ddrg/super_eurlex huggingface dataset:
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there is no document in the file which enables the CST to take the view that the appellant lacked diligence in not having her post forwarded during her end-of-year holidays, during which period the post official came to her home to deliver to her the registered letter from the Parliament with its response to her claim;
1.

First plea in law, alleging the Commission applied a legally flawed concept, the concept of so-called ‘direct EEA sales through transformed products’, in determining the relevant value of sales for the calculation of the fine. In calculating the relevant value of sales of the applicant for the purpose of the determination of the fine, the Commission counted the value of LCD panels incorporated in finished IT or TV products sold by the applicant in the EEA. The applicant submits that this concept of ‘direct EEA sales through transformed products’ is legally unsound and cannot be used for the determination of the relevant value of sales. The applicant submits that the concept relies on sales of products to which the infringement does not directly or indirectly relate and artificially shifts the location of relevant intra-group sales of LCD panels from outside the EEA to within the EEA and vice versa depending upon the location of sale of the finished products into which such LCD panels are incorporated. As such, the applicant submits that the concept is inconsistent with the past case-law of the EU courts dealing, among others, with the treatment of intra-group sales for the calculation of the fine. Finally, the applicant submits that the concept as applied by the Commission in the decision leads to discrimination between the addressees of the decision illegally based on the mere form of their respective corporate structures.
2.

Second plea in law alleging a manifest error of assessment, in so far as the applicant, being part of the administration, does not have, in view of his duties, power to recognise the authority of a specific president, but must perform his duties in the continuation of the administration to which he belongs.
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declare that, concerning the applicant, Mr Gogo Joachim ROBE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,
EN Official Journal of the European Union C 139/25

Action brought on 14 March 2011 — Zenato Azienda Vitivinicola v OHIM — Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (Ripassa Zenato)

(Case T-154/11)

2011/C 139/47

Language in which the application was lodged: Italian

Parties

Applicant: Zenato Azienda Vitivinicola Srl (Peschiera del Garda, Italy) (represented by: A. Rizzoli, 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: Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (Verona, Italy)

Form of order sought

The applicant claims that the Court should:

— declare the present action, together with the related annexes, admissible;

— annul the decision of the Board of Appeal (points 1, 2 and 3 of the operative part) in so far as it upholds the appeal, upholds the opposition and rejects in its entirety the application for registration, and orders the applicant to pay the costs incurred by the opposing party in the opposition and appeal proceedings;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark containing the word element ‘RIPASSA ZENATO’ (registration application No 5 877 865), for goods in Class 33

Proprietor of the mark or sign cited in the opposition proceedings: Camera di Commercio, Industria, Artigianato e Agricoltura di Verona

Mark or sign cited in opposition: Italian word mark “RIPASSO” (No 682 213), for goods in Class 33

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: To uphold the opposition and to reject in its entirety the application for registration

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/09.
EN Official Journal of the European Union C 139/22

Action brought on 18 February 2011 — ASA v OHIM — Merck (FEMIFERAL)

(Case T-110/11)

2011/C 139/42

Language in which the application was lodged: Polish

Parties

Applicant: ASA Sp. z o.o. (Głubczyce, Poland) (represented by: M. Chimiak, 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: Merck Sp. z o.o. (Warsaw, Poland)

Form of order sought

— set aside in its entirety the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case No R 0182/2010-1;

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

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘FEMIFERAL’ for goods in Class 5 — Application No 5320701

Proprietor of the mark or sign cited in the opposition proceedings: Merck Sp. z o.o.

Mark or sign cited in opposition: the national word mark ‘Feminatal’ and the national figurative mark containing the word element ‘feminatal’ for goods in Class 5.

Decision of the Opposition Division: dismissal of the opposition.

Decision of the Board of Appeal: invalidation of the decision of the Opposition Division and dismissal of the application for the trade mark in its entirety.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009 (1) by reason of the erroneous finding that the trade marks ‘Feminatal’ and ‘FEMIFERAL’ are similar to one another in a manner which is likely to mislead Polish consumers as to the origin of the goods, by reason of the misappraisal of the distinctive character of the prefix ‘femi’ and lack of regard for characteristics specific to Polish consumers and also the principles of the Polish language, as also by reason of the defective assessment of the similarity of the marks in all three aspects: visual, phonetic and conceptual.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 145/28

Action brought on 17 February 2011 — MSE Pharmazeutika v OHIM — Merck Sharp & Dohme (SINAMIT)

(Case T-100/11)

2011/C 145/48

Language in which the application was lodged: English

Parties

Applicant: MSE Pharmazeutika GmbH (Bad Homburg, Germany) (represented by: T. Büttner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck Sharp & Dohme Corp. (New Jersey, USA)

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 9 December 2010 in case R 724/2010-1;

— Annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 March 2010, which upheld opposition No B 1441684.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SINAMIT’, for goods in classes 3, 5 and 32 — Community trade mark application No 951596

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Austrian trade mark registration No 57446 of the word mark ‘SINEMET’, for goods in class 5; Benelux trade mark registration No 320194 of the word mark ‘SINEMET’, for goods in class 5; Danish trade mark registration No VR197302373 of the word mark ‘SINEMET’, for goods in class 5; Finish trade mark registration No 49091 of the word mark ‘SINEMET’, for goods in class 5; Greek trade mark registration No 34959 of the word mark SINEMET, for goods in class 5; Hungarian trade mark registration No 116223 of the word mark ‘SINEMET’, for goods in class 5; Latvian trade mark registration No M18257 of the word mark ‘SINEMET’, for goods in class 5; Lithuanian trade mark registration No 12963 of the word mark ‘SINEMET’, for goods in class 5

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was likelihood of confusion between the conflicting marks, assuming a high similarity of the marks on the one side and an identity and similarity of the goods covered by the trademarks on the other side.
EN Official Journal of the European Union C 145/31

Action brought on 11 March 2011 — GS v Parliament and Council

(Case T-149/11)

2011/C 145/52

Language of the case: German

Parties

Applicant: GS Gesellschaft für Umwelt- und Energie-Serviceleistungen mbH (Eigeltingen, Germany) (represented by: J. Schmidt, lawyer)

Defendant: European Parliament and Council of the European Union

Form of order sought

— Annul the second sentence of Article 8(2) of Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation;

— Order the defendants to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that the contested regulation infringes Articles 15 and 16 of the Charter of Fundamental Rights of the European Union — The applicant submits in that regard that Article 8(2) of Regulation (EU) No 1210/2010 (1) infringes its freedom to exercise its professional activities and its commercial freedom, since it suffered a decline in turnover after the entry into force of the contested regulation.

2. Second plea in law, alleging that the contested regulation infringes Article 17 of the Charter of Fundamental Rights of the European Union — The applicant submits that Article 8(2) of Regulation No 1210/2010 also infringes its right of ownership, since that rule restricts the exercise of its right in the established and operating business. — Further, the contested regulation makes possible a direct infringement of the applicant’s property rights, since the euro coins in its possession are being withdrawn without compensation.

3. Third plea in law, alleging the unsuitability of the contested regulation for the achievement of the aim pursued and the disproportionality of the contested regulation — In that regard, the applicant submits that the freedom to exercise professional activities, commercial freedom and property rights can be subject to restrictions, in so far as they pursue aims in the general interest and do not represent a disproportionate infringement in relation to the aim pursued. The applicant states that the contested regulation is superfluous, unsuitable to achieve the legislature’s aim and not capable of justifying infringement of the applicant’s fundamental rights.

(1) Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation (OJ 2010 L 339, p. 1).
EN Official Journal of the European Union C 152/31

Appeal brought on 12 April 2011 by the College of staff representatives of the European Investment Bank and Others against the order of the President of the Second Chamber of the Civil Service Tribunal of 17 March 2011 in Case F-95/10 Bömcke v EIB

(Case T-213/11 P(I))

2011/C 152/57

Language of the case: French

Parties

Appellant: College of staff representatives of the European Investment Bank (Luxembourg, Luxembourg), Marie-Christel Heger (Luxembourg), Jean-Pierre Bodson (Luxembourg), Evangelos Kourgias (Senningerberg, Luxembourg), Manuel Sutil (Nondkeil, France) and Patrick Vanhoudt (Gonderange, Luxembourg) (represented by: G. J. Wilson, A. Senes and B. Entringer, lawyers)

Other party to the proceedings: Eberhard Bömcke (Athus, Belgium) and the European Investment Bank

Forms of order sought by the appellant

The applicants claim that the Court should:

— amend the order the order of 17 March 2011 of the President of the Second Chamber of the Civil Service Tribunal;

— declare admissible and well founded the application to intervene submitted on 12 January 2011 to the President and other members of the Civil Service Tribunal and declare the applicant a party to the dispute between Eberhard BÖMCKE and the European Investment Bank, in light of the direct interest of the applicant to be a party thereto, pursuant to Articles 109 ff. of the Rules of Procedure of the European Union Civil Service Tribunal.

Pleas in law and main arguments

By order of 17 March 2011, the President of the Second Chamber of the Civil Service Tribunal dismissed as inadmissible, on the grounds that it was out of time, the application to intervene made in Case F-95/10 Bömcke v EIB, by the College of staff representatives of the European Investment Bank and Ms Heger, Mr Bodson, Mr Kourgias, Mr Sutil and Mr Vanhoudt.

In support of the appeal, the appellant relies on three pleas in law.

1. First plea in law, alleging an error in the calculation of the time-limit for the submission of the application for leave to appeal, since the time-limit of four weeks provided for in Article 109 of the Rules of Procedure of the Civil Service Tribunal and the extension on account of distance by a single period of 10 days under Article 100(3) of the Rules should be regarded as separate and independent time-limits, so that the postponement of the deadline, pursuant to Article 100(2) of the Rules, until the end of the first following working day, if the period would otherwise end on a Saturday, Sunday or official holiday, must apply to the deadline of four weeks before adding the extension on account of distance and does not apply to the whole time-limit including the extension on account of distance.

2. Second plea in law, alleging wrongful application of the order in Case T-85/97 Horeca-Wallonie v Commission [1997] ECR II-2113, paragraphs 25 and 26, since that order deals with a different situation to that at issue in the present case.
EN Official Journal of the European Union C 194/16

Action brought on 15 April 2011 — Otero González v OHIM — Apli-Agipa (AGIPA)

(Case T-219/11)

2011/C 194/25

Language in which the application was lodged: Spanish

Parties

Applicant: José Luis Otero González (Barcelona, Spain) (represented by: S. Correa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apli-Agipa SAS (Dormans, France)

Form of order sought

The applicant requests the Court to:

— annul the resolution of the Second Board of Appeal of 14 February 2011 in Case R 0556/2010-2, in relation to the partial granting of the application for the following goods: ‘photographs, adhesives (glues) for stationery or household purposes, paint brushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging (not included in other classes), printers’ type, printing blocks’.

— refuse Community trade mark application No 5 676 721‘AGIPA’ in respect of all the goods granted in Class 16;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: APLI-AGIPA S.A.S.

Community trade mark concerned: Word mark ‘AGIPA’ (registration application No 5 676 721) for goods in Class 16.

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

Mark or sign cited in opposition: Spanish word mark ‘AGIPA’ (No 2 216 879) and Spanish figurative mark that contains the word element ‘a — agipa’ (No 1 269 511), both for goods in Class 16.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal upheld in part.

Pleas in law: Incorrect application and interpretation of Article 8(1)(b) of Regulation No 207/2009.
2.

Second plea in law: failure to apply the 1999 Guidelines for State aid for rescue and restructuring in the classification of the undertaking as an undertaking in difficulty and examination of the value of the ‘binding comfort letter’;
EN Official Journal of the European Union C 211/26

Appeal on 26 April 2011 by Florence Barbin against the judgment of 15 February 2011 by the Civil Service Tribunal in Case F-68/09 Barbin v Parliament

(Case T-228/11 P)

2011/C 211/56

Language of the case: French

Parties

Appellant: Florence Barbin (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, and D. Abreu Caldas, lawyers)

Other party to the proceedings: European Parliament

Forms of order sought

The appellant claims that the Court should:

— annul the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-68/09 Barbin v Parliament, dismissing the action by the appellant;

— annul the decision of 10 November 2008 not to promote the appellant to Grade AD12 in the 2006 promotions year;

— order the European Parliament to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-68/09 Barbin v Parliament, in which the Civil Service Tribunal dismissed her action for the annulment of the European Parliament’s decision of 10 November 2008 not to promote her to Grade AD12 in the promotion year 2006.

In support of her appeal, the appellant makes two pleas in law, claiming:

— error of law in that the Civil Service Tribunal wrongly took the view that the Parliament did not make a manifest error of assessment in deciding, first, that the latter was not required to comply with the internal rules on staff reports and promotions, and, second, that it could lawfully promote officials having fewer merit points than the appellant on the strength of grounds not taking account of the system for comparing the respective merits of officials eligible for promotion such as that established by the decisions of the Bureau and the Secretary General of the European Parliament;
EN Official Journal of the European Union C 204/27

Action brought on 4 May 2011 — L'Oréal v OHIM — United Global Media Group (MyBeauty)

(Case T-240/11)

2011/C 204/48

Language in which the application was lodged: English

Parties

Applicant: L'Oréal (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

Other party to the proceedings before the Board of Appeal: United Global Media Group, Inc. (El Segundo, U.S.A.)

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 3 February 2011 in case R 898/2010-1;

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

— Alternatively order the other party to the proceedings before the Board of Appeal should it become an intervener before the General Court, to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘MyBeauty TV’, for goods in classes 3, 35 and 41 — Community trade mark application No 6406755

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Grounds for the opposition: The other party to the proceedings based its opposition on Article 8(4) CTMR, by claiming to be the proprietor of a number of earlier unregistered marks which were similar to the applicant’s mark.

Decision of the Opposition Division: Rejected the opposition. Regarding the costs, the Opposition Division noted that the opponent, as losing party, would normally have to bear the costs incurred by the applicant’s representation, but as the latter did not appoint a representative within the meaning of Article 93 CTMR, it did not incur such costs.

Decision of the Board of Appeal: Dismissed the appeal and ordered the applicant to bear the costs of the opponent.

Pleas in law: The applicant claims that the contested decision must be annulled because it violates Article 85(1) of Council Regulation No 207/2009. According to that provision, the losing party in an opposition provision must pay the costs incurred by the prevailing party essential to the proceedings. Article 85(1) of CTMR does not limit that obligation to the costs incurred by instructing a professional representative within the meaning of Article 93(1) of CTMR. Rule 94 of CTMIR also does not contain a provision to the effect that only the costs of professional representation may be recovered. Rather, Rule 94 CTMIR merely places a ‘cap’ on the costs recoverable in case a professional representative was acting on behalf of the prevailing party. To the extent that Rule 94 of CTMIR is to be interpreted as precluding any recovery of costs in case like the present one, this rule would be in plain contradiction to Article 85(1) of CTMR and thus void or inapplicable.
2.

Second ground of appeal: Infringement of European Union law in the legally erroneous determination of the scope and legal effect of the second paragraph of Article 1(e) of the Staff Regulations: Secondly, the Tribunal infringed European Union law and failed to state sufficient reasons in its erroneous interpretation of the scope of the second paragraph of Article 1(e) of the Staff Regulations as imposing a comprehensive duty on the institutions to guarantee as a minimum to officials, with reference to all working conditions relating to health protection, the standards in Directives adopted pursuant to Article 153 TFEU. The objective however of the second paragraph of Article 1(e), which was introduced as part of the 2004 reform of the Staff Regulations, is merely to remedy a lacuna in respect of technical provisions lacking in the Staff Regulations for the safeguarding of the health and safety of the staff in the premises of the institutions (for example. fire protection, hazardous substances, ventilation, ergonomics, etc.). The Staff Regulations accordingly now allow the application of the technical minimum standards in the respective Directives transposed into national law. However, the provision cannot and should not affect working conditions in respect of carrying over leave and compensation for unused leave which are determined exclusively by the bodies enacting the Staff Regulations. In so far as the Tribunal so decided, the decision was contrary not only to the current provisions of the Staff Regulations and the Tribunals’ case-law, but also was in breach of the principle of legal certainty.
1.

First plea in law, alleging that Article 29 TEU is an erroneous and/or insufficient legal basis for Council Decision 2011/172/CFSP, as: — The aforementioned Decision does not pursue a foreign policy objective; — The adoption of such Decision (and of Council Regulation (EU) No 270/2011) constitutes an abuse of power; and — The inclusion of the applicant in the Annex to Council Decision 2011/172/CFSP (and the corresponding Regulation) was irrational.