ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 44/49

Action brought on 21 November 2008 — Mologen v OHIM (dSLIM)

(Case T-504/08)

(2009/C 44/86)

Language of the case: German

Parties

Applicant: Mologen AG (Berlin, Germany) (represented by C. Klages, lawyer)

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 17 September 2008 in Case R 1077/2007-4;

— order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘dSLIM’ for goods and services in classes 1, 5, 10, 42 and 44 (Application No 5 355 136).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), in that the sign neither lacks distinctive character nor involves a descriptive indication.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 55/39

Appeal brought on 19 December 2008 by Bart Nijs against the judgment of the Civil Service Tribunal delivered on 9 October 2008 in Case F-49/06 Nijs v Court of Auditors

(Case T-567/08 P)

(2009/C 55/70)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger, lawyer)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

— declare the appeal admissible;

— declare the appeal founded;

— accordingly, annul the order of 9 October 2008 in Case F-5/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

By this appeal, the applicant seeks annulment the judgment of the Civil Service Tribunal (the Tribunal) of 9 October 2008 in Case F-49/06 Nijs v Court of Auditors dismissing, as partially inadmissible and partially unfounded, the action for, first, annulment of the decision not to promote the applicant to grade A*11 for the 2005 promotion procedure and, second, damages.

In support of his appeal, the applicant puts forward four grounds of appeal:

— distortion of the application and the reply inasmuch as the judgment under appeal replaces a plea alleging that there was no decision by the appointing authority, implying a total lack of motivation, by a completely different plea;

— disregard and/or distortion of the evidence, the Tribunal having excluded it;

— wrong attribution of the burden of proof inasmuch as the Tribunal should have required proof of the defendant's allegations;
EN Official Journal of the European Union C 69/43

Action brought on 30 December 2008 — Carpent Languages v Commission

(Case T-582/08)

(2009/C 69/96)

Language of the case: French

Parties

Applicant: Carpent Languages SPRL (Brussels, Belgium) (represented by: P. Goergen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare the action admissible and well founded;

— Accordingly, annul the decision to reject the applicant's tender;

— Annul the decision awarding the contract to ADIE TECHNICS SPRL;

— In the alternative, in the event that the Court does not grant the application for annulment of the contested decision, order the Commission to pay the applicant the sum of EUR 200 000 (two hundred thousand Euros) as compensation for the applicant's pecuniary and non-pecuniary losses;

— Order the Commission of the European Communities to pay all the costs.

Pleas in law and main arguments

The applicant contests the decision of the Commission to reject its tender made in respect of the call for tenders for lot No 4 of the contract notice ‘Multiple framework contracts for meeting and conference organisation services’ (OJ 2008 S 58-77561), and the decision to award the contract to another tenderer. The applicant also seeks compensation for the loss allegedly caused by the contested decision.

In support of its action, the applicant raises three pleas in law, alleging:

— breach of the duty to state reasons, since the Commission stated neither the number of points obtained by the successful tenderer nor the advantages of the successful tender over that of the applicant; furthermore, the Commission did not inform the applicant which of the two case studies which it submitted did not obtain a sufficient number of points;

— a manifest error of assessment, in that the Evaluation Committee attributed a score of less than 70 points to one of the case studies submitted by the applicant despite the fact that the applicant set out in detail, in accordance with the specifications, the approach which it would have taken to supply the services required, the means which it would have allocated to the different tasks, the work schedule and an estimate of the costs;
EN Official Journal of the European Union C 55/29

Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)

(Case T-538/08)

(2009/C 55/55)

Language in which the application was lodged: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by M. Kinkeldey and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Koki Diskontläden GmbH (Oberhausen, Germany)

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM of 6 October 2008 in Case No R 744/2008-4 and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘inéa’ in the colours blue, pink and white for goods in Classes 3, 5 and 16 (application No 4 462 826).

Proprietor of the mark or sign cited in the opposition proceedings: Kodi Diskontläden GmbH.

Mark or sign cited in opposition: Trade mark ‘MINEA’ (No 303 61 428,5) for goods in Classes 8, 9 and 16, the opposition being directed against registration for goods in Class 16.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Decision of the Opposition Division annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 55/48

Appeal brought on 19 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 4 November 2008 in Case F-87/07 Marcuccio v Commission

(Case T-16/09 P)

(2009/C 55/86)

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: A.1 A decision setting aside the order under appeal, in its entirety and without exception. A.2 A declaration that the action at first instance was perfectly admissible.

— The principal claim: B.1 The granting in toto and without exception of the appellant's claims at first instance; B.2 an order that the respondent should pay in favour of the appellant all costs, fees and expenses incurred by him both at first instance and on appeal;

— or B.3 refer the case back to the Civil Service Tribunal, sitting in a different formation, so that it may give a fresh decision on the merits of the case.

Pleas in law and main arguments

The decision under appeal in this case is the order made by the Civil Service Tribunal on 4 November 2008 in Case T-87/07 Marcuccio v Commission.

The pleas in law and main arguments are similar to those put forward in Case T-9/09 Marcuccio v Commission.

The appellant claims, in particular, that the Civil Service Tribunal did not rule on a fundamental aspect of the dispute, that is to say, authorisation to produce a note signed by a doctor. He also alleges that the order lacks any reasoning and is illogical in respect of the alleged inadmissibility of the claim for damages, of the claim that the Tribunal should make a declaration establishing the reality of the actions and conduct complained of and, at least incidentally, declare them unlawful, and of the action at first instance as a whole.
EN Official Journal of the European Union C 69/52

Action brought on 30 January 2009 — El Corte Inglés v Commission

(Case T-38/09)

(2009/C 69/113)

Language of the case: Spanish

Parties

Applicant: El Corte Inglés (Madrid, Spain) (represented by: P. Muñiz and M. Baz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

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

Pleas in law and main arguments

This action is brought against Commission Decision C(2008) 6317 final of 3 November 2008 ordering the a posteriori recovery of import duties and finding that the remission of those duties was not justified in a particular case (REM File 03/07).

The applicant imported textiles from Jamaica, imports subject to the system of preferential treatment laid down in the EU-ACP Association Agreement provided that they are accompanied by a EUR. 1 movement of goods certificate, sent by the competent Jamaican authorities. The certificate was included as evidence that the goods originated in Jamaica. However, an OLAF investigation in Jamaica concluded that the goods did not acquire preferential origin status in Jamaica, so that they could not benefit from preferential treatment.

In response to the request for remission of the tax submitted by the applicant on the basis of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, the contested decision declared that the Jamaican authorities had not committed an error of the kind provided for in Article 220(2)(b) of that regulation and that the applicant was not in a special situation as a result of the incorrect representation of the facts by the exporters.

The applicant claims that the contested decision is null and void for the following reasons:

— The administrative procedure for the adoption of the contested decision infringes essential procedural requirements. Specifically, the contested decision breaches the principle of sound administration and seriously infringes the applicant's rights of defence on the ground that no administrative file exists concerning the processing of the contested decision.

— The contested decision contains an error of assessment by concluding that the applicant is not in a special situation. In this case a special situation exists in so far as: — the Jamaican authorities knew or ought to have known that that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment, even if the exporters had supplied incorrect information, — the Jamaican authorities committed a serious breach of their obligations.
EN Official Journal of the European Union C 69/50

Action brought on 21 January 2009 — Baid v OHIM (LE GOMMAGE DES FACADES)

(Case T-31/09)

(2009/C 69/110)

Language in which the application was lodged: French

Parties

Applicant: Baid SARL (Paris, France) (represented by M. Grasset, lawyer)

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

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 30 October 2008 (Case R 963/2008-1) and alter it to the effect that the action before OHIM brought by the applicant is well founded and, consequently, that the mark applied for is granted;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘LE GOMMAGE DES FACADES’ for goods and services in Classes 3, 19 and 37 — application No 6 071 641

Decision of the Examiner: Rejection of the application for registration

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 40/94, since the mark applied for is not descriptive; of Article 7(3) of that regulation, since the mark applied for has acquired distinctive character through use and of Article 73 of that regulation, since the contested decision is largely based on references to Internet pages.
EN Official Journal of the European Union C 82/29

Action brought on 21 January 2009 — Engelhorn v OHIM — The Outdoor Group (peerstorm)

(Case T-30/09)

(2009/C 82/52)

Language in which the application was lodged: German

Parties

Applicant: Engelhorn KGaA (Mannheim, Germany) (represented by: W. Göpfert, 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: The Outdoor Group Limited (Northampton, United Kingdom)

Form of order sought

— annul Decision R-167/2008-5 of the Fifth Board of Appeal of OHIM of 28 October 2008; 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 ‘peerstorm’ for goods and services in Class 25 (Community trade mark application No 4 115 382)

Proprietor of the mark or sign cited in the opposition proceedings: The Outdoor Group Limited

Mark or sign cited in opposition: the word mark ‘PETER STORM’ for goods in Class 25 (Community trade mark No 833 566) and the British trade mark ‘PETER STORM’ for goods in Class 18

Decision of the Opposition Division: opposition rejected

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for a Community trade mark

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) as there is no likelihood of confusion between the opposing trade marks, and infringement of Rule 22 of Regulation (EC) No 2868/95 (2) inasmuch as use preserving the right to use the trade mark cited in opposition has not been sufficiently proven.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, 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 102/28

Appeal brought on 23 February 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 9 December 2008 in Case F-52/05, Q v Commission

(Case T-80/09 P)

2009/C 102/43

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by V. Joris and B. Eggers, acting as Agents)

Other party to the proceedings: Q (Brussels, Belgium)

Form of order sought by the appellant

— annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05 in so far as it upholds the second plea alleging the unlawfulness of the implicit rejection of a distancing measure and the claims for compensation in connection with the distancing measure and disregard for the duty to have regard for the welfare of officials;

— dismiss the action brought by Q before the Civil Service Tribunal in Case F-52/05 in so far as it was upheld by that tribunal;

— make the appropriate order as to the costs of the proceedings before the Civil Service Tribunal and of the appeal;

— in the alternative, — annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05; — refer the case back to the Civil Service Tribunal; — reserve the costs.

Pleas in law and main arguments

By the present appeal, the Commission seeks the annulment of the judgment of the Civil Service Tribunal (the Tribunal) of 9 December 2008 given in Case F-52/05 Q v Commission by which the Tribunal annulled the Commission’s decision rejecting the request for assistance made by Q concerning alleged psychological harassment, in so far as provisional distancing measures had not been taken, and ordered the Commission to pay to Q the sum of EUR 18 000 in damages.

In support of its appeal, the Commission relies on two grounds of appeal alleging:

— that the Tribunal erred in law in holding that ‘a degree of failing in the duty to have regard for the welfare of officials’ constituted unlawful conduct giving rise to non-contractual liability on the part of the Community in so far as (i) the infringement of the duty to have regard for the welfare of the official in this case is not sufficiently serious to give rise to non-contractual liability on the part of the Community and (ii) the Tribunal held that there had been infringement of that duty to have regard for the welfare of the official in this case even though there had been no psychological harassment within the meaning of Article 12a of the Staff Regulations of Officials of the European Communities;
EN Official Journal of the European Union C 90/29

Action brought on 30 January 2009 — Evropaïki Dynamiki v Commission

(Case T-49/09)

2009/C 90/45

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and P. Katsimani, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the Commission’s decision to reject the bid of the applicant, filed in response to the open call for tender REGIO-A4-2008-01 for the “Maintenance and development of the Directorate-General for Regional Policy’s Information System” (1) communicated to the applicant by letter dated 21 November 2008 and all further related decisions including the one to award the contract to the successful contractor;

— order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 4 520 845,05;

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

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant’s decision to reject its bid submitted in response to a call for an open tender REGIO-A4-2008-01 for the “Maintenance and Development of the Directorate-General for Regional Policy’s Information System” and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims the applicant puts forward four pleas in law.

First, it argues that the Commission infringed the principle of equal treatment by introducing a posteriori the criteria which were unknown to the tenderers and by using a discriminatory evaluation formula.

Second, the applicant contends that the evaluation committee did not provide sufficient motivation of its decision.

Third, the applicant submits that the Commission failed to observe essential procedural requirements by introducing a complementary evaluation committee.

Fourth, the applicant claims that the defendant based its evaluation of the applicant’s tender on unfounded considerations and assumptions thus committing serious and manifest errors of assessment and misusing its power.

(1) OJ 2008/S 117-155067
EN Official Journal of the European Union C 113/40

Action brought on 12 March 2009 — United Kingdom v Commission

(Case T-107/09)

2009/C 113/81

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, agent assisted by T. Eicke, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (1) in part, namely in so far as it has the effect of applying a correction to the Fruit and Vegetable aid scheme against the United Kingdom for alleged weaknesses in its control system concerning the recognition of POs created before 2002 (not providing technical means) and

— order the Commission to pay the costs of proceedings.

Pleas in law and main arguments

By means of present application, the applicant seeks the partial annulement of Commission decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) on the ground that the Commission wrongly interpreted and applied Article 11(2)(d) of Council Regulation No 2200/96 (2) in finding that the United Kingdom government had failed to observe the conditions laid down in that provision for the recognition of Producer Organisation in the fruit and vegetable sector.

The applicant contends that the Commission’s restrictive interpretation of Article 11(2)(d) of Council Regulation 2200/96 underlying the relevant aspects of the contested decision is inconsistent both with the language and with the object and purpose of that provision.

(1) Notified under document number C(2008) 7820, OJ 2008 L 340, p. 99

(2) Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organization of the market in fruit and vegetables, OJ 1996 L 297, p. 1
EN Official Journal of the European Union C 102/28

Appeal brought on 25 February 2009 by the European Parliament against the judgment of the Civil Service Tribunal delivered on 11 December 2008 in Case F-148/06, Collée v Parliament

(Case T-78/09 P)

2009/C 102/42

Language of the case: French

Parties

Appellant: European Parliament (represented by C. Burgos and A. Lukošiūtė, acting as Agents)

Other party to the proceedings: Laurent Collée (Luxembourg, Luxembourg)

Form of order sought by the appellant

— annul in its entirety the judgment of the Civil Service Tribunal under appeal;

— give final judgment in the matter by dismissing the action brought by Mr Collée as unfounded;

— make an appropriate order as to costs.

Pleas in law and main arguments

By this appeal, the Parliament seeks the annulment of the judgment of the Civil Service Tribunal (the Tribunal) of 11 December 2008 in Case F-148/06 Collée v Parliament, by which the Tribunal annulled the Parliament’s decision to award two merit points to Mr Collée under the 2004 promotion procedure.

In support of its appeal, the Parliament relies on four grounds of appeal alleging:

— a distortion of the facts and of the evidence, as the Tribunal stated that Mr Collée had not received a third merit point on the sole ground that his merits were not superior to those of officials who had obtained three points, although the comparative examination carried out with a view to responding to Mr Collée’s administrative complaint stated that his staff report was not of a level equivalent to that of officials who had obtained three points;

— failure to state reasons, on the ground that the Tribunal did not explain why it departed from earlier case-law, and contradictory reasoning, first, in paragraphs 42 and 46 as against paragraph 18 of the judgment under appeal and, secondly, in paragraphs 43 and 46 as against paragraphs 44 and 45 of that judgment;

— infringement of Article 45 of the Staff Regulations of Officials of the European Communities and of the case-law relating thereto, in so far as the requirement of superiority of merits applied by the Parliament for the award of a third point is not inconsistent with Article 45 of the Staff Regulations; thus an official must be superior in the decreasing order of merit, to the last official who received three points;