ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 211/50

Action brought on 17 July 2007 — France v Commission

(Case T-257/07)

(2007/C 211/95)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, R. Loosli and A.-L. During, Agents)

Defendant: Commission of the European Communities

Form of order sought

— Annul paragraph (3) of the Annex to Commission Regulation (EC) No 727/2007 of 26 June 2007 (1) amending Annexes I, III, VII and X to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (2), to the extent that it introduces, into Chapter A of Annex VII, paragraphs 2.3(b)(iii), 2.3(d), and 4;

— Alternatively, if the Court were to rule that this application for partial annulment is inadmissible, annul Regulation No 727/2007in its entirety;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In this action, the applicant applies for the partial annulment, or alternatively the entire annulment, of Commission Regulation (EC) No 727/2007 of 26 June 2007, authorising less restrictive measures of surveillance and eradication in relation to certain spongiform encephalopathies, as compared with those laid down by Regulation (EC) No 999/2001.

In support of its action, the applicant claims that the contested provisions must be annulled because they infringe the precautionary principle in relation to both the assessment and management of the risk.

The applicant claims that the Commission has failed to have regard to the precautionary principle at the stage of assessment of the risk by ignoring the scientific uncertainties which, in its opinion, continue to surround both the risk of transmission to human beings of transmissible spongiform encephalopathies other than bovine spongiform encephalopathy, and the reliability of the tests on which the Commission based its decision to adopt the contested Regulation.

In the opinion of the applicant, the Commission has also failed to have regard to the precautionary principle at the stage of management of the risk in that the contested provisions are not capable of containing the risk and may even increase it. The applicant considers, in addition, that the increase in the risk caused by the contested provisions cannot be justified by the advantages expected from them.

(1) OJ L 165, p. 8.

(2) OJ L 147, p. 1.
EN Official Journal of the European Union C 8/17

Action brought on 31 October 2007 — Kingdom of Spain v Commission of the European Communities

(Case T-398/07)

(2008/C 8/32)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 4 July 2007 relating to a proceeding under Article 82 EC (Case COMP/38.784 — Wanadoo España v Telefónica) and

— Order the defendant to pay the costs

Pleas in law and main arguments

The present action is brought against the decision of 4 July 2006 relating to a proceeding under Article 82 EC (Case COMP/38.784 — Wanadoo España v Telefónica) in which the Commission imposed a fine of EUR 151 875 000 on Telefónica, S.A. and jointly and severally on Telefónica de España S.A.U., for an infringement of Article 82 EC. According to the Commission, from September 2001 until December 2006 both companies charged unfair tariffs in the form of disproportion between their wholesale and retail broadband access prices.

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

— Breach of the duty to cooperate laid down in Article 10 EC and in Article 7(2) of Directive 2002/21/EC (1) in so far as the Commission did not give the Spanish national regulatory authority the opportunity to collaborate with it, for the purposes of considering the means which might have enabled the alleged infringement to be resolved, in the most effective way possible.

— Infringement of Article 82 EC on account of manifest errors of assessment as regards the indispensability of the wholesale products, the calculation of costs and the effects of Telefónica's behaviour on competitors and consumers.

— Ultra vires application of Article 82 EC, since the contested decision impinges on the regulatory framework for current electronic communications in force in Spain, and thus upsets the balance between ex ante regulation and competition rules. Furthermore, inconsistency of the results obtained by the Commission with international experience and the reality of the Spanish market, impeding the Spanish national regulatory authority from attaining the objectives set out in that regulatory framework, and breach of the principle of specificity.

— Breach of the principle of legal certainty, since the contested decision implies an ex post change in the concept of the regulatory framework as defined ex ante.

— Breach of the principle of legitimate expectation with respect to Telefónica, and with respect to the rest of the operators in that market, by failing to comply with the regulatory framework in a matter that had already been regulated by the Commission for the Telecommunications Market.

(1) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ L 108, 24.4.2002, p. 33).
EN Official Journal of the European Union C 297/43

Action brought on 24 September 2007 — Evropaïki Dynamiki v Commission

(Case T-377/07)

(2007/C 297/87)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of the Direction General for Informatics to reject the bid of the applicant — filed in response to the open Call for Tender ENTR/05/86 — Content Interoperability for European eGovernment Services (OJ S 128, 8.7.2006) communicated to the applicant by letter dated 13 July 2007 and to award the contracts to the successful contractor;

— order the Commission (DIGIT) to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected;

— order the Commission (DIGIT) to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 3,5 million for lot 2.

Pleas in law and main arguments

The applicant submitted a bid in response to the defendant's call for an open tender for the contract ‘content interoperability technologies for European eGovernment services’ (OJ 2006/S 128-136080). The applicant contests the decision to reject its bid and to award the contract to another bidder.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-300/07 Evropaïki Dynamiki v Commission (1).

(1) JO 2007 C 235, p. 22.
EN Official Journal of the European Union C 22/48

Action brought on 23 November 2007 — Bodegas Montebello v OHIM — Montebello (MONTEBELLO RHUM AGRICOLE)

(Case T-430/07)

(2008/C 22/91)

Language in which the application was lodged: Spanish

Parties

Applicant: Bodegas Montebello, S.A. (Montilla, Spain) (represented by: T. Andrade Boué, M.I. Lehmann Novo, and A. Hernández Lehmann, 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: Montebello (limited company) (Guadalupe, France)

Form of order sought

— annulment of OHIM's decision of 7 September 2007 in Case R 223/2007-2;

— rejection of Community trade mark No 2.666.386;

— order OHIM to pay the costs including those of the intervener.

Pleas in law and main arguments

Applicant for a Community trade mark: Montebello (limited company)

Community trade mark concerned: figurative mark ‘MONTEBELLO Rhum Agricole’ (application No 2.266.386) for goods in Class 33 (alcoholic beverages, except beers).

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

Mark or sign cited in opposition: Spanish word mark ‘MONTEBELLO’ (No 1.148.196) for goods in Class 33.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: decision of the Opposition Division upheld and annulled.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 8/19

Action brought on 6 November 2007 — Kaul v OHIM — Bayer (ARCOL)

(Case T-402/07)

(2008/C 8/34)

Language of the case: English

Parties

Applicant: Kaul GmbH (Elmshorn, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bayer AG (Leverkusen, Germany)

Form of order sought

— The decision of the Second Board of Appeal of 1 August 2007 in Case R 782/2000-2, pertaining to the opposition based on Community trade mark registration No 49 106 ‘CAPOL’ against Community trade mark application No 195 370 ‘ARCOL’, be annulled;

— the opposition against Community trade mark application No 195 370 ‘ARCOL’, be granted;

— the defendant pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: Bayer AG

Community trade mark concerned: The Community word mark ‘ARCOL’ for goods in Classes 1, 17 and 20 — application No 195 370

Proprietor of the mark or sign cited in the opposition proceedings: Kaul GmbH

Mark or sign cited: The Community word mark ‘CAPOL’ for goods in classes 1

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 63(6), 73, and 74 of Council Regulation (EC) No 40/94(‘the CTMR’).

According to the applicant, the Board of Appeal failed to take into account the obligations laid down in Articles 63(6) and 73 of the CTMR by disregarding the guidance provided by the Court of Justice in Case C-29/05 P and by refusing to exercise any discretion under Article 74(2) of the CTMR. Furthermore, the applicant contends that the Board failed to state reasons on which it based its decision.
EN Official Journal of the European Union C 37/26

Action brought on 30 November 2007 — Spa Monopole v OHIM — De Francesco Import (SpagO)

(Case T-438/07)

(2008/C 37/41)

Language in which the application was lodged: English

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, E. Cornu, E. De Gryse and D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: De Francesco Import GmbH (Nürnberg, Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office of 13 September 2007 in Case R 1285/2006-2 and

— order the Office to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: De Francesco Import GmbH

Community trade mark concerned: The word mark ‘SpagO’ for goods in class 33 — application No 2 320 844

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

Mark or sign cited: The Community, national and international word and figurative marks ‘SPA’, ‘SPA Citron’ and ‘SPA Orange’ for goods in class 32

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94, as the Board of Appeal underestimated the reputation of SPA in the Benelux and did not take the following factors sufficiently into account:

— the oral and visual similarities of the trade marks in question;

— the fact that the use of the trade mark ‘SpagO’ for alcoholic beverages would be detrimental to the reputation of the mineral water ‘SPA’, which built its reputation on its high quality, purity and beneficial effects upon health;
EN Official Journal of the European Union C 51/56

Action brought on 22 December 2007 — Romania v Commission of the European Communities

(Case T-483/07)

(2008/C 51/102)

Language of the case: Romanian

Parties

Applicant: Romania (represented by: Aurel Ciobanu-Dordea, Agent, Emilia Gane and Dumitra Mereuță, Advisers)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claims that the Court of First Instance should:

— Annul the Commission's decision (C(2007) 5240 final) of 26 October 2007 concerning the national allocation plan for greenhouse gas emission certificates for the year 2007, notified by Romania pursuant to Directive 2003/87/EC of the European Parliament and of the Council;

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

Pleas in law and main arguments

By the contested decision, the Commission rejected in part the national allocation plan for greenhouse gas emission certificates for the year 2007, notified by Romania pursuant to Directive 2003/87/EC (1), reducing by 9,080765 million tonnes of CO2, equivalent per year the overall number of certificates that will be allocated for the Community scheme and establishing that the average overall annual volume covered by the emission quotas that may be allocated will not exceed 74,836235 million tonnes.

In support of its action, the applicant submits as follows:

— the Commission has failed to comply with Article 9(1) and (3) and Article 11(1) of Directive 2003/87/EC, in that it has established, with binding force, on the basis of a method of its own, the overall volume of the emission quotas that can be allocated by Romania, thus encroaching upon the latter's sphere of competence;

— the Commission has applied a method wholly lacking in transparency for the purposes of determining the overall volumes of the emission quotas, thus infringing not only Article 9(1) of Directive 2003/87/EC, but also Article 9(3) thereof;

— in applying its own method, the Commission has infringed the principle of non-discrimination;

— the Commission has failed to comply with Article 9(3) of Directive 2003/87/EC and Article 253 EC, in that it has failed to give adequate reasons for decision C(2007) 5240 final.

(1) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).
EN Official Journal of the European Union C 64/48

Action brought on 20 December 2007 — Productos Asfálticos (Proas) v Commission

(Case T-495/07)

(2008/C 64/79)

Language of the case: Spanish

Parties

Applicant: Productos Asfálticos (Proas), SA (Madrid, Spain) (represented by: C Fernandez Vicién, P Carmona Botana and A. Pereda Miquel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision [C(2007) 4441],or alternatively, reduce the fine imposed on Productos Asfálticos SA, and

— Order the Commission to pay all the costs of these proceedings.

Pleas in law and main arguments

The action is directed against Commission Decision C(2007) 4441 final of 3 October 2007in the Case COMP/38710 — Bitumen Spain. In the contested decision, the Commission declared that the applicant, together with other companies, had infringed Article 81 EC by having taken part, over a certain period, in a set of agreements and concerted practices in the market for penetration bitumen, namely agreements for sharing the market and coordinating prices. In respect of those infringements the Commission imposed a fine for which the applicant and another company are jointly and severally liable.

In support of its claims, the applicant first alleges that the Commission erred in the assessment of the facts. In that context, the applicant considers that the Commission incorrectly assessed the seriousness of the infringement and the position of the applicant in the cartel, with particular reference to its specific weight in the market and the assessment that it was co-leader of the cartel.

Secondly, the applicant complains that the Commission infringed the applicable law. The applicant claims that the contested decision infringes the principle of equal treatment by incorrectly applying the Notice on cooperation of 2002 (1), infringes the principle of sound administration by not having completed the procedure within a reasonable time and sets a fine which is above the lawful limit established in Regulation (EC) No 1/2003 (2), thereby infringing the principle of proportionality.

In addition, the applicant considers that the Commission infringed the obligation to state reasons.

(1) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002, C 45, p. 3).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 64/62

Action brought on 11 January 2008 — Katjes Fassin v OHIM (Yoghurt-Gums)

(Case T-25/08)

(2008/C 64/101)

Language in which the application was lodged: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich, Germany) (represented by R. Uecker, 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 25 October 2007 (Case R 1322/2006-4);

— Order the defendant to pay the costs of the action, including those incurred during the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘Yoghurt-Gums’ for goods in Classes 29, 30 and 32 (Application No 4 929 808).

Decision of the Examiner: Partial refusal to register.

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 relation to the goods in Class 30 which are still at issue in the proceedings.

(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 92/30

Action brought on 21 January 2008 — Wellcome Foundation v OHIM — Serono Genetics Institute (FAMOXIN)

(Case T-27/08)

(2008/C 92/63)

Language in which the application was lodged: English

Parties

Applicant: The Wellcome Foundation Ltd (Greenford, United Kingdom) (represented by: R. Gilbey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Serono Genetics Institute SA (Evry, France)

Form of order sought

— Annul the decision of the First Board of Appeal OHIM dated 19 November 2007 (Case R 9/2007-1) and declare the request for invalidation brought by the appellant well founded;

— annul all cost orders made against the appellant by the Office for Harmonisation in the Internal Market and order the latter to bear the costs of the appellant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘FAMOXIN’ for goods and services in class 5 — Community trade mark No 2 491 298

Proprietor of the Community trade mark: Serono Genetics Institute SA

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The national word marks ‘LANOXIN’ for goods in class 5

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 52 and 56(2) and (3) of Council Regulation No 40/94, as the Board of Appeal found the earlier trade marks to be used for ‘pharmaceutical preparations for cardiovascular illnesses’ and not ‘pharmaceutical preparations’ and as it assessed the relevant market, the relevant public, the level of attentiveness of the different parts of the relevant public and the similarity of the conflicting trade marks and goods incorrectly.
EN Official Journal of the European Union C 79/30

Action brought on 23 January 2008 — Winzer Pharma v OHIM — Oftaltech (OFTASIL)

(Case T-30/08)

(2008/C 79/59)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Oftaltech S.A. (L'Hospitalet de Llobregat, Spain)

Forms of order sought

— Annulment of the decision of the Board of Appeal of OHIM of 29 October 2007 (R 599/2007-2) and the decision of the Opposition Division of OHIM of 19 February 2007 (B 925 554);

— rejection of Community trade mark application No 4 229 274 ‘OFTASIL’;

— holding of oral proceedings;

— an order that OHIM pays the costs of the proceedings;

— in the alternative, a referral of the case back to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Oftaltech S.A.

Community trade mark concerned: the figurative trade mark ‘OFTASIL’ for goods in Class 5 (application No 4 229 274)

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

Mark or sign cited in opposition: the word mark ‘Ophtal’ for goods in Classes 5 and 10 (Community trade mark No 489 948), the word mark ‘Ophtal’ for goods in Class 5 (German trade mark No 800 702) and the word mark ‘OPHTAN’ for goods in Classes 5, 29 and 30 (German trade mark No 303 349 033)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) 40/94 (1) and of the principles to be applied under this provision to examine whether there is a likelihood of confusion.

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