ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 46/21

Action brought on 18 December 2012 — Teva Pharma and Teva Pharmaceuticals Europe v EMA

(Case T-547/12)

2013/C 46/38

Language of the case: English

Parties

Applicants: Teva Pharma BV (Utrecht, Netherlands); and Teva Pharmaceuticals Europe BV (Utrecht) (represented by: K. Bacon and D. Piccinin, Barristers, G. Morgan and C. Drew, Solicitors)

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the Court should:

— Annul the decision of the European Medicines Agency, contained in its letter of 26 November 2012, refusing to validate the applicants’ application for a marketing authorisation for its generic version of abacavir/lamivudine; and

— Order the European Medicines Agency to pay the applicants’ costs.

Pleas in law and main arguments

In support of the action, the applicants rely on one plea in law, alleging that the refusal to validate their application for the authorisation of a generic version of a fixed dose combination medicinal product, on the basis that the product was protected by a ten year period of exclusivity is contrary to Regulation (EC) No 726/2004 (1) and Directive No 2001/83/EC (2) properly interpreted. In particular, the applicants contend that the marketing authorisation holder for the product is not entitled to enjoy a ten year period of data exclusivity, as the product is a fixed dose combination combining two active substances which have been supplied and used within the EU as components of a number of different medicinal products for some years. The applicants therefore contend that the product falls within the same global marketing authorisation as the earlier marketing authorisations for its component parts within the meaning of the second sub-paragraph of Article 6(1) of Directive No 2001/83. Accordingly, the applicants state that it did not enjoy any further period of data exclusivity after the expiry of the data exclusivity relating to these authorisations.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (Text with EEA relevance)

(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use
EN Official Journal of the European Union C 55/18

Action brought on 14 December 2012 — Pensa Pharma v OHIM — Ferring and Farmaceutisk Lab Ferring (PENSA PHARMA)

(Case T-544/12)

2013/C 55/32

Language in which the application was lodged: English

Parties

Applicant: Pensa Pharma, SA (Valencia, Spain) (represented by: M. Esteve Sanz and M. González Gordon, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Ferring BV (Hoofddorp, Netherlands) and Farmaceutisk Lab Ferring A/S (Vanlose, Denmark)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2012 in case R 1883/2011-5; and

— Order the defendant and if the case might be, the interveners, to pay the costs of the proceedings and the costs of the appeal incurred within the OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘PENSA PHARMA’, for goods and services in classes 3, 5 and 44 — Community trade mark registration No 4954831

Proprietor of the Community trade mark: The applicant

Applicants for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The requests for a declaration of invalidity were based on the grounds laid down in Article 53(1)(a) in conjunction with Article 8(1)(b) and 8(5) and Article 53(2) of Council Regulation No 207/2009, and on the Benelux trade mark registration No 377513 of the word mark ‘PENTASA’, for goods in class 5

Decision of the Cancellation Division: Accepted the request for a declaration of invalidity against the CTM for all the contested goods and services

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

— Infringement of Article 53(3) of Council Regulation No 207/2009; and
EN Official Journal of the European Union C 63/24

Action brought on 30 December 2012 — Commission v Siemens

(Case T-579/12)

2013/C 63/50

Language of the case: German

Parties

Applicant: European Commission (represented by: R. Lyal and W. Mölls, acting as Agents)

Defendant: Siemens AG (Munich, Germany)

Form of order sought

The applicant claims that the Court should:

— Order Siemens AG to pay the applicant EUR 671 234 plus interest in the amount of 5 % above the base interest rate within the meaning of Paragraph 247 of the BGB (Bürgerliches Gesetzbuch, German Civil Code) as from the time when the action was brought;

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant submits that under the contract concluded with the defendant it is entitled to demand compensation for the additional costs arising out of the delay in taking back the materials which have been put at its disposal. Such compensation also has to be paid under the German law applicable to the contract, more precisely under Paragraph 304 and also Paragraphs 280 and 286 of the BGB.
2.

Second plea in law, alleging that the rejection of certain adjustments requested by the Applicant violates Article 2(10) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community and Article 2.4 of the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. In the alternative, the applicant considers that the Council violated Article 296 of the Treaty on the Functioning of the European Union.
EN Official Journal of the European Union C 86/18

Action brought on 4 January 2013 — Advance Magazine Publishers/OHIM — Montres Tudor (GLAMOUR)

(Case T-1/13)

2013/C 86/29

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: T. Raab, H. Lauf and V. Ahmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Montres Tudor SA (Geneva, Switzerland)

Form of order sought

The applicant claims that the Court should:

— Fully set aside the decision of the Second Board of Appeal of the Office for the Harmonization in the Internal Market (Trade Marks and Designs) of 10 October 2012, appeal no. R 0231/2012-2;

— award the costs of the proceedings against the defendant and the other party to the proceedings before the Board of Appeal of OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GLAMOUR’ Community trade mark application No 9 380 916

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: International registration with effect in the Community, ‘TUDOR GLAMOUR’ for goods in class 14

Decision of the Opposition Division: Upheld the opposition for all 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.
EN Official Journal of the European Union C 86/23

Action brought on 24 January 2013 — Türkiye Garanti Bankasi/OHIM — Card & Finance Consulting (bonus&more)

(Case T-33/13)

2013/C 86/37

Language in which the application was lodged: English

Parties

Applicant: Türkiye Garanti Bankasi AS (Istanbul, Turkey) (represented by: J. Güell Serra, lawyer)

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

Other party to the proceedings before the Board of Appeal: Card & Finance Consulting GmbH (Nürnberg, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision; and

— Order OHIM to pay the costs.

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 figurative mark ‘bonus&more’, for services in classes 35, 36, 38, 41 and 42 — Community trade mark application No 9 037 251

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

Mark or sign cited in opposition: The International Registration of the figurative mark ‘bonusnet’, for goods and services in classes 9, 35, 36, 38 and 42 — International Registration No 931 921

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Allows the appeal and rejects the opposition

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 71/26

Appeal brought on 17 January 2013 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 6 November 2012 in Case F-41/06 RENV Marcuccio v Commission

(Case T-20/13 P)

2013/C 71/40

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

The appellant requests the Court: (1a) to declare that there is no legal basis for the judgment delivered on 6 November 2012 by the Civil Service Tribunal of the European Union in Case F-41/06 RENV Marcuccio v Commission or (1b), in the alternative, to set aside the judgment in its entirety; and (2a), given that the state of the proceedings so permits: (2aa) grant all claims made by the appellant in the proceedings at first instance, including the claim that the EC (sic) be ordered to reimburse the appellant in respect of the costs incurred by him in the appeal proceedings; or (2b), in the alternative, refer the case back to the court at first instance for a fresh decision on each of the claims made by the appellant in the proceedings at first instance.

Pleas in law and main arguments

The present appeal is brought against the judgment referred to above, which dismissed the action which had been referred back to the Civil Service Tribunal by judgment of the General Court of 8 June 2011 in Case T-20/09 Commission v Marcuccio, setting aside in part the judgment in Case F-41/06 ruling on the appellant’s action seeking annulment of the Commission’s decision of 30 May 2005 by which he was retired on grounds of invalidity and of a series of measures connected to that decision, and on a claim that the Commission pay damages.

The appellant relies on 7 grounds of appeal.

1. Errores in procedendo, affecting the appellant’s interests, inherent in the serious, patent, flagrant, spectacular, manifest, irremediable and vital errores in iudicando.

2. Total failure to state reasons in the judgment under appeal.

3. The contested decision is unlawful on the grounds, inter alia, of lack of competence on the part of the author of the decision, defects in the decision-making procedure, entailing breach of essential procedural requirements and misuse of powers in the form of abuse of process.

4. Distortion and misapplication of the facts.

5. Incorrect, false and unreasonable (application and) breach of the rules on evidence and a number of legal principles and rules of law.

6. Failure to rule on a number of fundamental aspects of the case.
EN Official Journal of the European Union C 101/22

Action brought on 4 February 2013 — Formula One Licensing/OHIM — Idea Marketing (F1H2O)

(Case T-55/13)

2013/C 101/49

Language in which the application was lodged: English

Parties

Applicant: Formula One Licensing BV (Rotterdam, Netherlands) (represented by: B. Klingberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Idea Marketing SA (Lausanne, Switzerland)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of appeal in case R 1247/2011-4;

— Order the defendant to bear the costs of the proceedings before the Office for Harmonisation;

— Order the intervener to bear the costs of the proceedings before the Office for Harmonisation.

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 ‘F1H2O’ , for goods and services in classes 9, 25, 38 and 41 — International Registration No 925 383 designating the European Union

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

Mark or sign cited in opposition: International Registration No 732 134, British trade mark No 2277746B, Community trade mark No 3 934 387, International registration N 845 571, Benelux trademark No 749 056, British trade mark No 2277746 D, Community trade mark No 631 531, Community trade mark No 3 429 396, International Registration No 714 320, International Registration No 823 226 and Benelux trade mark No 732 601 of the mark‘F1 et al.’ for goods and services in classes 1, 3, 4, 7, 8, 9, 11, 12, 14, 16, 18, 21, 24, 25, 28, 29, 30, 32 to 36, 38, 39 and 41 to 43

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and (5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 108/33

Action brought on 18 February 2013 — Calestep v ECHA

(Case T-89/13)

2013/C 108/82

Language of the case: Spanish

Parties

Applicant: Calestep, SL (Estepa, Espana) (represented by: E. Cabezos Mateos, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should, applying all the steps of the procedure, uphold the application and annul the decision of the European Chemicals Agency (ECHA) to which the application relates.

Pleas in law and main arguments

The applicant in the present proceedings, as a result of its classification as a small company, has been paying the reduced fee referred to in Article 74(3) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1), and in Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency (OJ 2008 L 107, p. 6), which in turn refer to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36).

Having made checks, the ECHA considered that the applicant cannot be considered to be a small company, as it is part of a group. Upon finding that that company did not fulfil the requirements, the defendant ordered the applicant to pay the balance of the full fee due for a medium-sized company, as well as an administrative charge.

In support of its action, the applicant invokes a single plea in law based on failure to comply with two of the requirements of Article 2(2) of the Annex to the above Recommendation.

It is suggested in that regard that in order to prevent a company from being considered a small company, it is not enough that that company has more than 50 employees; it is necessary also to show that one of the other requirements under that provision is satisfied, as the provision contains the conjunction ‘and’. This has not been done in the present case.
EN Official Journal of the European Union C 101/29

Appeal brought on 11 February 2013 by BS against the judgment of the Civil Service Tribunal of 12 February 2012 in Case F-90/11, BS v Commission

(Case T-83/13 P)

2013/C 101/58

Language of the case: Italian

Parties

Appellant: BS (Messina, Italy) (represented by C. Pollicino, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Declare the appeal admissible and well founded;

— Set aside the judgment under appeal;

— Confirm that the ‘Rules on insurance against the risk of accident and occupational disease for officials of the European Communities’ cover ‘the entire cutaneous system’ and not just ‘deep cutaneous burns and pathological cutaneous scarring’;

— Order that a new medical committee be set up, with the task of reviewing the appellant’s case;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present appeal is brought against the judgment dismissing an action seeking, in essence, annulment of the decision by which the appointing authority concluded the procedure initiated for the purpose of Article 73 of the Staff Rules of Officials of the European Union by finding that the appellant did not suffer physical or mental impairments as a result of an attack on the appellant.

The appellant relies on two grounds of appeal.

1. The first ground of appeal, alleging breach of the third paragraph of Article 22 of the Rules on Insurance. It is submitted in this regard that, contrary to the requirements of those rules, the medical committee did not reach its decision as a collegiate body and, when it encountered a legal problem, failed to declare that it lacked competence.
1.

First plea in law, alleging breach of the obligation to state reasons, of the rights of the defence and of the right to effective legal protection In this context it is claimed, inter alia, that the statement of reasons in the contested acts is incomprehensible to the applicant, and comprehensible reasons were not communicated separately to the applicant by the defendant. As a result the applicant’s rights of defence and its right to effective legal protection have been breached. There has also been a breach of the principle of the right to be heard. The applicant claims that the contested acts were not served on it by the defendant and that there was no hearing of the applicant. Further, it is submitted that the defendant did not correctly assess the circumstances relating to the applicant. The applicant takes the view that it was deprived of a fair trial based on the rule of law, having been unable, in the absence of adequate knowledge, to comment specifically on the relevant allegations and alleged evidence of the Council, or to put forward any contrary evidence in the proceedings.
EN Official Journal of the European Union C 123/20

Action brought on 21 February 2013 — Laboratoires Polive/OHIM — Arbora & Ausonia (dodie)

(Case T-122/13)

2013/C 123/33

Language in which the application was lodged: English

Parties

Applicant: Laboratoires Polive (Levallois Perret, France) (represented by: A. Sion, lawyer)

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

Other party to the proceedings before the Board of Appeal: Arbora & Ausonia, SL (Barcelona, Spain)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision rendered by the second Board of Appeal on 28 November 2012;

— Order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark (in colour) ‘dodie’, for goods in classes 3, 5, 8, 9, 10, 11, 16, 18, 21, 25 and 28 — Community trade mark application No 9 037 821

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 and Portuguese trade marks of the word mark ‘DODOT’ for goods in classes 3, 5, 10, 12, 16, 18, 20, 21, 24, 25, 28, 44

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision, upheld the opposition and rejected the trade mark applied for in relation to certain goods in classes 3, 5, 8, 10, 11, 16, 18, 21, 25 and 28

Pleas in law: Infringement of Articles 8(1)(b) Council Regulation No 207/2009.
EN Official Journal of the European Union C 147/23

Action brought on 14 March 2013 — Petro Suisse Intertrade v Council

(Case T-156/13)

2013/C 147/41

Language of the case: English

Parties

Applicant: Petro Suisse Intertrade Co. SA (Pully, Switzerland) (represented by: J. Grayston, Solicitor, P. Gjørtler, G. Pandey, D. Rovetta, N. Pilkington and D. Sellers, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

— Annul Council Decision 2012/829/CFSP of 21 December 2012 (OJ 22.12.2012, L 356, p.71), amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 (OJ 22.12.2012, L 356, p. 55), implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as the contested acts include the applicant; and,

— Order the Council to bear the costs of the present proceedings.

Pleas in law and main arguments

The applicant submits six grounds of challenge concerning infringement of an essential procedural requirement, as well as infringement of the Treaties and of rules of law relating to their application: violation of the right of hearing, violation of the obligation to give proper notice, insufficient statement of grounds, violation of the right of defence, manifest error of assessment, and breach of the fundamental right to property.

The applicant finds that the Council failed to perform a hearing of the applicant, and that no contrary indications would justify this. Furthermore, the Council failed to properly identify the applicant as the subject of the decision and regulation and also to properly identify the applicant in its letter of notification, and in any case these acts contained an insufficient statement of reasons. Requests by the applicant to confirm the identification, to expand on the statement of reasons, and for access to documents were not replied to, apart from a brief letter acknowledging receipt. By these omissions, the Council violated the right of defence of the applicant, who was denied the possibility of effectively arguing against the findings of the Council, as these findings were withheld from the applicant. Contrary to the claim of the Council, the applicant is not a front company controlled by the National Iranian Oil Company (NIOC), and in any case the Council has not substantiated that control of the applicant by NIOC would entail an economic benefit for the Iranian State that would be contrary to the aim of the contested decision and regulation. Finally, by restricting the ability of the applicant to form contracts, the Council has violated the basic right of property by taking measures for which the proportionality cannot be ascertained.
—

On that point, the applicant claims that, by making it compulsory for applications to be submitted in English, French or German and for any communications sent to candidates by EPSO regarding developments in the competition to be written in one of those languages, the right of EU citizens to interact with the institutions in their own language has been breached, and further discrimination against those citizens not having a thorough knowledge of those three languages has been created.