ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/58

Action brought on 16 November 2009 — CheapFlights International v OHIM — Cheapflights (Cheapflights)

(Case T-461/09)

2010/C 24/104

Language in which the application was lodged: English

Parties

Applicant: CheapFlights International Ltd (Ballybofey, Ireland) (represented by: H. Hartwig and A. von Mühlendahl, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cheapflights Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 August 2009 in case R 1607/2007-4;

— Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Opposition Division of the defendant of 10 August 2007 in opposition proceedings B 849 150;

— Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it decide to become an intervener in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark in black and white “Cheapflights”, for services in classes 38, 39, 41, 42, 43 and 44

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

Mark or sign cited: Irish trade mark registration of the figurative sign in colour “CheapFlights”, for services in classes 35, 36, 38, 39, 41, 42, 43 and 44; Irish trade mark application of the word mark “CHEAPFLIGHTS”, for services in classes 35, 39 and 43; Irish trade mark registration of the word mark “CHEAPFLIGHTS”, for services in classes 38, 41, 42 and 44; Irish trade mark registration of the figurative sign “CheapFlights.ie”, for service in classes 35, 39, 41, 42 and 43; International trade mark registration of the figurative sign “CheapFlights”, for services in classes 35, 38, 39 and 42

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

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition in its entirety

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly held that there was no likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 51/45

Action brought on 30 December 2009 — Hubei Xinyegang Steel v Council

(Case T-528/09)

2010/C 51/82

Language of the case: English

Parties

Applicant: Hubei Xinyegang Steel Co. Ltd (represented by: F. Carlin, Barrister, N. Niejahr, Q. Azau and A. MacGregor, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul the Council Regulation (EC) No 926/2009 of 24 September 2009 imposing a definitive anti–dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China (1) to the extent that it imposes anti–dumping duties on exports by the applicant and collects provisional duties imposed on such exports or, alternatively, to annul the said regulation to the extent that it collects the provisional duties imposed on the applicant;

— Order the Council to pay its own costs and the costs of the applicant in connection with these proceedings.

Pleas in law and main arguments

By means of present application the applicant seeks the annulment of Council Regulation (EC) No 926/2009 of 24 September 2009 imposing a definitive anti–dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China, in as far as it concerns the applicant.

In support of its application the applicant puts forward three pleas in law.

First, it claims that the Council made a manifest error of appraisal of the facts when identifying the ‘products concerned’ by defining over–simplified product categories. In addition, the applicant submits that the Commission made an inappropriate comparison with US-produced goods.

Second, the applicant contends that the Council breached Article 9(5) of the basic regulation (2) by withdrawing the applicant’s IT status in the contested regulation although that status had initially been granted to the applicant by the Commission during the administrative procedure prior to the publication of the provisional regulation (3).

Third, the applicant claims that the Council infringed Articles 9(4) and 10(2) of the basic regulation by imposing a definitive duty and deciding to definitively collect the provisional duty imposed on exports of the “products concerned” by the applicant to the EU, because these decisions were based on manifest errors of assessment as to the existence of a threat of material injury.

(1) OJ L 262, p. 19

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)

(3) Commission Regulation (EC) No 289/2009 of 7 April 2009 imposing a provisional anti–dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in the People's Republic of China, OJ L 94, p. 48
EN Official Journal of the European Union C 51/35

Appeal brought on 9 December 2009 by Petrus Kerstens against the judgment of the Civil Service Tribunal delivered on 29 September 2009 in Case F-102/07, Kerstens v Commission

(Case T-498/09 P)

2010/C 51/67

Language of the case: French

Parties

Appellant: Petrus Kerstens (Overijse, Belgium) (represented by C. Mourato, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Set aside the judgment under appeal;

— Refer the case back to the Civil Service Tribunal of the European Union;

— Order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant requests the Court to set aside the judgment of the Civil Service Tribunal (CST) of 29 September 2009, delivered in Case F-102/07 Kerstens v Commission, by which the CST dismissed as unfounded an action seeking the annulment of various Commission decisions concerning the award to the applicant of directorate general priority points (PPDG) and/or priority points in recognition of additional tasks carried out in the interests of the institution (PPII) under the 2004, 2005 and 2006 promotion exercises.

In support of his appeal, the applicant submits two grounds of appeal alleging

— that the CST erred in law in the application of the principle of equal treatment, of Article 5 of the General Provisions for implementing Article 45 of the Staff Regulations and of the criteria laid down by the director of the Office for the Administration and Payment of Individual Entitlements in respect of the award of priority points for the 2005 promotion exercise under the abovementioned provision, and that the evidence was distorted;
Action brought on 21 October 2009 — Campailla v Commission

(Case T-429/09)

(2010/C 161/66)

Language of the case: French

Parties

Applicant: Massimo Campailla (Boulogne-sur-Mer, France) (represented by: P. Goergen, lawyer)

Defendant: European Commission

Form of order sought

— Order the Commission to make good damage suffered by the applicant as a result of the Commission’s refusal to take measures following his complaint regarding the violation of his fundamental rights by the Cameroon authorities.

Pleas in law and main arguments

By the present action, the applicant seeks compensation for the damage allegedly suffered as a result of the Commission decisions, contained in letter D3 *3/2004/D/4809 of 30 July 2004 and in letter D3 D*3/2004/D/5438 of 9 September 2004, sent to the applicant, in which the Commission refused to take measures following his complaint regarding the violation of his fundamental rights by the Cameroon authorities.

In support of his action, the applicant raises pleas alleging the unlawfulness of the decision as a result of distortion the facts and misuse of powers and the infringement of provisions and principles of the EC Treaty and EU Treaty as well as fundamental rights guaranteed by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (inter alia: principles of legal certainty, legitimate expectations, sound administration, non-discrimination, good governance, compliance with the essential procedural requirements, prohibition of inhuman and degrading treatment).
Amendment to the notice concerning Case T-507/10 in the Official Journal

( Official Journal of the European Union C 13 of 15 January 2011, p. 28 )

2011/C 72/61

The amended notice concerning Case T-507/10 Uspaskich v European Parliament in the Official Journal is as follows:

Action brought on 28 October 2010 — Viktor Uspaskich v European Parliament

(Case T-507/10)

2011/C 72/61

Language of the case: Lithuanian

Parties

Applicant: Viktor Uspaskich (Kėdainiai, Lithuania) (represented by Vytautas Sviderskis, lawyer)

Defendant: European Parliament

Form of order sought

— Annul the Decision of the European Parliament of 7 September 2010 No P7_TA(2010)0296 on the request for waiver of the immunity of Viktor Uspaskich;

— Order the defendant to pay EUR 10 000 for the non-material damage suffered;

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

Pleas in law and main arguments

The applicant bases his application on four pleas in law.

First of all, the applicant submits that the defendant infringed his rights of defence and the principle of good administration in procedure 2009/2147 (IMM). The European Parliament refused to hear the applicant during the procedure for waiver of his immunity both in the Committee on Legal Affairs and during the plenary session. It failed to take account of the majority of the applicant’s arguments and did not answer any of them.

Second, the European Parliament adopted the contested decision on an incorrect legal basis and infringed point (a) of the first paragraph of Article 9 of the Protocol on the Privileges and Immunities of the European Union because it relied on a clearly incorrect interpretation of the first and second paragraphs of Article 62 of the Lithuanian Constitution. The applicant refers to the judgment of the General Court of 19 March 2010 in Case T-42/06 Gollnisch v Parliament, in which the Court held that there had been an analogous infringement by the European Parliament.

Third, the defendant failed to observe the fumus persecutionis principle and committed a manifest error of assessment when considering it. The defendant entirely disregarded its previous decisions regarding fumus persecutionis. The European Parliament failed, moreover, to take into account the fact that at the time of the decision to bring a criminal prosecution a political leader was not responsible for infringements connected with administration, and that material from the preliminary investigation had been published.

Fourth, the defendant infringed the applicant’s right to submit a request to defend his immunity in accordance with Rule 6(3) of the Rules of Procedure of the European Parliament. It refused to examine the applicant’s request that it defend his immunity on the ground that the measure requiring him to pay a security of EUR 436 000 is disproportionate to the potential maximum fine for the criminal offence with which he is charged.
EN Official Journal of the European Union C 80/38

Action brought on 28 January 2010 — Netherlands v Commission

(Case T-29/10)

2010/C 80/63

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels and Y. de Vries, Agents)

Defendant: European Commission

Form of order sought

— annul in part the Commission Decision of 18 November 2009 in Case No C 10/2009 (ex. N 138/2009) — Netherlands/aid for ING Groep N.V.;

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

Pleas in law and main arguments

In the contested Decision, the Commission found that certain measures taken by the Netherlands State in regard to ING Groep N.V. constitute State aid within the meaning of Article 107(1) TFEU, and it declared that aid to be compatible with the common market, subject to certain commitments. According to the Decision, the modification of the repayment terms in respect of EUR 5 billion of the capital injection represents additional aid.

The application is directed against the first paragraph of Article 2 of the Decision, which is based on, inter alia, the Commission’s finding that the modification of the repayment terms in respect of EUR 5 billion of the capital injection involves State aid.

First, the applicant submits that the Decision is contrary to Article 107 TFEU in so far as the Commission found in the Decision that the modification of the repayment terms concerning the holding in the core capital of ING constituted EUR 2 billion of additional State aid in favour of ING. In the applicant’s view, the Commission erred, for the following reasons, in classifying the modification of the repayment terms as State aid:

— In so far as there is any question of State aid, this consists, according to the Decision, in the full shareholding in the core capital of ING; a modification of the terms under which that aid can be repaid cannot, in addition to that shareholding, constitute State aid.

— The modification of the repayment terms ought to have been included by the Commission in its appraisal of the shareholding in the core capital, and should not have been appraised separately.

— In the event that the Commission was in fact entitled to appraise the modification of the repayment terms itself in the light of the rules on State aid, it committed a number of errors in that regard.

— In its appraisal, the Commission wrongly failed to take account of the fact that one of the purposes of the modification of the repayment terms was to bring those terms further into line with market-compliant repayment terms.

Second, the applicant submits that the Decision is at variance with the principle of the duty of care in that the Commission failed to collect the necessary information concerning the relevant facts.

Third, the applicant takes the view that the Decision infringes the principle that reasons must be given, inasmuch as the Commission failed to adduce conclusive reasons for its view that the modification of the repayment terms constituted additional aid.
EN Official Journal of the European Union C 100/64

Action brought on 16 February 2010 — Flaco Geräte v OHIM — Delgado Sánchez (FLACO)

(Case T-74/10)

2010/C 100/94

Language in which the application was lodged: English

Parties

Applicant: Flaco Geräte GmbH (Gütersloh, Germany) (represented by: M. Wirtz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Jesús Delgado Sánchez (Socuellamos, Spain)

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 23 November 2009 in case R 86/2009-2; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FLACO’, for goods in classes 7, 8, 9 and 11

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: Spanish trade mark registration of the mark ‘FLACO’, for goods in class 7

Decision of the Opposition Division: Partially rejected the application for the Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 207/2009 as the Board of Appeal wrongly took into account a wrong translation of the goods covered by the mark cited in the opposition proceedings; infringement of Article 42(2) and (3) of Council Regulation No 207/2009 as the Board of Appeal did not take into account the plea of non use filed by the applicant.
EN Official Journal of the European Union C 100/56

Action brought on 5 February 2010 — Riesenthel v OHIM — Dynamic Promotion (Hampers, crates and baskets)

(Case T-53/10)

2010/C 100/83

Language in which the application was lodged: German

Parties

Applicant: Peter Riesenthel (Gilching, Germany) (represented by: E. Aliki Busse, 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: Dynamic Promotion Co. Ltd (Bangkok, Thailand)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 November 2009 and 10 December 2009 (Case R 621/2009-3);

— in the alternative, order restitutio in integrum in relation to the applicant;

— 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 design No 2 179 550 001 for ‘Hampers, crates and baskets’

Proprietor of the Community trade mark: Dynamic Promotion Co. Ltd

Applicant for the declaration of invalidity: Peter Riesenthel

Decision of the Cancellation Division: Dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: Rejection of the appeal as inadmissible

Pleas in law: Infringement of the right to be heard and incorrect exercise of discretion by the Board of Appeal
EN Official Journal of the European Union C 100/64

Action brought on 24 February 2010 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE)

(Case T-81/10)

2010/C 100/95

Language in which the application was lodged: Spanish

Parties

Applicant: Tempus Vade, S.L. (Madrid, Spain) (represented by: A. Gómez López, 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: Palacios Serrano (Alcobendas, Spain)

Form of order sought

— Declare that the decision of 7 January 2010 of the Fourth Board of Appeal of OHIM in Case R 944/2006-1 does not comply with Regulation (EC) No 207/2009 on the Community trade mark, in so far as it annuls the decision of the Opposition Division of OHIM of 28 May 2008, made in opposition proceedings No B 1009607 and, accordingly, registers Community trade mark No 5 016 704 AIR FORCE in respect of goods in Class 14.

— Declare that registration of the Community trade mark No 5 016 704 AIR FORCE is refused pursuant to the prohibition on registration provided for in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009.

— Order the defendant and, if appropriate, the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Juan Palacios Serrano.

Community trade mark concerned: Word mark ‘AIR FORCE’ (application No 5 016 704) in respect of goods in Class 14.

Proprietor of the mark or sign cited in the opposition proceedings: Tempus Vade, S.L.

Mark or sign cited in opposition: Community word mark ‘TIME FORCE’ (application No 395 657) in respect of goods in Classes 14, 18 and 25; and four other Community figurative marks which contain the word element ‘TIME FORCE’: application No 398 776 in respect of goods in Class 14, 18 and 25; application No 3 112 133 in respect of goods in Classes 3, 8, 9, 14, 18, 25, 34, 35 and 37, and applications Nos 1 998 375 and 2 553 667 in respect of goods in Class 14.

Decision of the Opposition Division: Opposition upheld in its entirety.

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition.

Pleas in law: Incorrect application of Article 8(1)(b) and (5) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 113/67

Action brought on 3 March 2010 — Nordzucker v Commission

(Case T-100/10)

2010/C 113/100

Language of the case: German

Parties

Applicant: Nordzucker AG (Brunswick, Germany) (represented by: M. Niestedt, lawyer)

Defendant: European Commission

Form of order sought

— Annul Commission Regulation (EC) No 1193/2009; (1)

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant puts forward the following pleas in law in support of its action:

— Lack of competence of the Commission to adopt a regulation relating to production levies for sugar marketing years 2002/2003 to 2005/2006 since the legal basis for the regulation was one that is no longer in force;

— Infringement of essential procedural requirements in so far as a different procedure for the adoption of the contested regulation should have been selected, and the participation rights of the Council and of the European Parliament have thus been disregarded;

— Failure to have regard to the judgment of the Court of Justice in Joined Cases C-5/06 and C-23/06 to C-36/06 Zuckerfabrik Jülich and Others [2008] ECR I-3231 in so far as, in the contested regulation, the Commission arbitrarily also changed the ‘total amount of refunds’ parameter in the calculation of production levies, even though this parameter was not the object of the Court’s examination;

— Infringement of the prohibition of retroactivity by the subsequent amendment — only introduced by Regulation No 1193/2009 — of the total amount of refunds for sugar marketing years that had already been completed.

(1) Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321, p. 1).