ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 370/26

Action brought on 6 October 2011 — Alouminion v Commission

(Case T-542/11)

2011/C 370/44

Language of the case: Greek

Parties

Applicant: Alouminion A.E. (Marousi, Greece) (represented by: G. Dellis and N. Korogiannakis, lawyers)

Defendant: European Commission

Form of order sought

— annul Commission Decision C(2011) 4916 final of 13 July 2011 relating to State aid C 2/2010 (ex NN 62/2009) implemented by Greece in favour of Alouminion tis Ellados A.E.;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By this action, the applicant seeks, pursuant to the fourth paragraph of Article 263 of the Treaty on the Functioning of the European Union (‘TFEU’), the annulment, with the consequences laid down by the first paragraph of Article 266 TFEU, of Decision C(2011) 4916 final of the European Commission of 13 July 2011 under number C 2/2010 (ex NN 62/2009) concerning the grant of State aid to the company Alouminion tis Ellados.

In support of its claims, the applicant puts forward the following grounds for annulment:

— Infringement of Article 1 of Regulation No 659/1999, and infringement of the rules concerning the allocation of competence between the Commission and the national courts and the right to judicial protection. The Commission clearly erred in its assessment of the facts, took account of factors that were clearly erroneous and made clear errors of law in classifying the supposed aid as ‘new’. The measure at issue was adopted under precisely the same regime as the supposed existing aid and the reasoning given for the Commission’s view is defective;

— Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding there to be an advantage, did not apply the private investor test and did not examine whether there are objective commercial grounds justifying the contractual tariff of 1960;

— Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that the aid is selective, notwithstanding the obligation of the DEI (Dimosia Epikhirisi Ilektrismou (Public Power Corporation)) to set in a similar manner the tariffs of similar categories of undertakings and in a different manner those of different categories to the extent that they are different;

— Infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that trade between Member States is distorted and affected, although the applicant does not obtain any advantage compared with the other aluminium undertakings because of the uniformity of aluminium’s characteristics and because of the exchange-set price;

— Incorrect methodology in calculating the amount of the supposed advantage;

— Infringement of the duty to state reasons;
Official Journal of the European Union

Action brought on 14 November 2011 — S & S Szlegiel Szlegiel i Wiśniewski v OHIM — Scotch & Soda (SODA)

(Case T-590/11)

(2012/C 25/117)

Language in which the application was lodged: English

Parties

Applicant: S & S Piotr Szlegiel Jacek Szlegiel i Robert Wiśniewski sp. j. (Gorzów Wielkopolski, Republic of Poland) (represented by: R. Sikorski, adwokat)

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

Other party to the proceedings before the Board of Appeal: Scotch & Soda BV (Hoofddorp, Netherlands)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 August 2011 in case R 1570/2010-2;

— Reject in its entirety the opposition No B1438250;

— Order the defendant to register the trade mark applied for; and

— 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 ‘SODA’, for goods in class 25 — Community trade mark application No 6970875

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: Community trade mark registration No 3593498 of the word mark ‘SCOTCH & SODA’, for goods in class 25

Decision of the Opposition Division: Rejected the Community trade mark application in its entirety

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 failed: (i) to appreciate that there were sufficient visual, aural and conceptual differences between the marks, particularly with respect to its analysis of the conceptual meanings of the marks; (ii) to properly circumscribe and analyse the dominant element of the contested signs; and (iii) to properly take into consideration the level of attention of the average consumer of the category of goods concerned.
1.

First plea in law, alleging infringement of the TFEU Treaty or the EC Treaty or of a rule of law which has to be applied when it is implemented In the first plea the applicants submit that the Commission did not comply with the rules in the Multisectoral framework on regional aid for large investment projects (OJ 1998 C 107, p. 7) (‘the Multisectoral framework’) in that it — did not determine a maximum allowable aid intensity as required, in the applicants’ opinion, by point 3.1 of the Multisectoral framework; — established the annual growth rates for chipboards in accordance with point 7.8 of the Multisectoral framework on the basis of incorrect periods and thus arrived at an excessively high competition factor; — combined different competition factors in respect of the same project and therefore departed from the legal framework of point 3.10 of the Multisectoral framework.
Official Journal of the European Union

Action brought on 8 November 2011 — McNeil v OHIM — Alkalon (NICORONO)

(Case T-580/11)

(2012/C 25/111)

Language in which the application was lodged: English

Parties

Applicant: McNeil AB (Helsingborg, Sweden) (represented by: I. Starr, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Alkalon ApS (Copenhagen V, Denmark)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2011 in case R 1582/2010-2;

— Order the defendant to pay to the applicant its costs of and occasioned by this appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘NICORONO’, for goods in classes 5, 10 and 30 — Community trade mark application No 6654529

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

Mark or sign cited in opposition: Community trade mark registration No 2190239 of the word mark ‘NICORETTE’, for goods in classes 5, 10 and 30

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Articles 75, 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal has failed to give sufficient weight in the overall assessment to: (i) the identity of the goods concerned and the fact that this offsets a lesser degree of similarity between the marks to be compared; (ii) the fact that consumers normally perceive word marks as a whole and pay particular attention to the beginning of a mark; and (iii) the fact that the applicant’s mark ‘NICORETTE’ has enhanced distinctiveness and an extensive reputation through significant use.
Action brought on 30 November 2011 — Henkel and Henkel France v Commission

(Case T-607/11)

(2012/C 25/123)

Language of the case: English

Parties

Applicants: Henkel AG & Co. KGaA (Düsseldorf, Germany), Henkel France (Boulogne-Billancourt, France) (represented by: R. Polley, T. Kuhn, F. Brunet and E. Paroche, lawyers)

Defendant: European Commission

Form of order sought

— annul the Commission’s decision of 30 September 2011 not to transfer fifteen documents produced in the Case COMP/39.579 (consumer detergents) to the French Competition Authority;

— order that the Commission allows the applicants to rely on the requested documents in the ongoing proceedings before the Authority;

— order the Commission to pay the applicants’ legal and other costs and expenses incurred in relation to the present application; and

— take any other measures that the General Court considers appropriate.

Pleas in law and main arguments

The action contains one plea. According to this single plea, the Commission unlawfully dismissed the French Competition Authority’s request to transfer the requested fifteen documents and thereby infringed its duties under Article 4(3) of the Treaty on European Union and the applicants’ fundamental rights of defense and the principle of equality of arms.
Second plea in law, alleging that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is a general measure

In that regard the applicant submits inter alia that the technical differentiation on the basis of an undertaking’s economic position and ability to pay is a technical provision which, as a general measure, cannot come within the scope of Article 107(1) TFEU. In the applicant’s opinion such a provision, in the context of an overall economic assessment, is capable of benefiting all undertakings even if, at a particular point in time, only some undertakings are in fact in a position to actually use the provision.
EN Official Journal of the European Union C 32/39

Action brought on 6 December 2011 — Caventa v OHIM — Anson’s Herrenhaus (B BERG)

(Case T-631/11)

2012/C 32/78

Language in which the application was lodged: German

Parties

Applicant: Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

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) (OHIM) of 15 September 2011 in Case R 2014/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Figurative mark containing the word element ‘B BERG’ for goods in Classes 25 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld and registration refused.

Pleas in law: There is no similarity between the goods at issue and no likelihood of confusion of the signs at issue.
2.

Incorrect findings of fact by the Civil Service Tribunal and contradictory interpretation of the evidence with regard to the grading of the appellant and, to that extent, infringement of the obligation to state the reasons on which a decision is based.
EN Official Journal of the European Union C 39/15

Appeal brought on 22 November 2011 by Christos Michail against the judgment of the Civil Service Tribunal of 13 September 2011 in Case F-100/09 Michail v Commission

(Case T-597/11 P)

2012/C 39/32

Language of the case: Greek

Parties

Appellant: Christos Michails (Brussels, Belgium) (represented by C. Meidani, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the General Court should:

— hold the appeal to be admissible and well founded;

— set aside the decision of the Civil Service Tribunal of 13 September 2011 in Case F-100/09 Michail v Commission;

— order payment to the applicant of damages for the non-material damage suffered by him, amounting to EUR 30 000;

— make an order as to costs as laid down by law.

Pleas in law and main arguments

The appellant claims that the judgment under appeal erred in its ruling on his application, by which he sought the annulment of the Commission’s refusal of the request made by him for assistance under Article 24 of the Staff Regulations and of the Commission’s rejection dated 14.9.2009 of his complaint made under Article 90(2) of the Staff Regulations.

In particular, the appellant claims an infringement of his procedural rights and an infringement of Community law since, first, the Civil Service Tribunal (‘the Tribunal’), erring in its assessment of the evidence, erred by entirely failing to examine whether evidence had been unlawfully taken into account when the Commission proceeded to change his employment status without adopting the administrative act necessary for that change. Second, the appellant claims that the Tribunal did not observe the principles which govern the taking of evidence and the burden of proof since notwithstanding the fact that the appellant produced the document which proved his unlawful transfer, the Tribunal did not request, as required under Article 55 of the Tribunal’s Rules of Procedure, from the Commission at any stage of the proceedings the production of evidence which would refute the above position. Third, the appellant claims that the Tribunal did not examine the reality of his employment status as that is revealed in the Sysper and Sysper 2 systems and on what legal basis the representation of him to be found there was supported in order to rule on whether that constitutes psychological harassment of him and falsification of evidence
EN Official Journal of the European Union C 58/15

Action brought on 28 December 2011 — Veloss and Attimedia v Parliament

(Case T-667/11)

2012/C 58/28

Language of the case: English

Parties

Applicants: Veloss International SA (Brussels, Belgium) and Attimedia SA (Brussels) (represented by: N. Korogiannakis, lawyer)

Defendant: European Parliament

Form of order sought

— Annul the decision of the European Parliament to select the bid of the applicants filed in response to the open call for tenders no EL/2011/EU ‘Translation into Greek’ (1), as second on the list of successful tenders, communicated to the applicants by letter dated 18 October 2011 and all related decisions taken subsequently by the defendant, including the one to award the respective contract to the first successful tender;

— Order the European Parliament to pay damages to the applicants for loss of opportunity and reputational damage in the amount of 10 000 EUR (euros);

— Order the European Parliament to pay legal and other costs and expenses incurred in connection with the present application, even if it is dismissed by the General Court.

Pleas in law and main arguments

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

1. First plea in law, alleging — that the evaluation committee systematically mixed the selection and award criteria and various phases of the tendering procedure;

2. Second plea in law, alleging — that the European Parliament infringed Article 100 (2) of the Financial Regulation (2) by not disclosing to the applicants the financial offer of the successful tender, in spite of their written request;

3. Third plea in law, alleging — various shortcomings of the evaluation method applied by the evaluation committee and further, contesting composition of the latter, lack of effectiveness on its part;

4. Fourth plea in law, alleging — vagueness and unsuitability of the selection and award criteria and taking into account the criteria which have not been notified to the tenderers;

5. Fifth plea in law, alleging — that the evaluation committee failed to request the proof of the educational profile and the translation experience of the tenderers’ staff.

(1) OJ 2011/S 56-090374

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25.6.2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p. 1)
1.

First plea in law, alleging an insufficient statement of reasons and infringement of the rights of defence, on the ground that the contested measures do not allow the applicant to challenge their validity before the Court and the Court to exercise its power of review of their lawfulness.
Failure to adhere to the order of assessment in Regulation (EC) No 1049/2001 (1)

The applicants submit that the defendant failed to fulfil its assessment obligation under Article 4(4) of Regulation No 1049/2001 and to adhere to the mandatory order of assessment provided for by that regulation.
EN Official Journal of the European Union C 165/21

Action brought on 8 March 2012 — Bode Chemie v OHIM — Laros (sterilina)

(Case T-114/12)

2012/C 165/36

Language in which the application was lodged: French

Parties

Applicant: Bode Chemie GmbH (Hamburg, Germany) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal: Laros Srl (Cremona, Italy)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 January 2012 in Case R 2423/2010-4; and

— order the defendant to pay the costs, including the costs of the appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party before the Board of Appeal.

Community trade mark concerned: Figurative mark consisting of the word elements ‘sterilina’, in the colours white and red for goods in Classes 3 and 5 — Community trade mark applied for No 8120032.

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

Mark or sign cited in opposition: Community trade mark ‘STERILLIUM’ No 221168 for goods in Class 5; Figurative Community mark in the colours blue and white ‘BODE Sterillium’ No 6262257 for goods in Class 5.

Decision of the Opposition Division: Rejection of the opposition in its entirety.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 2007/2009, in that contrary to the opinion of the Board of Appeal, a global assessment of the relevant criteria in respect of the identity and/or similarity between the goods, of the similarity between the signs and the distinctive character of the opposing mark leads to a determination of a likelihood of confusion for the public.
—

that by failing to grant the adjustment for currency conversion which the applicants claimed for sales made in Euro between January and June 2010, in view of the fact that there had been a sustained appreciation of the Indian Rupee against the Euro during an important part of the investigation period, the Council violated Article 2(10) (and, in particular, paragraph (j) thereof) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1), as interpreted in accordance with Articles 2.4 and 2.4.1 of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994;
—

that the Council violated first paragraph of Article 2(10) of the basic Regulation, since: (a) it did not carry out a fair comparison between the export price and the normal value. It did not sufficiently demonstrate the differences in factors affecting prices and price comparability. By contrast with existing case law, it did not establish asymmetry between the normal value and the export price, in the absence of adjustment for commissions paid. The Council ignored the information and evidence provided in the applicant’s Questionnaire Response and during its verification visits, which established that ICOF S also handles domestic sales. It failed to sufficiently indicate the reasons why it did not take that information and evidence into account. In doing so, the Council committed a manifest error in the assessment of facts and a misuse of powers. It did not sufficiently motivate the need for an adjustment and the latter is discriminatory towards the applicant, (b) the Council did not avoid duplication in the deduction of profits from the export price. The Council deducted a first hypothetical margin of 5 % for ICOF E’s profits, in application of Article 2(9) of the basic Regulation and a second hypothetical margin of 5 % for ICOF S’ profits, thereby deducting an unreasonable total hypothetical margin of 10 % for an intra-group sales operation. This is obviously contrary to the facts and the practice for this type of business operations. The Commission, as investigative authority, should have known this. The Council therefore committed a manifest error in the assessment of facts regarding the intra-group profits and it made a wrong, discriminatory and unreasonable application of Article 2(10) of the basic Regulation.
EN Official Journal of the European Union C 73/30

Action brought on 25 January 2012 — Advance Magazine Publishers v OHIM — López Cabré (TEEN VOGUE)

(Case T-37/12)

2012/C 73/59

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: T. Alkin, Barrister)

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

Other party to the proceedings before the Board of Appeal: Eduardo López Cabré (Barcelona, Spain)

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 22 November 2011 in case R 1763/2010-4, insofar as it relates to the opposition based on the earlier mark; and

— Order the opponent to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TEEN VOGUE’, for among others goods in class 18 — Community trade mark application No 5265517

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: Spanish trade mark registration No 496371 of the word mark ‘VOGUE’, for goods in class 18; Spanish trade mark registration No 2153619 of the figurative mark ‘VOGUE moda en lluvia’, for goods in class 18; Community trade mark registration No 2082287 of the word mark ‘VOGUE’, for goods in class 18

Decision of the Opposition Division: Partially rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 43(2) of Council Regulation No 207/2009 and/or of Rule 22(3) of Commission Regulation (EC) No 2868/95, as well as infringement of Article 8(1)(b) Council Regulation No 207/2009, as the Board of Appeal erred in law in finding that the opponent’s evidence ‘taken as a whole’ was sufficient to prove use of the earlier mark, and as the Board of Appeal erred in finding that there was likelihood of confusion between the applicant’s mark and the opposed mark.