ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 297/30

Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service Tribunal in Case F-86/07, Marcuccio v Commission

(Case T-402/09 P)

2009/C 297/45

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

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 made by the Civil Service Tribunal (CST) on 20 July 2009 in Case F-86/07 Marcuccio v Commission. That order dismissed, as partly manifestly inadmissible and partly manifestly unfounded, an action for annulment of the Commission’s decision refusing the appellant’s request for an investigation into the psychological harassment suffered by the appellant during the period in which he was on secondment to the Commission’s delegation in Angola, and for an order that the defendant pay compensation for the damage resulting from the psychological harassment alleged.

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

— incorrect and inappropriate interpretation of the concept of investigation in Article 17(2) of the Common Rules on insurance against the risk of accident and of occupational diseases of officials of the European Communities and the concept of inquiry for the purpose of establishing whether an official of an institution has been subjected to psychological harassment;

— the Tribunal erred in law in declaring inadmissible the application for annulment of the decision rejecting the request for an inquiry, by reason, inter alia, of misinterpretation in rejecting that application as unfounded;

— the Tribunal erred in law in declaring inadmissible the application for annulment of the report drawn up by the Investigation and Disciplinary Office (IDOC), by reason, inter alia, of a total failure to state reasons, failure to rule on a fundamental aspect of the dispute and misapplication of the concept of a preparatory act in the circumstances of the case;

— misinterpretation of the concept of psychological harassment and of the burden of proof of the psychological harassment on the person claiming such harassment;
EN Official Journal of the European Union C 312/39

Action brought on 22 October 2009 — centrotherm Clean Solutions v OHIM — Centrotherm Systemtechnik (CENTROTHERM)

(Case T-427/09)

2009/C 312/65

Language in which the application was lodged: German

Parties

Applicant: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany) (represented by: O. Löffel, 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: Centrotherm Systemtechnik GmbH (Brilon, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 25 August 2009 in Case R 6/2008-4, in so far as the application for a declaration of revocation was dismissed in respect of the following goods: — Class 11 — Heating exhausts; chimney flues; boiler pipes for heating installations; brackets for gas burners; mechanical parts for heating installations; mechanical parts for gas installations; accumulators; chimney blowers; — Class 17 — Pipe links; pipe sockets; pipe fittings; tubes; all of the above goods not made out of metal; — Class 19 — Pipes; piping, in particular for construction purposes; branch pipes; chimney pipes;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘CENTROTHERM’ for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: Centrotherm Systemtechnik GmbH

Applicant for the declaration of invalidity: The applicant

Decision of the Cancellation Division: Revocation of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark

Pleas in law: Infringement of Article 51(1)(a) of Regulation No 207/2009 (1) in conjunction with Rule 40(5) and Rule 22(2) and (3) of Regulation (EC) No 2868/95, (2) in so far as the proof of use submitted by the proprietor of the trade mark was found to be sufficient so as to establish a genuine use of the trade mark at issue for the purposes of Article 15 of Regulation No 207/2009.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 24/55

Action brought on 6 November 2009 — Centre national de la recherche scientifique v Commission

(Case T-447/09)

2010/C 24/98

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of 28 August 2009 relating to the set-off between the claim arising under contract FP7 239108 ICT — VAMDC/=PF=, and the Community’s alleged claim on the applicant under the NEMAGENETAG contract;

— order the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

By the present action, the Centre national de la recherche scientifique (CNRS) seeks the annulment of the set-off measure contained in Decision BUDG/C3 D(2009) 10.5 — 1232 of 28 August 2009, by which the Commission recovered sums paid to the applicant pursuant to the NEMAGENETAG contract relating to a project under the Sixth Framework Programme for Research and Technological Development.

The applicant puts forward three pleas in law in support of its application, alleging:

— infringement of the rights of the defence, in that the decision was taken without the Commission having considered the information in the applicant’s detailed response to the final audit report;

— errors of law and manifest errors of assessment of the facts which affected the decision and which led the Commission to refuse costs by adjusting the criteria for the assessment of eligible expenditure, and erroneously to dismiss conclusive evidence of expenditure incurred for the purposes of the project;
EN Official Journal of the European Union C 11/27

Action brought on 5 October 2009 — Evropaïki Dynamiki v Commission

(Case T-409/09)

2010/C 11/54

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athenes, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— order the Commission to pay to the applicant the amount of EUR 2 000 000, corresponding to the gross profit of the applicant (50 % of the contract value);

— order the Commission to pay the amount of EUR 100 000 corresponding to the damage suffered because of the missed opportunity to execute contract;

— order the Commission to pay the applicant’s legal costs and other costs and expenses incurred in connection with this application even if the current application is dismissed.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for non-contractual liability arising from the damages it claims to have incurred as a result of the Commission’s decision of 15 September 2004 to reject the applicant’s bid submitted in response to a call for an open tender FISH/2004/02 for the provision of computer and related services linked to the information systems of the Directorate — General for Fisheries (1) and to award the contract to the successful contractor. In its judgment of 10 September 2008 (2) the Court of First Instance found that, when adopting the said decision the Commission, has failed to fulfil its obligation under Article 100 of the Financial Regulation (3) and Article 149 of the Implementing Rules to state reasons. The Court did not rule on the other pleas in law relied on by the applicant.

The applicant states in support of its contentions that through the above judgment the Court recognized that the evaluation committee confused award and selection criteria and valuated wrongly the tender of the applicant rejecting it unfoundedly.

Furthermore, the applicant raises additional irregularities in the above tendering procedure which were submitted in Case T-465/04 that were not examined and commented by the Court. The applicant argues that the Commission infringed the principle of non-discrimination and free competition and the principle of good administration and diligence and that it committed evident errors of appreciation. It claims that in such circumstances, the infringement of Community law establishes a sufficiently serious breach of law.

The applicant submits that since the Court annulled the Commission decision after the contract awarded based on the annulled decision was fully executed, the applicant requests compensation for the non awarding of the said contract as well as for loss of opportunity.

(1) OJ 2004/S 73 — 061407.

(2) Case T-465/04, Evropaïki Dynamiki v Commission, ECR 2008, p. II-00154.

(3) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).
EN Official Journal of the European Union C 37/46

Action brought on 8 December 2009 — PhysioNova v OHIM — Flex Equipos de Descanso (FLEX)

(Case T-501/09)

2010/C 37/67

Language in which the application was lodged: German

Parties

Applicant: PhysioNova GmbH (Erlangen, Germany) (represented by: J. Klinik, 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: Flex Equipos de Descanso, SA (Madrid, Spain)

Form of order sought

— Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1/2009-1;

— amend the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 1/2009-1 so as to overrule the decision of the Cancellation Division of 27. October 2008 in Case 2237 C;

— order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the Community figurative mark ‘FLEX’ No 2 275 220 for goods and services in classes 6, 10, 17 and 20

Proprietor of the Community trade mark: Flex Equipos de Descanso, SA

Applicant for the declaration of invalidity: PhysioNova GmbH

Trade mark right of applicant for the declaration: the German trade mark No 39 903 314‘PhysioFlex’ and the German trade mark No 39 644 431‘Rotoflex’

Decision of the Cancellation Division: Rejection of the application for declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is a likelihood of confusion between the trade marks at issue

(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 24/64

Action brought on 26 November 2009 — Matkompaniet v OHIM — DF World of Spices (KATOZ)

(Case T-473/09)

2010/C 24/113

Language in which the application was lodged: English

Parties

Applicant: Matkompaniet AB (Borås, Sweden) (represented by: J. Gulliksson, lawyer)

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

Other party to the proceedings before the Board of Appeal: DF World of Spices GmbH (Dissen, Germany)

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 9 September 2009 in case R 1023/2008-2;

— Order the defendant to bear the costs incurred both in these proceedings and in the proceedings before it.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “KATOZ”, for goods in classes 29 and 30

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: German trade mark registration of the figurative mark “KATTUS”, for goods in classes 29 and 30

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law:

Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 51/37

Action brought on 22 December 2009 — Baena Grupo v OHIM — Neuman and Galdeano del Sel (Designs)

(Case T-513/09)

2010/C 51/72

Language in which the application was lodged: Spanish

Parties

Applicant: José Manuel Baena Grupo, SA (Santa Perpètua de Mogoda, Spain) (represented by: A. Canela Giménez, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Herbert Neuman and Andoni Galdeano del Sel

Form of order sought

— allow the action against the decision of 14 October 2009 of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) in Case R 1323/2008-3;

— annul OHIM's decision;

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community registered design No 000 426 895-0002 for ornamentation for T–shirts, ornamentation for caps, ornamentation for stickers, ornamentation for printed material including advertising material.

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Herbert Neuman and Andoni Galdeano del Sel

Trade mark right of applicant for the declaration: figurative Community mark No 1 312 651, for goods in Classes 25, 28 and 32 of the Classification of Nice.

Decision of the Cancellation Division of the Designs Department: allow the application and declare the design to be invalid.

Decision of the Board of Appeal: annul the contested decision and, pursuant to the power conferred on it by Article 60(1) of Regulation No 6/2002 on Community designs, decide the appeal on its merits and declare the invalidity of the Community design.

Pleas in law: incorrect interpretation of Article 6(1) of Regulation No 6/2002.
EN Official Journal of the European Union C 37/44

Action brought on 3 December 2009 — Spain v Commission

(Case T-491/09)

2010/C 37/62

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Defendant: European Commission

Form of order sought

— annul Commission Decision 2009/721/EC of 24 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), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it is the object of the present action; and

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on the following pleas:

1. Infringement, with regard to the financial correction applicable to aid to olive oil production, of Article 7(4) of Regulation 1258/1999 (1) and Article 31(1) of Regulation 1290/2005, (2) since the contested decision applies them in inappropriate circumstances, given that the theoretical irregularities relied on by the Commission to justify the financial corrective measures decided upon are insufficient.

2. That the irregularities alleged by the Commission concerning the financial correction applicable to aid for premiums for ovines and caprines do not exist, which implies that the contested decision infringed Article 7(4) of Regulation 1258/1999 and Article 31(1) of Regulation 1290/2005, by applying those provisions in inappropriate circumstances. It is alleged, in that regard, that on-the-spot checks were carried out during the retention period, in accordance with Article 24(2) of Regulation 2419/2001, (3) and that the problems alleged by the Commission in relation to the registration books of farms and to the fact that the inspectors made no observations concerning registrations not carried out, do not affect the determination of the number of animals eligible for subsidy of the farm throughout the entire retention period.

(1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

(2) Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).

(3) Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).
EN Official Journal of the European Union C 80/35

Action brought on 20 January 2010 — Klaus Goutier v OHIM — Rauch (ARANTAX)

(Case T-13/10)

2010/C 80/58

Language in which the application was lodged: German

Parties

Applicant: Klaus Goutier (Frankfurt am Main, Germany) (represented by: E.E. Happe, 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: Norbert Rauch (Herzogenaurach, Germany)

Form of order sought

— Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 November 2009 (in Case R 1769/2008-4) in so far as the application for a Community mark annulling the contested decision was rejected for the following services: — Class 35 — Tax consultancy, tax preparation, accounting, auditing, professional business consultancy, business consultancy; — Class 36 — Fiscal assessments, mergers and acquisitions, namely financial consultancy with regard to the purchase or sale of companies and company shares, financial management; — Class 43 — Provision of legal services, legal research;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Klaus Goutier

Community trade mark concerned: the word mark ‘ARANTAX’ for services in Classes 35, 36 and 42 (Application No 4 823 084)

Proprietor of the mark or sign cited in the opposition proceedings: Norbert Rauch

Mark or sign cited in opposition: the German word mark ‘atarax’ No 30 168 707 for goods and services in Classes 9, 35, 37, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Partial annulment of the Opposition Division’s decision and partial rejection of the Community trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, (1) owing to the absence of likelihood of confusion of the marks at issue

(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 80/40

Action brought on 22 January 2010 — Ella Valley Vineyards v OHIM — Hachette Filipacchi Press (ELLA VALLEY VINEYARDS)

(Case T-32/10)

2010/C 80/65

Language in which the application was lodged: French

Parties

Applicant: Ella Valley Vineyards (Adulam) Ltd (Jerusalem, Israel) (represented by: C. de Haas, lawyer)

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

Other part to the proceedings before the Board of Appeal of OHIM: Hachette Filipacchi Presse SA (Levallois-Perret, France)

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of 11 November in all its provisions because it infringed Article 8(5) of Regulation (EC) No 207/2009;

— order OHIM to pay the costs of ELLA VALLEY VINEYARDS pursuant to Articles 87 to 93 of the Rules of Procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Ella Valley Vineyards (Adulam) Ltd.

Community trade mark concerned: the figurative mark ‘ELLA VALLEY VINEYARDS’ for goods in Class 33 (Application for registration No 3 360 914).

Proprietor of the mark or sign cited in the opposition proceedings: Hachette Filipacchi Presse SA.

Mark or sign cited in opposition: French word mark and the Community word mark ‘ELLE’ for goods in Class 16 (Community trade mark No 3 475 365).

Decision of the Opposition Division: Dismissal of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division.

Pleas in law: Infringement of Article 8(5) of Regulation (EC) No 207/2009 because the public concerned will not make any link between the marks at issue and because the use of the mark ‘ELLA VALLEY VINEYARDS’ does not take unfair advantage of the reputation of the earlier ‘ELLE’ marks