ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/65

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

(Case T-476/09)

2010/C 24/115

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 24 September 2009 — R 1006/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 934 212) 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.
—

Annul Article 2 of the decision insofar as the applicant is ordered to pay the sum of EUR 6,093 million jointly and severally with the company Leali SpA.
EN Official Journal of the European Union C 24/58

Action brought on 16 November 2009 — CheapFlights International v OHIM — Cheapflights (Cheapflights)

(Case T-460/09)

2010/C 24/103

Language in which the application was lodged: English

Parties

Applicant: CheapFlights International Ltd (Ballybofey, Ireland) (represented by: H. Hartwig and A. von Mühlendahl, lawyers)

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

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 August 2009 in case R 1356/2007-4;

— Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Opposition Division of the defendant of 22 June 2007 in opposition proceedings B 806 531;

— Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it decide to become an intervener in this case.

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 figurative mark “Cheapflights”, for goods and services in classes 9, 16, 35, 38, 39, 41, 42, 43 and 44

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

Mark or sign cited: Irish trade mark registration of the figurative sign “CheapFlights”, for services in classes 35, 36, 38, 39, 41, 42, 43 and 44; Irish trade mark application of the word mark “CHEAPFLIGHTS”, for services in classes 35, 39 and 43; Irish trade mark registration of the word mark “CHEAPFLIGHTS”, for services in classes 38, 41, 42 and 44; Irish trade mark registration of the figurative sign “CheapFlights.ie”, for service in classes 35, 39, 41, 42 and 43; International trade mark registration of the figurative sign “CheapFlights”, for services in classes 35, 38, 39 and 42

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition in its entirety

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly held that there was no likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 51/39

Appeal brought on 21 December 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 7 October 2009 in Case F-3/08, Marcuccio v Commission

(Case T-515/09 P)

2010/C 51/74

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 of the Civil Service Tribunal (CST) of 7 October 2009 in Case F-3/08. That order dismissed as manifestly unfounded an action seeking annulment of the Commission’s decision refusing to send to the appellant a translation in Italian of a previous decision and an order that the Commission pay compensation for the damage resulting from that refusal. The order under appeal also ordered the appellant, pursuant to Article 94(a) of the Rules of Procedure of the CST, to pay to the Tribunal the sum of EUR 1 000.

In support of his claims, the appellant relies on the following pleas:

— a total failure to state reasons and distortion and misrepresentation of the facts insofar as concerns the assertions made by the CST concerning whether it was possible for the appellant to understand the content of the letter in question in the language version in which it was notified to him.

— Failure to have regard to the rules of law relating to the right of any individual to apply to a Community institution using any of the official languages of the Union and to receive a reply in the same language.
EN Official Journal of the European Union C 37/46

Action brought on 7 December 2009 — Italy v Commission

(Case T-500/09)

2010/C 37/66

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

Defendant: European Commission

Form of order sought

— Annul in part Decision C (2009) 7044 of 24 September 2009, notified on 25 September 2009, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), insofar as it applied to Italy, for the financial years 2005 and 2006: — fixed-rate financial corrections (5 %) on account of various alleged weaknesses in controls in the fruit and vegetables sector — citrus processing — totalling EUR 3 539 679,81.

Pleas in law and main arguments

In support of its challenge, the Italian Republic pleads breach of an essential procedural requirement (Article 253 EC), on account of a failure to state adequate reasons, and breach of the principle of proportionality.

The applicant submits in that connection that the Commission corrected certain aid for citrus processing and, in implementing those corrections, failed to ensure that adequate checks had been carried out as to whether the product delivered to the producers’ organisations tallied with the product delivered to the processors and as to whether the product delivered for processing tallied with the finished product. According to the Italian Government, in the course of the procedure it had emerged that the checks had been carried out satisfactorily, in particular as regards both administrative/accounting checks and physical checks, at both the Organizzazione di Produttori (Producers’ Organisation) and the processors; the checks were unannounced (without prior notice to the industry as to the date of the checks) and, in any event, were greater in number than that provided for in the relevant legislation. The essential point which the Commission should have addressed by stating adequate reasons in its decision was therefore whether the risk of loss to the Fund was ‘significant’, such as to justify a fixed-rate correction of 5 %, which appears, in any event, to be disproportionate.
EN Official Journal of the European Union C 148/31

Action brought on 6 April 2010 — Ayadi v Commission

(Case T-527/09)

2010/C 148/56

Language of the case: English

Parties

Applicant: Chafiq Ayadi (represented by: H. Miller Solicitor, B. Emmerson and S. Cox, Barristers)

Defendant: European Commission

Form of order sought

— annul Commission Regulation No 954/2009, in so far as it applies to the applicant;

— order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicant seeks the partial annulment of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th 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 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 puts forward four pleas in law in support of its claims.

First, the applicant submits that the Commission misused its power by including the applicant in Annex I to Regulation No 881/2002 without having carefully and impartially examined all the relevant elements of the applicant’s case.

Second, the applicant claims that the contested regulation was adopted in breach of the applicant’s right to effective judicial review since the regulation lacked of evidential basis and, in consequence, the Court is unable even to begin to exercise its duty of considering that evidence.

Third, the applicant argues that the contested regulation was adopted in breach of the applicant’s right of defence. He submits that the Commission failed to provide a statement of evidence but only provided the allegations in the Sanctions Committee statement. Without the evidence, the applicant was unable to address the Commission on defects in that evidence or misunderstandings.

Fourth, he claims that the contested regulation, freezing the applicant’s assets both retrospectively and, for an indefinite period, prospectively, constitutes an unjustified restriction on his fundamental right of property.
EN Official Journal of the European Union C 80/30

Action brought on 24 December 2009 — TF1 and Others v Commission

(Case T-520/09)

2010/C 80/51

Language of the case: French

Parties

Applicants: Télévision française 1 (TF1) (Boulogne Billancourt, France), Métropole télévision (M6) (Neuilly-sur-Seine, France), Canal + SA (Issy-Les-Moulineaux, France) (represented by: J.-P. Hordies and C. Smits, lawyers)

Defendant: European Commission

Form of order sought

— Annul the decision of the European Commission of 1 September 2009 in State Aid Case C 27/09 (ex N 34/A/09 and N 34/B/09) — Budgetary grant in favour of France Télévisions (2010-2012) in so far as it decides to deem the budgetary grant notified of EUR 450 million for 2009, in favour of France Télévisions, compatible with the EC Treaty under Article 86(2) thereof;

— Order the Commission to open the formal investigation procedure into the aid, laid down in Article 108(2) TFEU;

— Order the Commission to pay all the costs of the case.

Pleas in law and main arguments

The present action seeks the annulment of Decision C(2009) 6693 final of 1 September 2009, issued by the Commission following the procedure laid down in Article 88(3) EC (now Article 108 TFEU), by which the Commission deemed a budgetary grant, of a maximum amount of EUR 450 million for 2009 in favour of France Télévisions, compatible with the common market. The applicants request, against that background, that the formal investigation procedure be opened in accordance with Article 108(2) TFEU.

In support of their claim, the applicants put forward a single plea alleging that there were serious difficulties in the face of which the Commission was required to open the formal investigation procedure laid down in Article 88(2) EC (now Article 108(2) TFEU) and to invite interested parties to make observations.

The applicants assert that there were indications of serious difficulties resulting, on the one hand, from the circumstances of the preliminary investigation procedure and, on the other, from the content of the contested decision.

The excessive duration of the preliminary investigation procedure, the conduct of the procedure and the amount of the disputed funding are such as to show that there are serious difficulties concerning the circumstances of the preliminary investigation procedure.

The existence of indications of serious difficulties concerning the content of the contested decision is based on two factors. Firstly, it arises from the insufficient level of information, or even incorrect information, held by the Commission at the time of adoption of the contested decision and, secondly, from the fact that it was impossible for the Commission to conclude that the aid was compatible without an in-depth analysis, having regard to the structural concerns of over-compensation in the present case.
EN Official Journal of the European Union C 80/36

Action brought on 19 January 2010 — Steinberg v Commission

(Case T-17/10)

2010/C 80/60

Language of the case: English

Parties

Applicant: Gerald Steinberg (Jerusalem, Israel) (represented by: T. Asserson, lawyer)

Defendant: European Commission

Form of order sought

— annulment of the contested decision;

— disclosure within 15 days of all documents specified in the application;

— award for costs;

— any other relief which the Court deems appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission decision of 15 May 2009, received by the applicant on 22 November 2009, partially rejecting his request, pursuant to Regulation No 1049/2001 (1), of the access to documents related to funding decisions for grants to Israeli and Palestinian non-governmental organisations for the past three years under the ‘Partnership for Peace’ (PfP) and ‘European Instrument for Democracy and Human Rights’ (EIDHR) programmes.

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

First, the applicant contends that, by not providing the access to the requested documents, the defendant acted in violation of Article 2 of Regulation No 1049/2001.

Second, the applicant argues that by refusing full access to the requested documents the defendant acted in violation of Article 4 of Regulation No 1049/2001 as his request does not fall within the scope of any of the exceptions provided for in this article. Further, the applicant submits that, even if the exceptions would be applicable to his request, quod non, the right to access by the civil society organisations to the requested documents should be considered as constituting ‘overriding public interest in disclosure’.

Third, the applicant claims that by taking almost six months to respond to his confirmatory application despite the fact that Regulation No 1049/2001 required providing a response within 15 working days from the request, the defendant acted in violation of Article 7 of Regulation No 1049/2001.

Fourth, the applicant contends that the defendant failed to carry out an examination of the request ‘promptly’ and therefore acted in violation of Article 8 of Regulation 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
EN Official Journal of the European Union C 80/33

Action brought on 8 January 2010 — Commission v Earthscan

(Case T-5/10)

2010/C 80/55

Language of the case: English

Parties

Applicant: European Commission (represented by: A.-M. Rouchaud-Joët, S. Petrova, Agents, assisted by P. Hermant and G. van de Walle de Ghelcke, lawyers)

Defendant: Earthscan Ltd (Kent, United Kingdom)

Form of order sought

— order the defendant to repay the Commission the amount of EUR 44 903,22, corresponding to a principal amount of EUR 45 835,44 of which EUR 6 486,09 was already paid and interests until 30 September 2009 of EUR 5 556,87;

— order the defendant to pay interests of EUR 3,84 per day from 1 October 2009 on until the entirety of the debt is paid;

— order that the defendant pay the cost incurred by the Commission.

Pleas in law and main arguments

By the present action, based on an arbitration clause, the applicant requests that the defendant be ordered to repay part of the advance paid by the applicant, together with default interests, as a result of the non-performance of contract No 4.1030/Z/01-035/2001, concluded between the applicant and nine contractors including the defendant, for the development, the publication and the dissemination of a guide on renewable energy (project ‘Guide for Renewable Energy installations to promote biomass, photovoltaics and solar thermal in the EU’) in the framework of the ALTENER programme (1).

The applicant raises a single plea in law.

Given that the defendant did not carry out the performance of the contract for phases 6 and 7 (layout, typesetting, printing and dissemination), the applicant contends that the defendant breached its contractual obligations by failing to reimburse its share of the pre-financing that was overpaid in application of the contract. It claims that the defendant must therefore be condemned to repay the overpaid amount, accrued with the default interests as calculated in the contract.

(1) Decision No 646/2000/EC of the European Parliament and of the Council of 28 February 2000 adopting a multiannual programme for the promotion of renewable energy sources in the Community (Altener) (1998 to 2002), OJ L 79, p. 1
EN Official Journal of the European Union C 100/56

Action brought on 5 February 2010 — The Footwear Co. Ltd v OHIM — Reno Schuhcentrum (swiss cross FOOTWEAR)

(Case T-49/10)

2010/C 100/82

Language in which the application was lodged: German

Parties

Applicant: The Footwear Co. Ltd (Chai Wan, Hong Kong, China) (represented by: G. Griss and C. Loidl, 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: Reno Schuhcentrum GmbH (Thaleischweiler-Fröschen, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 December 2009 in Case R 1705/2008-4;

— Reject definitively and in its entirety the opposition to registration of the mark applied for in respect of goods in Classes 25 and 28;

— Order the Office for Harmonisation in the Internal Market to grant registration of the mark applied for;

— Order the Office for Harmonisation in the Internal Market to pay the costs, including those incurred in the opposition proceedings and before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The Footwear Co. Ltd

Community trade mark concerned: the word mark ‘swiss cross FOOTWEAR’ for goods in Classes 25 and 28 (Registration No 4 686 549)

Proprietor of the mark or sign cited in the opposition proceedings: Reno Schuhcentrum GmbH

Mark or sign cited in opposition: the German word mark ‘criss cross’ No 30 229 875 for goods in Classes 14, 18, 25 and 28

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the Community trade mark application

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 113/70

Action brought on 1 March 2010 — BASF v Commission

(Case T-105/10)

2010/C 113/104

Language of the case: English

Parties

Applicant: BASF SE (Ludwigshafen am Rhein, Germany) (represented by: F. Montag, J. Blockx and T. Wilson, lawyers)

Defendant: European Commission

Form of order sought

— annul the contested decision;

— order the Commission in the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009)10568 of 18 December 2009 in Case No. COMP/M.5355 — BASF/Ciba rejecting the proposal of 6 November 2009 to approve Roquette Frères as purchaser of Divestment Business SDA and rejecting the request to modify the commitments subject to which the Commission declared, by its decision C(2009) 1961 of 12 March 2009, the operation by which the applicant acquires control of the whole CIBA Holding AG (‘Ciba’) compatible with the common market.

The applicant puts forward the following pleas in law in support of its application for annulment.

It claims, in the first place, that by rejecting the proposed purchaser the defendant violated Article 6(2) of the Regulation No 139/2004 (1), paragraphs 418 and 419 of the decision approving BASF’s acquisition of Ciba, clause 4(a)(b), 13, 14 and 34 and Schedule B of the commitments attached thereto and paragraphs 31, 48, 73 and 102 of the remedies notice (2).

In particular, the applicant argues that the defendant has based its rejection of the proposed purchaser on inaccurate facts and has committed a manifest error of assessment with regard to the incentive for Roquette Frères to maintain and develop the Divestment Business. Furthermore, the applicant argues that the defendant has relied on inaccurate facts and committed a manifest error of assessment with regard to the applicant’s request to modify the commitments according to the review clause of the commitments.

Secondly, the applicant claims that the contested decision breaches the principle of proportionality since, in the applicant’s opinion, the rejection of its proposal was not necessary to achieve the purpose of the commitments to avoid the creation or strengthening of a dominant position.

Thirdly, the applicant claims that the defendant violated the principle of sound administration and Article 296 TFEU by failing to hear the applicant before taking the contested decision and by failing to state adequate reasons for the contested decision.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ 2004 L 24, p. 1

(2) Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, OJ 2004 L 133, p. 1