicant puts forward a plea alleging infringement of Article 81(1) EC on account of errors of law, fact and assessment that the Commission made during the examination of the purpose of the measures which were notified to it. The applicant takes the view that the Commission has failed to comply with the obligation to examine the purpose of a decision by an association of undertakings and has not established that that purpose is anticompetitive.

By the third plea, the applicant claims that the contested decision infringes Article 81(1) EC also because of errors of law, fact and assessment that the Commission made during the examination of the effect of the measures notified to it.

In the alternative, the applicant argues that the Commission infringed Article 81(3) EC in the examination of the applicability of the four conditions required in order to obtain an exemption.

The fifth plea relied on by the applicant alleges infringement of the principle of sound administration resulting from supposed omissions, contradictions and distortions of a number of its arguments in the contested decision.

The final plea alleges infringement of the principles of proportionality and legal certainty.
EN Official Journal of the European Union C 64/54

Action brought on 2 January 2008 — Landesanstalt für Medien Nordrhein-Westfalen v Commission

(Case T-2/08)

(2008/C 64/86)

Language of the case: German

Parties

Applicant: Landesanstalt für Medien Nordrhein-Westfalen (LfM) (Düsseldorf, Germany) (represented by: A. Rosenfeld and G.-B. Lehr, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision C(2007) 5109 final of 23 October 2007 on the State Aid which the Federal Republic of Germany wishes to grant for the introduction of digital terrestrial television (DVB-T) in Nordrhein-Westfalen;

— the Commission to be ordered to pay the costs

Pleas in law and main arguments

The applicant is challenging Commission Decision C (2007) 5109 final of 23 October 2007 on State aid C 34/2006 (ex N 29/2005 and ex CP 13/2004), in which the Commission decided that the State aid which the Federal Republic of Germany wishes to grant to commercial service broadcasters in the context of the introduction of digital terrestrial television in Nordrhein-Westfalen, and which was notified to the Commission, is not compatible with the common market.

In support of its action the applicant submits, first, that the contested decision infringes Article 87(1) EC as the measure was wrongly found to amount to State aid. In this connection it is also submitted that there was infringement of Article 253 EC.

In addition it is submitted that an unlawful method of assessment was used in the context of the assessment under Article 87(3)(c) EC. In that regard, the applicant also maintains that there were errors of judgment and assessment and that there was infringement of Article 253 EC.

As a result of errors of judgment and assessment it is further submitted that there was infringement of Article 87(3)(b) and (d) EC.

Lastly, the applicant claims that the measure concerned is in any event covered by the exception in Article 86(2) EC. It is also submitted here that there was infringement of Article 253 EC.
EN Official Journal of the European Union C 92/37

Action brought on 28 January 2008 — Fusco v OHIM — Fusco International (FUSCOLLECTION)

(Case T-48/08)

(2008/C 92/74)

Language in which the application was lodged: Italian

Parties

Applicant: Vincenzo Fusco (represented by: B. Saguatti, 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: Antonio Fusco International SA, Luxembourg (Lugano branch) (Lugano, Switzerland)

Form of order sought

— annul the decision of the Second Board of Appeal of 24 October 2007 and amend it to the effect that the action brought by the applicant before the Board of Appeal should be considered to be well founded and, consequently, the opposition should be upheld;

— order OHIM and the intervening party, Antonio Fusco International SA, to pay the costs of the present proceedings and those of the proceedings before the Board of Appeal and the Opposition Division.

Pleas in law and main arguments

Applicant for a Community trade mark: Antonio Fusco International SA, Luxembourg (Lugano branch)

Community trade mark concerned: Figurative mark FUSCOLLECTION (application for registration No 1.503.366) in respect of goods in Classes 9, 18 and 25

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

Mark or sign cited in opposition: Community trade mark (No 727.375) and Italian trade mark (No 489.262) ENZO FUSCO in respect of goods in Class 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Art 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark
EN Official Journal of the European Union C 92/37

Appeal brought on 5 February 2008 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-109/06, Dittert v Commission

(Case T-51/08 P)

(2008/C 92/75)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by G. Berscheid and K. Herrmann, acting as Agents)

Other party to the proceedings: Daniel Dittert (Luxembourg, Grand Duchy of Luxembourg)

Form of order sought by the appellant

— Annul the judgment of the Civil Service Tribunal of 22 November 2007 in Case F-109/06 Dittert v Commission and refer the case back to the Civil Service Tribunal;

— order the respondent to pay the costs.

Pleas in law and main arguments

By the present appeal, the Commission seeks annulment of the judgment of 22 November 2007 in Case F-109/06 Dittert v Commission, by which the Civil Service Tribunal (CST) annulled its decision allocating to the applicant at first instance a number of priority points insufficient for him to be promoted in promotion year 2005 and its decision finalising the list of officials promoted during that promotion year inasmuch as it does not include the applicant's name.

In support of its appeal, the Commission raises three pleas in law seeking annulment.

Firstly, the Commission submits that the CST wrongly applied Article 45 of the Staff Regulations in that it attributed excessive importance to the involvement of the Director General in the procedure for allocating points, thus restricting unduly the discretion of the Appointing Authority following the finding that the lack of such involvement constituted a substantial procedural error.

Secondly, the Commission submits that the CST infringed the jurisdiction of the Appointing Authority in breach of Article 45 of the Regulations and exceeded its powers of judicial control by addressing an instruction to the Appointing Authority.

Thirdly, the Commission alleges that the CST failed to give sufficient reasons for the finding that the allocation to the applicant at first instance of a certain number of priority points by the Promotion Committee did not constitute an adequate remedy for the procedural error classified by the Tribunal as ‘substantial’ consisting in the lack of involvement of the Director General. Moreover, it claims that the CST based the contested judgment on a distortion of the contents of minutes of a meeting of the Promotion Committee.
EN Official Journal of the European Union C 107/33

Action brought on 13 February 2008 — JOOP! v OHIM (!)

(Case T-75/08)

(2008/C 107/55)

Language in which the application was lodged: German

Parties

Applicant: JOOP! GmbH (Hamburg, Germany) (represented by H. Schmidt-Hollburg and W. Möllering, 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 of 26 November 2007 in Case R 1134/2007-1;

— Order the Office for Harmonisation in the Internal Market to pay the costs including those incurred during the appeal proceedings

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘!’ for goods in Classes 14, 18 and 25 (application No 5 332 184)

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 Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character and its availability does not have to be preserved.

(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 107/33

Action brought on 18 February 2008 — Baldesberger v OHIM (shape of tweezers)

(Case T-78/08)

(2008/C 107/56)

Language in which the application was lodged: German

Parties

Applicant: Fides B. Baldesberger (Lugano, Switzerland) (represented by F. Nielsen, lawyer)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 December 2007 (Case R 1405/2007-4);

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark depicting tweezers, for goods in class 8 (application No 5 480 108).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has the requisite distinctive character.

(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 116/22

Action brought on 18 February 2008 — Dow Chemical v Commission

(Case T-77/08)

(2008/C 116/41)

Language of the case: English

Parties

Applicant: The Dow Chemical Company (Midland, United States) (represented by: D. Schroeder and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision insofar as it relates to the applicant;

— in the alternative, substantially reduce its fine; and

— order the Commission to pay the applicant's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant seeks 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 applicant, 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 its application, the applicant submits that the Commission committed manifest errors of assessment of the facts and erred in law in holding the applicant liable for the infringement of the joint venture DuPont Dow Elastomers. According to the applicant, the Commission failed to establish that the applicant had a decisive influence over DuPont Dow Elastomers. Furthermore, the applicant contends that it did not form a single economic unit with DuPont Dow Elastomers.

Moreover, the applicant alleges that the Commission committed a manifest error of assessment of the facts, erred in law and failed to provide adequate reasoning for its decision:

— in using a multiplier for duration of 6.5 even though the duration of the infringement was only six years and one month;

— in increasing the fine to be imposed on the applicant by 10 % for sufficient deterrent effect; and
EN Official Journal of the European Union C 107/34

Action brought on 19 February 2008 — CureVac v OHIM — Qiagen (RNAiFect)

(Case T-80/08)

(2008/C 107/57)

Language in which the application was lodged: German

Parties

Applicant: CureVac GmbH (Tübingen, Germany) (represented by: F. von Stosch, lawyer)

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

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 December 2007 in Case R 1219/2006-1 relating to Opposition No B 771 495;

— Refuse registration of Community trade mark No 3 304 813

— Order OHIM to pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Qiagen GmbH

Community trade mark concerned: The word mark ‘RNAiFect’ for goods in Classes 1, 5 and 9 (Application No 3 304 813)

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

Mark or sign cited in opposition: the word mark ‘RNActive’ for goods in Classes 1 and 5 (Community trade mark No 2 953 768), albeit that the opposition was brought against registration in respect of certain goods in Classes 1 and 5

Decision of the Opposition 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 40/94 (1) as there is a likelihood of confusion between the opposing marks due to the identity of the goods and the similarity of the 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 128/36

Action brought on 4 April 2008 — Aurelia Finance v OHIM (AURELIA)

(Case T-136/08)

(2008/C 128/76)

Language in which the application was lodged: English

Parties

Applicant: Aurelia Finance SA (Geneva, Switzerland) (represented by M. Elmslie, Solicitor)

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 9 January 2008 in case R 1214/2007-1;

— Remit the applicant's application for restitutio in integrum to OHIM for reconsideration; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A word mark consisting of the word AURELIA for various services in class 36 — application No 274 936

Decision of the OHIM: Refusal of the application for restitutio in integrum

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 78 of Council Regulation No 40/94 as the standard of due care required in connection with administrative renewals is lower than that for a party to proceedings before OHIM.
EN Official Journal of the European Union C 158/21

Action brought on 25 April 2008 — Shenzhen Taiden Industrial v OHIM — Bosch Security Systems (design of communications equipment)

(Case T-153/08)

(2008/C 158/35)

Language in which the application was lodged: English

Parties

Applicant: Shenzhen Taiden Industrial Co., Ltd (Shenzhen, China) (represented by: M. Hartmann, M. Helmer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bosch Security Systems BV (Eindhoven, Netherlands)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 February 2008 in case R 1437/2006-3; and

— order OHIM to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: A design for the product ‘communications equipment’ — registered Community design No 214903-0001

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Design produced as evidence by the party requesting the declaration of invalidity: An earlier design made available to the public by Koninklijke Philips Electronics NV registered as an international design under No DM/055655

Decision of the Invalidity Division: Dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Invalidity Division and declaration that the contested design is invalid

Pleas in law: Infringement of Article 63(1) of Council Regulation No 6/2002 as the Third Board of Appeal relied on alleged facts presented by the party requesting the declaration of invalidity for which no evidence was submitted; infringement of Articles 4(1) and 6(1) of Council Regulation No 6/2002 as the Third Board of Appeal erred in holding that the contested design lacked individual character and failed to assess and compare the designs at hand from the point of view of an informed user.
EN Official Journal of the European Union C 142/32

Action brought on 4 April 2008 — Schräder v CPVO — Jørn Hansson (Lemon Symphony)

(Case T-134/08)

(2008/C 142/58)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office

Other party to the proceedings before the Board of Appeal of CPVO: Jørn Hansson (Søndersø, Denmark)

Form of order sought

— Annul the decision of the Board of Appeal of CPVO of 4 December 2007 (Case A 006/2007);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community plant variety right concerned: Lemon Symphony

Proprietor of the Community plant variety right: Jørn Hansson

Decision of the Board of Appeal of the Community Plant Variety Office which is being contested: Failure to cancel the Community plant variety right for Lemon Symphony in accordance with Article 21 of Council Regulation (EC) No 2100/94 (1)

Appellant before the Board of Appeal: the Applicant

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law:

— Infringement of Article 59(2) of Commission Regulation (EC) No 1239/95 (2) inasmuch as the applicant was not summoned to the hearing in due form;

— Infringement of Article 71(1), in conjunction with Articles 21, 67 and 68, of Regulation No 2100/94 inasmuch as the grounds of appeal were not considered or not adequately considered;

— Infringement of Article 73 of Regulation No 2100/94 and Article 230 EC inasmuch as the applicant's right to judicial review of administrative action has been infringed;

— Infringement of Article 48 of Regulation No 2100/94 inasmuch as a member of the Board of Appeal allegedly had an interest in the proceedings.

(1) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

(2) Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).
EN Official Journal of the European Union C 183/28

Action brought on 3 June 2008 — Ziegler v Commission

(Case T-199/08)

(2008/C 183/53)

Language of the case: French

Parties

Applicant: Ziegler SA (represented by: J.-L. Lodomez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the European Commission Decision of 11 March 2008 on a proceeding under Article 81 of the EC Treaty and Article 53 of the EEE Agreement (Case COMP/38.453 — International Removal Services), which imposes a fine of EUR 9 200 000,00 on the applicant;

— in the alternative, cancel the fine;

— in the further alternative, substantially reduce the amount of the fine;

— in any event, order the European Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2008) 926 final of 11 March 2008 in Case COMP/38.453 — International Removal Services, by which the Commission found that certain undertakings, including the applicant, infringed Article 81 of the EC Treaty and Article 53 of the European Economic Area Agreement by fixing prices in Belgium for international removal services, by sharing part of that market and by rigging the procedure under invitations to tender.

In support of its allegations, the applicant claims that the Commission made manifest errors of assessment and of law in the definition of the market in question and in the evaluation of its size and of the market shares of each of the companies in question.

The applicant relies, in addition, on pleas in law alleging breach of the duty to state the reasons for the decision, of the rights of the defence, of the right of access to the file, of the right to fair procedure and of the general principle of sound administration.

So far as concerns the fine imposed and its amount, the applicant claims that:

— the Commission did not show that the practices in questions had appreciably affected trade between the Member States;

— the amount of the find is disproportionate in relation to the effective extent of the practices and their actual effect on the market; and

— the practice of bogus quotes was known and accepted by the Commission for a long time; the lack of any reaction by the Commission led the applicant to believe that the practice was lawful.

Finally, the applicant maintains that the Commission did not take into account, as mitigating circumstances, that the concerted practice ceased long ago so far as the applicant was concerned and that bogus quotes were a response to market demand and not a cartel or concerted practice. The applicant also relies on breach of the principle of equal treatment.