ddrg/super_eurlex huggingface dataset:
Action brought on 13 April 2010 — Niki Luftfahrt GmbH v Commission

(Case T-162/10)

(2010/C 161/72)

Language of the case: German

Parties

Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

Defendant: European Commission

Form of order sought

— Annul the contested Commission Decision C(2009) 6690 of 28 August 2009, Case COMP/M.5440 — Lufthansa/Austrian Airlines in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

— Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5440 — Lufthansa/Austrian Airlines). In that decision the Commission takes the view that, the acquisitions by Deutsche Lufthansa AG of sole control over the Austrian Airlines company — subject to the implementation of the commitments submitted by Deutschen Lufthansa AG — is compatible with the common market and the EEA Agreement.

In support of its action for annulment the applicant, which operates a privately financed airline, submits, first, that the Commission has infringed the EC Treaty (or the TFEU) and the rules of law relating to its application. It is claimed in this connection that the Commission based its decision on a market definition which hampers an assessment of all negative effects of the concentration on competition. Further, the applicant submits that the Commission incorrectly assessed the impact of the concentration in particular with regard to flight routes to Eastern Europe, so that in this respect there was a gross and manifest misappraisal. Furthermore, the Commission did not follow the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (1). According to the applicant, the Commission in particular failed to take into account that the concentration at issue has negative effects on competition in the common market, because as a result the competitiveness of the remaining competitors in the market would be significantly impeded, that there are no alternative players on the relevant market and that entry into the relevant market is not sufficiently easy. Further, the applicant states that Deutschen Lufthansa AG’s commitments which were accepted by the Commission are not suited to prevent a significant impediment to effective competition.

Second, the applicant alleges infringement of Article 253 EC (Article 296 the TFEU), inasmuch as the Commission has not stated proper reasons for the contested decision, in that it does not state on the basis of what specific arguments a restriction in competition on flight routes to Eastern Europe can be excluded. Furthermore, it is alleged that the investigation of the case was incomplete.

Third, the applicant claims that there has been a misuse of power by the Commission.

(1) OJ 2004 C 31, p. 5.
1.

The contested decision infringes Article 107(1) TFEU in that it finds that the measure at issue constitutes State aid. The applicant contends, in that regard, that the Commission has not proved that the tax measure examined favours ‘specific undertakings or the production of specific goods’, as required under Article 107(1) TFEU. The Commission merely assumes that the measure is selective on the basis of the fact that it applies only to the acquisition of shareholdings in foreign companies and not in domestic companies. The applicant considers that reasoning to be erroneous and circular: the fact that application of the measure examined — as for any other tax rule — depends on the fulfilment of certain objective requirements does not render it, in law or fact, a selective measure. In fact, the mechanical nature of the Commission’s reasoning would result in every tax measure being considered to be prima facie selective. For the sake of completeness, both a legal analysis of the measure, and the statistics produced by the Kingdom of Spain, show that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, sector or origin. Second, the prima facie different treatment under Article 12(5) TRLIS, far from constituting a selective advantage serves to place all transactions for the acquisition of shares on an equal tax footing, be those shares national or foreign; as, if, owing to the impossibility to complete cross-border mergers, the amortization of financial goodwill can only be carried out at a national level to the extent that there are rules in the tax system which allow it, Article 12(5) TRLIS does no more than extend that possibility to the purchase of shares in foreign companies. In the alternative, the Commission’s decision is disproportionate, since, its application in cases where control is taken of foreign undertakings should be, at least, equivalent to cases of national mergers and therefore justified by the nature and broad logic of the Spanish system.
Action brought on 9 April 2010 — Dow Chemical v Council

(Case T-158/10)

(2010/C 161/70)

Language of the case: English

Parties

Applicant: The Dow Chemical Company (represented by: J.-F. Bellis, R. Luff and V. Hahn, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul Council Implementing Regulation (EU) No 54/2010 (1) insofar as it concerns the applicant,

— order the Council to bear the costs.

Pleas in law and main arguments

In support of its application, the applicant puts forward a single plea in law by which it claims that the contested regulation violates Article 11(2) of the basic regulation (2), on the following grounds:

— the determination that dumping of ethanolamines from the US will continue is erroneously based on a finding of dumping during the review investigation period in relation to exporting producers representing only a very minor proportion of imports from the US; the institutions ignored the fact that the producer who accounted for the overwhelming majority of imports from the US was found not to have engaged in dumping and that, as a result, imports of ethanolamines from the US taken globally were not dumped;

— the determination that the alleged dumping of ethanolamines from the US increased after review investigation period is based on an arbitrary selection of price quotes which do not reflect the trend of prices after the review investigation period;

— the determination that spare capacity in the US will lead to an increase in exports of ethanolamines to the EU is based on a manifest error since there was no unused capacity in the US;

— the determination that the anti-dumping measures on ethanolamines from the US imposed by China since 2004 will induce the US ethanolamines exporters to sell increased quantities to the EU is contradicted by the development of trade flows since 2005;

— the determination that the possible development of demand in the US and other markets will lead US producers to shift exports to the EU is purely speculative;

— the determination that very weak prices and capacity expansions for monoethylene glycol — which, like ethanolamines, is a downstream product of ethylene oxide — would provide an incentive for producers to shift from monoethylene glycol to ethanolamines production is inconsistent with the facts on record and is vitiated by an error of assessment;

— the defendant develops a contradictory reasoning as regards the relationship between US and EU prices since they seem to argue at the same time that higher EU prices provide an incentive for US exporters to shift their sales to the EU and that lower prices in the EU force US producers to sell at dumped prices in the EU.

(1) Council Implementing Regulation (EU) No 54/2010 of 19 January 2010 imposing a definitive anti-dumping duty on imports of ethanolamines originating in the United States of America, OJ 2010 L 17, p. 1

(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)
EN Official Journal of the European Union C 195/26

Action brought on 11 May 2010 — Rautaruukki Oyj v OHIM — Manuel Vigil Pérez (MONTERREY)

(Case T-217/10)

2010/C 195/40

Language in which the application was lodged: English

Parties

Applicant: Rautaruukki Oyj (Helsinki, Finland) (represented by: J. Tanhuanpää, lawyer)

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

Other party to the proceedings before the Board of Appeal: Manuel Vigil Pérez (Madrid, 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 24 February 2010 in case R 1001/2009-2;

— Dismiss the decision of the Opposition Division No B 1173707 in its entirety;

— Allow registration of the applicant's mark ‘MONTERREY’ for all the goods in classes 6 and 19 according to applicant's Community trademark application No 5276936;

— Order the defendant to bear the costs incurred in these proceedings as well as those incurred 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 become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MONTERREY’, for goods and services in classes 6, 19 and 37

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 No 1695663 of the figurative mark ‘MONTERREY’, for services in class 37; Spanish trade mark registration No 1695662 of the figurative mark ‘MONTERREY’, for services in class 36

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal partially

Pleas in law:

The applicant advances three pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the similarity of the goods and services.

By its second plea, the applicant considers that the contested decision infringes Rule 99 of Commission Regulation No 2868/95 implementing Council Regulation No 40/94, as the Board of Appeal incorrectly assumed that the translation of an earlier right corresponded to the relevant original.
EN Official Journal of the European Union C 179/55

Action brought on 18 May 2010 — Iberdrola v Commission

(Case T-221/10)

2010/C 179/94

Language of the case: Spanish

Parties

Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez Müller and J. Domínguez Pérez, lawyers)

Defendant: European Commission

Form of order sought

— Annulment of Article 1(1) of the Decision;

— Order the Commission to pay all of the costs arising from the proceedings.

Pleas in law and main arguments

The decision which is the subject-matter of the present case is the same as in Case T-219/10 Autogrill España v Commission.

The pleas and main arguments are similar to those relied on in that case. In particular, the applicant claims:

— that the Commission committed a manifest error of assessment by finding that the measure in Article 12(5) TRLIS constitutes State aid which is incompatible with the internal market, given that it did not take account of the positive effects resulting from that measure and ignored the beneficial effect of that measure for the attainment of objectives pursued by other rules in the Treaty;

— that the Commission breached the principles of protection of legitimate expectations and of equal treatment by departing from the guidelines in the Communication on direct taxation and its administrative practice adopted in line with that communication;

— that the Commission breached the principle of sound administration — which requires it to examine, in a diligent, detailed and impartial manner, all aspects relevant to the case — by not continuing the proceeding (as it has done in respect of extra-Community acquisitions) to establish the alleged selectivity of the measure and verify, before making a finding in that regard, the precise extent of the practical obstacles to an intra-Community commercial merger;

— that the Commission has infringed its obligation to respect the scheme of the Treaty and to ensure the consistent application of the rules relating to supervision of State aid and those relating to other principles and freedoms contained in the Treaty such as the free movement of capital and the creation of the internal market;
EN Official Journal of the European Union C 209/39

Action brought on 7 April 2010 — Samskip Multimodal Container Logistics v Commission

(Case T-166/10)

()

2010/C 209/61

Language of the case: English

Parties

Applicant: Samskip Multimodal Container Logistics BV ('s-Gravenzande, Netherlands) (represented by: K. Platteau, Y. Maasdam and P. Broers, lawyers)

Defendant: European Commission

Form of order sought

— annul Commission Decision C(2010) 580 of 27 January 2010 on the financial assistance for proposals for actions submitted in the 2009 selection procedure in the European Union programme granting the Community financial assistance to improve the environmental performance of the freight transport system (Marco Polo II) (1), in so far as it selects Proposal No TREN/B4/SUB/01-2009 MP-II/6, the G2G@2XL project, for funding amounting to EUR 2 190 539;

— order the Commission to pay the costs of the procedure pursuant to Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

In support of its application, the applicant puts forward two pleas in law on the following grounds.

In its first plea, the applicant claims that the contested funding infringes the funding conditions and requirements provided by Article 5(2) of Regulation 1692/2006 as

— it causes an unacceptable distortion of competition contrary to the common interest within the market of freight forwarding services by the alternative modes of transport proposed by the G2G@2XL project, namely rail and short sea shipping from Italy, Switzerland and Austria to the United Kingdom; and

— the G2G@2XL project will not stay viable after the prescribed period of 36 months.

In its second plea the applicant claims that the contested funding infringes Article 1 of Regulation 1692/2006 as it does not contribute to the common interest goals that are pursued by the Marco Polo II Programme. The contested funding will merely result in a shift from an existing multimodal operator to another multimodal operator and not from road transport to rail transport. As a result, no extra road freight traffic will be shifted to environmentally friendly modes. Hence, the contested funding will not contribute to an actual reduction in international road freight transport and will therefore not reduce congestion nor contribute to the pursued improvement of the environmental performance of the transport system (i.e. the common interest goals that are pursued by the Marco Polo II Programme and which are provided in Article 1 of Regulation 1692/2006).

(1) Regulation (EC) No 1692/2006 of the European Parliament and of the Council of 24 October 2006 establishing the second Marco Polo programme for the granting of Community financial assistance to improve the environmental performance of the freight transport system (Marco Polo II) and repealing Regulation (EC) No 1382/2003, OJ 2006 L 328, p. 1
EN Official Journal of the European Union C 195/26

Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)

(Case T-218/10)

2010/C 195/41

Language in which the application was lodged: German

Parties

Applicant: DHL International GmbH (Bonn, Germany) (represented by: K.-U. Jonas, 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: Service Point Solutions, SA (Barcelona, 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 25 February 2010 in Case R 62/2009-2;

— Order the defendant and, if appropriate, the other party to the proceedings to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark including the word element ‘SERVICEPOINT’ for goods and services in Classes 16, 20, 35 and 39.

Proprietor of the mark or sign cited in the opposition proceedings: Service Point Solutions, SA

Mark or sign cited in opposition: Figurative mark including the word element ‘Service Point’ for goods and services in Classes 8, 9, 16, 20, 35, 38, 39 and 42; figurative mark including the word element ‘service point’ for goods and services in Class 16; and figurative mark including the word element ‘service point’ for goods and services in Classes 9 and 42.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks, and infringement of Article 76(1) and (2) of Regulation (EC) No 207/2009 since the Board of Appeal failed to have regard to various documents.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 221/55

Action brought on 16 June 2010 — H v Council and Others

(Case T-271/10)

()

2010/C 221/88

Language of the case: English

Parties

Applicant: H (Catania, Italy) (represented by: C. Mereu and M. Velardo, lawyers)

Defendants: Council of the European Union, European Commission and European Union Police Mission in Bosnia and Herzegovina (“EUPM”)

Form of order sought

— Annul the Contested Decision of 7 April 2010 and, if needed, the Decision of 30 April 2010;

— Order the defendants to pay the damages suffered by the applicant, assessed at 30 000,00 Euro; and

— Order the defendants to pay the costs of the proceedings, as well as an interest of 8 %.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Decision rendered by the European Union Police Mission (EUPM) in Bosnia and Herzegovina of 7 April 2010 and, if necessary, of the subsequent confirmation Decision of 30 April 2010, where it was decided to reassign the applicant from the main headquarters of the Mission in Sarajevo to the Regional Office in Banja Luka, as well as the downgrading of the applicant. Furthermore, the applicant seeks, pursuant to Article 340 TFEU, the award of damages in the amount of 30 000,00 Euro.

The applicant submits that the General Court has jurisdiction to rule in this case following the Order of the Civil Service Tribunal of 9 October 2006 in case F-53/06 Gualtieri v Commission.

In support of its submissions, the applicant puts forward the following pleas in law:

Firstly, the applicant claims misuse of powers, as there was no objective reason justifying the redeployment.

Secondly, the applicant claims that the Contested Decision is flawed for lack of motivation, as the European Union Police Mission in Bosnia and Herzegovina did not substantiate the operational reasons underlying the redeployment.

Thirdly, there has been a manifest error of appraisal, as there was no need to urgently redeploy a prosecutor to the Regional Office in Banja Luka.

In addition, there has been an infringement of Council Decision No 2009/906/CFSP of 8 December 2009 (1) as the Head of Mission was not entitled to reassign the staff but only to provide the management of the staff on a daily basis.

Finally, the applicant seeks the award of damages due to moral harassment.

(1) Council Decision 2009/906/CFSP of 8 December 2009 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) (OJ 2009 L 322, p. 22).
EN Official Journal of the European Union C 209/51

Action brought on 28 May 2010 — Cross Czech v Commission

(Case T-252/10)

()

2010/C 209/76

Language of the case: English

Parties

Applicant: Cross Czech a.s. (Prague, Czech Republic) (represented by: T. Schollaert, lawyer)

Defendant: European Commission

Form of order sought

— Annul Commission Decision No INFSO-02/FD/GVC/Isc D (2010) 208676 of 12 March 2010; and

— Order the Commission to pay the costs of the applicant.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Decision No INFSO-02/FD/GVC/Isc D (2010) 208676 of 12 March 2010, reference No 09-BA74-006, a letter confirming the findings of audit report B74-06 concerning the audit of the financial statements for the period from 1 February 2005 until 30 April 2008 for the projects eMapps.com, CEEC IST NET and TRANSFER EAST, concluded in the framework of the 6th EU Framework Programme for Research and Technological Development (2002-2006).

In support of its submissions, the applicant puts forward the following pleas in law:

The applicant contends that the contested decision constitutes an infringement of the Treaty or of any rule of law relating to its application, as it:

— is based on incorrect and insufficient fact finding by the Commission;

— reflects the incorrect application of the contracts relating to the projects in question, in particular in respect of the finding that the applicant committed a breach of these contracts;

— is based on manifest errors of assessment of the facts relating to the alleged breach of the contracts relating to these projects, resulting in a failure to comply with the necessary legal standards and thus in an error of law;

— is based on defects of reasoning; and