ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 320/34

Action brought on 10 July 2015 — Jordi Nogues/OHIM — Grupo Osborne (BADTORO)

(Case T-386/15)

(2015/C 320/51)

Language in which the application was lodged: Spanish

Parties

Applicant: Jordi Nogues, SL (Barcelona, Spain) (represented by: M. Sanmartín Sanmartín and E. López Parés, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grupo Osborne, SA (El Puerto de Santa María, Spain)

Details of the proceedings before OHIM

Applicant: Applicant

Trade mark at issue: Community figurative mark containing the word element ‘BADTORO’ — Application for registration No 10 975 027

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of OHIM of 17 April 2015 in Case R 2570/2013-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order OHIM to bear its own costs and to pay the applicant’s costs.

Pleas in law

— Infringement of Articles 75, 76 and 83 of Regulation No 207/2009, in conjunction with Articles 65(6), 96, 106(4) and (6) and 135 of Regulation No 2868/95;
4.

The fourth plea in law is a claim of a manifest error of law in the interpretation and application of Articles 107 and 108 TFEU with respect to the finding that the Commission did not have to engage in complex economic assessments and a manifest error of law and a manifest error of assessment of the factual circumstances in so far as the Commission failed to examine crucial issues with respect to finding whether or not there was State Aid.
EN Official Journal of the European Union C 328/19

Action brought on 27 July 2015 — Islamic Republic of Iran Shipping Lines a.o./Council

(Case T-434/15)

(2015/C 328/19)

Language of the case: English

Parties

Applicants: Islamic Republic of Iran Shipping Lines (Tehran, Iran); Hafize Darya Shipping Lines (HDSL) (Tehran); Safiran Payam Darya Shipping Lines (SAPID) (Tehran); Khazar Sea Shipping Lines (Anzali Free Zone, Iran); Rahbaran Omid Darya Ship Management Co. (Tehran); Irinvestship Ltd (London, United Kingdom); and IRISL Europe GmbH (Hambourg, Germany) (represented by: M. Taher, Solicitor, M. Malek, QC, and R. Blakeley, Barrister).

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

— order the Council to pay the applicants compensation, for an amount to be determined in the course of the present proceedings, but not less than USD 57 1 0 40 504, together with interest; and

— order the Council 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 EU Council’s imposition of restrictive measures on the applicants was a sufficiently serious breach of obligations intended to confer rights upon the Applicants and accordingly the non-contractual liability of the EU is engaged. This breach was the direct cause of significant material and non-material harm to the applicants for which they are entitled to compensation.
—

consequently, annul the decision of the Commission to regard as State aid incompatible with the internal market the fact that the economic activities of Belgian ports, and in particular Walloon ports, are not subjected to corporate tax;
—

annul the decision of the European Railway Agency which was communicated to the applicants by letter dated 08/05/2015 from the Head of Resources and Support Unit and whereby ERA ranked in second place the applicant’s tender for one of three individual lots and specifically for Lot 1 ‘On-site time and means information system development, support and assistance’, in the framework of the open procurement procedure No 2015/S 019-029728 titled ‘ΕRA/2015/01/OP ESPEISD 5 — External Service Provision for ERA Information System’·
First plea in law, alleging incorrect findings of the relevant facts of the case

The applicant claims that the Commission infringed Article 108 TFEU read in conjunction with Article 107 TFEU and Article 17 TEU in so far as it did not perform its duty under the law on State aid to keep State aid under review and, in its decision, incorrectly represented material aspects of the facts of the case.
—

The applicants claim in that respect that the conduct at issue has not taken place in practice, as is clear from the documents relating to the investigation and as even the Commission acknowledged in the contested decision. That situation should have been duly taken into consideration in the overall assessment of the severity of the infringements and, accordingly, when determining the applicable fines. However, that aspect is not taken into consideration in the contested decision. Nor are any reasons given in that regard.
—

The appraisal system 1. First plea in law, alleging an infringement of Article 43 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), breach of the rules on the allocation of the burden of proof, breach of the rule against ruling ultra petita and breach of the appellant’s rights of the defence. 2. Second plea in law, alleging infringement of the limits of judicial review. The appellant submits that, in the judgment under appeal, the Civil Service Tribunal (‘the CST’) has exceeded the limits of its power of judicial review several times, and appears to be seeking to oblige it to adopt a particular system of staff appraisal. 3. Third plea in law, alleging that the Tribunal erred in law in finding that an appraisal system not based on marks lacks objectivity, and that it infringed Article 43 of the Staff Regulations. 4. Fourth plea in law alleging an infringement of Article 266 TFEU, in that, by partially annulling the decision at issue, the CST made it impossible to implement the judgment under appeal without giving rise to other instances of unlawfulness. The appellant submits that, if Article 4 of the decision at issue is unlawful, a new comparative analysis of the defendant’s merits with those of the other officials eligible for promotion in his grade must be made, pursuant to the judgment under appeal, on the basis of the staff appraisal reports which, in accordance with the CST’s ruling, do not make it possible for that analysis to be made on an objective and comparable basis.
3.

Third plea in law, alleging an error of law in the interpretation of the duty to care, since the Civil Service Tribunal held that, on the basis of the evidence available to it when it adopted the contested decision, the Commission had acted in breach of its duty of care by failing, for the third hearing, to invite the applicant at first instance before it on the ground that, first, the facts subject to the proceedings were relatively old, secondly, that the official was on sick leave and that, third, his lawyer had refused, for a second time, the invitation.
—

incorrect assessment in law of the measures in favour of the airport at issue in so far as, within the meaning of Article 107(1) of TFEU, certain measures were not classified as State aid and others were classified as State aid in conformity with the internal market;
EN Official Journal of the European Union C 381/51

Action brought on 17 September 2015 — Industrie Aeronautiche Reggiane v OHIM — Audi (NSU)

(Case T-541/15)

(2015/C 381/62)

Language in which the application was lodged: English

Parties

Applicant: Industrie Aeronautiche Reggiane Srl (Reggio Emilia, Italy) (represented by: M. Gurrado, lawyer)

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

Other party to the proceedings before the Board of Appeal: Audi AG (Ingolstadt, Germany)

Details of the proceedings before OHIM

Applicant: Applicant

Trade mark at issue: Community word mark ‘NSU’ — Application for registration No 9 593 492

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of OHIM of 6 July 2015 in Case R 2132/2014-2

Form of order sought

The applicant claims that the Court should:

— annul the contested decision and, as a result, the OHIM shall proceed with the registration of the application for CTM;

— order AUDI to bear its own costs and pay those of the Applicant, also for the proceedings before the OHIM Opposition Division and the Board of Appeal.

Pleas in law

— Audi failed to demonstrate genuine use of the earlier mark;

— Existence of a difference between components and finished products;
—

The contested decision is vitiated by a manifest error of assessment in distinguishing between ‘usual’ and ‘additional’ service provided by the applicants’ partners/shareholders during the project in question, as the EACEA manifestly disregarded the nature of the services provided by the partners, the clear will of the applicant’s general assembly to address and regulate such services as it considered them to constitute a distinct category that was not falling under the provisions of the Statutes, and the fact that the services provided by the partners in the project in question met all the requirements of the aforementioned decision of the general assembly.
EN Official Journal of the European Union C 398/76

Action brought on 14 October 2015 — Metabolic Balance Holding GmbH v OHIM (Metabolic Balance)

(Case T-594/15)

(2015/C 398/88)

Language of the case: German

Parties

Applicant: Metabolic Balance Holding GmbH (Isen, Germany) (represented by: W. Riegger, lawyer)

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

Details of the proceedings before OHIM

Trade mark at issue: Community figurative mark containing the word element ‘Metabolic Balance’ — Application for registration No 1 2 5 86 137

Contested decision: Decision of the First Board of Appeal of OHIM of 12 August in Case R 2156/2014-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order OHIM to pay the costs, including those of the proceedings before the Board of Appeal.

Pleas in law

— Infringement of Article 7(1)(b) of Regulation No 207/2009;
EN Official Journal of the European Union C 389/62

Action brought on 25 September 2015 — Portugal v Commission

(Case T-551/15)

(2015/C 389/70)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo, P. Estêvăo and J. Saraiva de Almeida, Agents)

Defendant: European Commission

Form of order sought

(1) Annul Commission Implementing Decision (EU) 2015/1119, (1) in so far it excludes from European Union financing the sum of EUR 5 01 445,57 relating to expenditure declared by the Portuguese Republic in connection with the flax and hemp measure for the marketing year 1999/2000;

(2) order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law, alleging the following defects:

1. infringement of Article 5(2) of Regulation No 729/70: (2) the Commission has failed to demonstrate any infringement of the rules governing the common organisation of agricultural markets;

2. infringement of Article 5(2) of Regulation No 729/70 on the ground that the conditions laid down by the Commission in the uniform guidelines set out in Document No VI/5330/97 (3) for the application of a flat-rate 25 % financial correction are not fulfilled;

3. infringement of Article 31 of Regulation No 1290/2005: (4) expenditure incurred more than 24 months previously — on the ground that, by excluding from Community financing expenditure incurred in 1999 and 2000, the contested decision refuses to fund expenditure incurred more than 24 months before the Commission gave the Portuguese authorities written notification of its inspection findings deriving from the annulment of the Commission’s decision of 28 April 2006. (5)

(1) Commission Implementing Decision (EU) 2015/1119 of 22 June 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 182, p. 39).

(2) Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ English Special Edition, 1970(I), p. 218).

(3) Commission Document No VI/5330/97 of 23 December 2007, Commission guidelines on the calculation of financial consequences when preparing decisions concerning the clearance of EAGGF, Guarantee Section, accounts.

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

(5) Commission Decision of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 124, p. 21).
—

annul the decision of the Commission to accept the dossier CY/PDO/0005/01243 lodged by the authorities of the Republic of Cyprus as meeting the conditions laid down by Regulation (EU) No 1151/2012 of the European Parliament and of the Council, of 21 November 2012, on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), as provided by Article 50 (1) of this regulation, and to proceed to its publication in the Official Journal of the European Union with reference 2015/C 246/12;
—

annul Article 1(2) of the Commission’s Decision C(2015)4336 final of 24 June 2015 in Case AT.39563 — Retail food packaging, in so far as it finds that Huhtamaki Oyj infringed Article 101 TFEU by participating, for the period indicated at Article 1(2) d) of the Commission Decision, in a single and continuous infringement which consisted of several separate infringements, in the foam trays for retail food packaging sector and covering the territory of Spain, from the beginning of the infringement, and Portugal, from 8 June 2000; and
EN Official Journal of the European Union C 16/44

Action brought on 9 November 2015 — Tractel Greifzug v OHIM — Jiangsu Shenxi Construction Machinery (Shape of a motorised rope winch)

(Case T-621/15)

(2016/C 016/52)

Language in which the application was lodged: German

Parties

Applicant: Tractel Greifzug GmbH (Bergisch Gladbach, Germany) (represented by: U. Lüken and C. Maierhöfer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Jiangsu Shenxi Construction Machinery Co. Ltd (Wuxi, China)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Three-dimensional Community trade mark (Shape of a motorised rope winch) — Community trade mark No 7 033 061

Procedure before OHIM: Invalidity proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 3 September 2015 in Case R 1658/2014-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision and reject the application for a declaration of invalidity in its entirety;

— order OHIM to pay the costs.

Pleas in law

— Infringement of Article 7(1)(b) of Regulation No 207/2009;
EN Official Journal of the European Union C 429/28

Action brought on 22 October 2015 — CEVA v Commission

(Case T-601/15)

(2015/C 429/36)

Language of the case: French

Parties

Applicant: Centre d’étude et de valorisation des algues SA (CEVA) (Pleubian, France) (represented by: E. De Boissieu, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— order the Commission to pay CEVA the amount of EUR 59 103,21, in accordance with the Grant Agreement;

— order the Commission to pay all the costs.

Pleas in law and main arguments

With this application, the applicant seeks an order for the payment by the Commission of the first instalment of the financial contribution granted in implement of the SEABIOPLAS contract and the Grant Agreement, concerning a research and technological development project in the field of ‘Algae grown from sustainable aquaculture as raw material for biodegradable bioplastics’, following the offsetting of that amount by the Commission of its own motion by way of recovery of the sums paid to the applicant under the PROTOP contract, in accordance with the findings of a financial audit by OLAF.

In support of the action, the applicant relies, essentially, on a single plea in law, alleging errors committed by the Commission which prevented the recovery by offsetting claims against sums paid to the applicant by the Commission. The applicant claims, in essence, that the conditions for recovery by offsetting were not met. First, the claim of the Commission against the applicant was neither certain, nor payable. Second, the Commission had not complied with Article 87(2) (recovery by offsetting) and Article 88 (recovery procedure failing voluntary payment) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union. Finally, the applicant claims that the Commission has no contractual claim against it. In the alternative, in the event that the Court holds that the offsetting is valid, the applicant submits that the refund of the total amount of the grant it received is contrary to the principle of proportionality and amounts to the unjust enrichment of the Commission.
2.

Second plea in law, alleging infringement of the essential procedural requirements laid down in Articles 1, 4(6), 6(5) and 9 of Regulation (EC) No 1073/1999 and recital 10 in the preamble thereto, infringement of the essential procedural requirements laid down in Article 4 of the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by OLAF; lack of competence of OLAF; infringement of the principle of proportionality and reasonableness and inadequate investigation and careful consideration. — In that regard, the applicant considers that the procedure carried out by OLAF is vitatied on a number of grounds, given that the inter-partes procedure was not properly conducted in relation to Mr Panzeri, there was no final investigation report and the whole OLAF investigation procedure took place in clear breach of Article 6(5) of Regulation No 1073/1999 since it was opened on 23 November 2009 and only concluded (presumably) in July 2012. Furthermore, OLAF could not have been competent, given the trivial nature of the behaviour attributed to the applicant, with the result that the principle of proportionality has been breached.
EN Official Journal of the European Union C 27/63

Action brought on 23 October 2015 — Wirtschaftsvereinigung Stahl and Others v Commission

(Case T-605/15)

(2016/C 027/80)

Language of the case: German

Parties

Applicants: Wirtschaftsvereinigung Stahl (Düsseldorf, Germany), Benteler Steel/Tube GmbH (Paderborn, Germany), BGH Edelstahl Freital GmbH (Freital, Germany), BGH Edelstahl Lippendorf GmbH (Lippendorf, Germany), BGH Edelstahl Siegen GmbH (Siegen, Germany), Buderus Edelstahl GmbH (Wetzlar, Germany), ESF Elbe-Stahlwerke Feralpi GmbH (Riesa, Germany), Friedr. Lohmann GmbH Werk für Spezial- & Edelstähle (Witten, Germany), Outokumpu Nirosta GmbH (Krefeld, Germany), Rogesa Roheisengesellschaft Saar mbH (Dillingen, Germany), Zentralkokerei Saar GmbH (Dillingen), Drahtwerk St. Ingbert GmbH (Sankt Ingbert, Germany), Ilsenburger Grobblech GmbH (Ilsenburg, Germany), ThyssenKrupp Electrical Steel GmbH (Gelsenkirchen, Germany), ThyssenKrupp Federn und Stabilisatoren GmbH (Hagen, Germany), ThyssenKrupp Gerlach GmbH (Homburg, Germany), ThyssenKrupp Rasselstein GmbH (Andernach, Germany) und Emscher Aufbereitung GmbH (Mühlheim an der Ruhr, Germany) (represented by: H. Janssen, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul the contested decision;

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

Pleas in law and main arguments

By the present action, the applicants seek the annulment of Commission Decision (EU) 2015/1585 of 25 November 2014 (notified under document C(2014) 8786) on the aid scheme SA.33995 (2013/C) (ex 2013/NN) implemented by Germany for the support of renewable electricity and of energy-intensive users. (1)

In support of the action, the applicants rely on four pleas in law which are, in essence, identical or similar to the pleas relied on in Case T-319/15 Deutsche Edelstahlwerke v Commission. (2)

(1) OJ 2015 L 250, p. 122.

(2) OJ 2015 C 302, p. 60.
EN Official Journal of the European Union C 38/67

Action brought on 26 November 2015 — Sulayr Global Service v OHIM — Sulayr Calidad (sulayr GLOBAL SERVICE)

(Case T-685/15)

(2016/C 038/91)

Language in which the application was lodged: Spanish

Parties

Applicant: Sulayr Global Service, SL (Valle del Zalabi, Spain) (represented by: P. López Ronda, G. Macías Bonilla, G. Marín Raigal, and E. Armero Lavie, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sulayr Calidad, SL (Granada, Spain)

Details of the proceedings before OHIM

Applicant for the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word elements ‘sulayr GLOBAL SERVICE’ — Application for registration No 11 960 515

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 23 September 2015 in Case R 149/2015-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision, in so far as it found a similarity between the services sought in class 40 and the services covered by the earlier mark in class 42 and consequently, a risk of confusion as regards those services;

— order OHIM to pay the costs.

Pleas in law

— Infringement of Article 60 of Regulation No 207/2009 and Rule 49(1) of Regulation No 2868/95.

— Infringement of Article 75 of Regulation No 207/2009.
3.

Third plea in law, alleging that the Commission violated Articles 2(1) of the Basic Regulation because it unduly discarded sales of the product concerned in the ordinary course of trade to an independent domestic customer to determine normal value. The Commission did not sufficiently state the reason of such refusal. Furthermore, assuming the reason of such refusal is merely the fact that these sales were exported after the sale (without the applicant knowing), the criteria the Commission applied is illegal. The Commission should have considered the applicant’s intention regarding the end destination of these sales at the time of the sale. Thus, the Commission violated Article 2(2) of the Basic Regulation by rejecting domestic sales simply because they were exported by an independent customer after the sale.