ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 129/19

Action brought on 6 April 2009 — Nike International v OHIM — Muñoz Molina (R10)

(Case T -137/09)

2009/C 129/34

Language in which the application was lodged: Spanish

Parties

Applicant: Nike International Ltd (Oregon, United States) (represented by: M. de Justo Bailey, 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: Aurelio Muñoz Molina (Santa Pola, Spain)

Form of order sought

— Amend the contested decision with regard to the inadmissibility of the appeal, finding that that appeal is admissible, and order the Board of Appeal act in accordance therewith and examine the substance of the appeal;

— In the alternative, find infringement by the Board of Appeal and the Opposition Division of Article 73 of Regulation No 40/94 and the other provisions applicable, ordering its retroactive application to the file to remedy the lack of opportunity of the applicant (Nike International Ltd) to correct the anomalies as assignee of the prior right and/or, at the very least, the correct notification of the Decision to the representative of the preceding proprietor (DL Sports & Marketing Ltda.).

Pleas in law and main arguments

Applicant for a Community trade mark: Aurelio Muñoz Molina.

Community trade mark concerned: Word mark ‘R10’ (application for registration No 4 813 713) for goods and services in Classes 18, 25 and 35.

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

Mark or sign cited in opposition: Unregistered Spanish mark ‘R10’.

Decision of the Opposition Division: Rejection of the opposition on procedural grounds and, specifically, for infringement of the provisions of Article 58 of Council Regulation (EC) No 40/94 on the Community trade mark, (1) and of Rule 49(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark. (2)

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

Pleas in law: Incorrect assessment of the conditions for admissibility of the appeal, breach of the duty to give reasons and breach of the right to a fair hearing.

(1) OJ 1994 L 11, p. 1.

(2) OJ 1995 L 303, p. 1.
EN Official Journal of the European Union C 153/39

Action brought on 30 January 2009 — Al Barakaat International Foundation v Commission

(Case T-45/09)

2009/C 153/77

Language of the case: Swedish

Parties

Applicant: Al Barakaat International Foundation (Spånga, Sweden) (represented by: L. Silbersky and T. Olsson, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 1190/2008 in so far as it concerns the Al Barakaat International Foundation;

— order the Commission to pay the costs of the proceedings in an amount to be indicated later.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, (1) by virtue of which the applicant is to be placed on the list of persons and entities whose funds and economic resources are frozen in accordance with Regulation No 881/2002. (2) Regulation No 1190/2008 was adopted after the Court of Justice delivered its judgment of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-0000, which annulled the previous list that included the applicant’s name.

In support of its action the applicant relies on the following pleas in law:

The Commission exceeded its powers, since the duty to amend defects in the administrative procedure does not give the Commission power to amend or supplement the list.

Infringement of the duty to state reasons, the principle of solicitude, the rights of the defence and the right to effective legal remedies, since the reasoning as to why the applicant should remain on the list failed to include precise information regarding the alleged collaboration between the applicant on the one hand and Al-Qaida, Usama Bin Ladin and the Taliban on the other.

Infringement of the prohibition of retroactive legislation, since the inclusion of the applicant on the list was based on events which occurred 10 years ago.

Infringement of the principle of proportionality, since the freezing measures laid down in the contested regulation constitute a disproportionate and unacceptable interference which affects the right to respect for a person’s property.

(1) OJ 2008 L 322, p. 25.

(2) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).
EN Official Journal of the European Union C 141/48

Action brought on 30 March 2009 — B Antonio Basile 1952 and I Marchi Italiani v OHIM

(Case T-134/09)

2009/C 141/100

Language in which the application was lodged: Italian

Parties

Applicants: B Antonio Basile 1952 (Giugliano, Italy) and I Marchi Italiani (Naples, Italy) (represented by: G. Militerni, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Osra SA (Rovereta, Italy)

Form of order sought

— Annul the decision of the Second Board of Appeal dated 09.01.2009, notified to the applicants in the present case on 30.01.2009 in proceedings R 1436/2007-2, between Antonio Basile, operating as a sole proprietorship ‘B Antonio Basile 1952’ and Osra S.A., which upheld the decision of the Cancellation Division, which allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’, following the action brought by Osra S.A.;

— Declare the registration of the mark ‘B Antonio Basile 1952’ to be valid and effective as from the date of filing of the application and/or registration of that mark;

— 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: Figurative mark containing the wording ‘B Antonio Basile 1952’ (Community trade mark application No 1 462 555), for goods in Classes 14, 18 and 25

Proprietor of the Community trade mark: The applicants.

Applicant for the declaration of invalidity: Osra S.A.

Trade mark right of applicant for the declaration: Word mark ‘BASILE’ (Italian registration No 287 030 and international registration No R 413 396 B) for goods in Class 25.

Decision of the Cancellation Division: Declared the trade mark in question to be partially invalid in relation to goods in Class 25.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: The grounds put forward in the present action are the same as those in Case T-133/09.
EN Official Journal of the European Union C 153/44

Action brought on 27 April 2009 — Biofrescos — Comércio de Produtos Alimentares Lda v Commission of the European Communities

(Case T-159/09)

2009/C 153/86

Language of the case: Portuguese

Parties

Applicant: Biofrescos — Comércio de Produtos Alimentares Lda (Linda-a-Velha, Portugal) (represented by: A. Magalhães e Menezes, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission’s decision of 16 January 2009 rejecting the applicant’s request for remission of import duties in the sum of EUR 41 271,09 and ordering that that amount be entered into the accounts a posteriori;

Pleas in law and main arguments

Between September 2003 and February 2005, the applicant imported a number of consignments of frozen prawns from Indonesia, for which it sought remission of import duties pursuant to Articles 220(2)(b), 236 and 239(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. (1)

The applicant submits that the Commission infringed, at the very least, those provisions in so far as: first, it made no observations on any of the arguments put forward by the applicant in its request for remission of import duties; secondly, the reasons given by the Commission were inadequate, misleading and incomprehensible; thirdly, it misinterpreted the error made by the Indonesian authorities themselves; fourthly and last, the Commission deemed to be proved facts which are not actually proved, the burden of proving which fell, subsequently, to the bodies involved in the procedure and not the applicant.

(1) OJ 1996 L 97, p. 38.
EN Official Journal of the European Union C 180/59

Action brought on 28 May 2009 — Italy v Commission and EPSO

(Case T-218/09)

2009/C 180/109

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendants: Commission of the European Communities and European Personnel Selection Office (EPSO)

Form of order sought

— Annul the notice of admission tests and notice of open competition EPSO/AST/91/09 to form a reserve list for the recruitment of assistants (AST 3) in the offset printing field;

— annul the notice of admission tests and notice of open competition EPSO/AST/92/09 to form a reserve list for the recruitment of assistants (AST 3) in the pre-press field.

Pleas in law and main arguments

The applicant challenges the notices of open competition referred to above in so far as some of the tests that are required to be taken must necessarily be taken in German, English of French.

In support of its challenge, the Italian Republic relies on forward the following grounds:

— infringement of Article 290 EC, which confers exclusive competence on the Council, acting unanimously, to determine the rules governing the languages of Community acts. The applicant submits in that connection that in the case at issue EPSO effectively assumed the role of the Council in determining the rules governing the languages of the two competitions by requiring that, as a second language and as the language in which the admission tests, two out of three of the written tests and the oral tests were to be taken, the candidates were obliged to choose between English, French and German, all the other languages of the Member States being excluded;

— infringement of Article 12 EC, Article 22 of the Charter of Fundamental Rights of the European Union, Articles 1 and 6 of Regulation No 1/58 (1) and Article 28 of the Staff Regulations. It is submitted in this regard that all the national languages of the Member States have the status of official languages and working languages of European Union. A notice of open competition cannot therefore arbitrarily limit to just three the languages which candidates may choose from as a second language and as the language in which correspondence and the competition tests will be conducted. Moreover, Article 28 of the Staff Regulations requires candidates to have knowledge of a second Community language in addition to their own national language and does not confer any special status on English, French or German.

Finally, the applicant pleads infringement of Article 253 EC and of the principle of the protection of legitimate expectation.

(1) Regulation No 1determining the languages to be used by the European Economic Community (OJ English Special Edition, 1952-1958, p. 59)
EN Official Journal of the European Union C 167/21

Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (OLYMP)

(Case T-204/09)

2009/C 167/41

Language in which the application was lodged: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: J. Dönch and M. Eck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Miguel Bellido, S.A. (Manzanares, Ciudad Real, Spain)

Form of order sought

— Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2009 in case R 598/2008-2; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘OLYMP’ for goods in class 25

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: Spanish trade mark registration of the figurative mark ‘OLIMPO’ for goods in class 25

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there was a likelihood of confusion, due to the fact that the concerned trade marks are not visually, aurally or conceptually similar.
EN Official Journal of the European Union C 193/27

Action brought on 17 June 2009 — Région Wallonne v Commission

(Case T-237/09)

2009/C 193/43

Language of the case: French

Parties

Applicant: Région Wallonne (represented by: J.-M. De Backer, A. Lapièce, and I.-S. Brouhns, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— An order annulling the Commission’s decision of 27 March 2009 concerning the Belgian National Allocation Plan on the ground that the decision rejects the allocation of allowances to installation No 116 for the period 2008 — 2012, and permitting allocation by annual tranches in accordance with Annex Va to the NAP;

— An order that the Commission pay the costs.

Pleas in law and main arguments

The applicant claims annulment of the Commission’s decision of 27 March 2009 concerning the national plan for allocation of greenhouse gas emission allowances for Belgium for the period from 2008 to 2012, by which the Commission refused the correction to the ‘National Allocation Plan table’ according allowances to installation No 116.

In support of its action, the applicant relies on four pleas in law:

— breach of Article 44(2) of Commission Regulation (EC) No 2216/2004, (1) since the Commission relied on grounds which were not provided for by the applicable provision;

— breach of its obligation to state reasons for the contested decision, from which it cannot be ascertained in what way the correction to Belgium’s ‘National Allocation Plan table’ in respect of installation No 116 is not based on the national plan for allocation of greenhouse gas emission allowances notified by Belgium and approved by the Commission beforehand;

— breach of the principle of legal certainty and of legitimate expectations, on the ground that the contested decision is contrary to the national plan for allocation of greenhouse gas emission allowances approved by the Commission;

— breach of the principle of good faith in Community matters and of sound administration, since the Commission adopted a decision which is contrary to a previous decision adopted six months earlier.

(1) Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1)
EN Official Journal of the European Union C 205/40

Action brought on 12 June 2009 — Access Info Europe v Council

(Case T-233/09)

2009/C 205/75

Language of the case: English

Parties

Applicant: Access Info Europe (Madrid, Spain) (represented by: O. Brouwer and J. Blockx, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul the contested decision;

— order the Council to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance, including the costs of any intervening parties.

Pleas in law and main arguments

The applicant seeks, pursuant to Regulation (EC) No 1049/2001 (1), the annulment of the Council’s decision to refuse full access to document 16338/08, a note from the General Secretariat to the Working Party on Information concerning the Proposal for a Regulation of the European Parliament and the Council regarding public access to European Parliament, Council and Commission documents. The Council has allegedly only granted the applicant access to a redacted version of this document, excluding those parts which enable the delegations making proposals for modifications to be identified.

The applicant submits that the contested decision should be annulled on the following grounds:

First, the applicant claims that the Council breached Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 in that

(a) it failed to show how the disclosure of the names of the delegations would seriously undermine the institution’s decision-making process;

(b) it did not substantiate the risk that the delegations’ views would cease to be submitted in writing nor how this would seriously undermine the institution’s decision-making process; and in that

(c) it failed to take into account the overriding public interest in disclosure of the identity of the national delegations.

Second, the applicant submits that the Council violated the duty to state reasons as required by Article 253 EC and Articles 7(1) and 8(1) of Regulation (EC) No 1049/2001.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)
EN Official Journal of the European Union C 205/40

Action brought on 5 June 2009 — CEVA v Commission

(Case T-224/09)

2009/C 205/74

Language of the case: French

Parties

Applicant: Centre d’étude et de valorisation des algues SA (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— principally, declare that no contractual link exists between the European Commission and CEVA (European Research Center for Algae) and, consequently,

— annul enforcement order No 3230900440 of the European Commission of 6 April 2009;

— in the alternative, find that no statement of reasons has been provided for enforcement order No 3230900440 of the European Commission of 6 April 2009;

— declare that there is a risk of unjust enrichment of the Commission in the event that CEVA reimburses the sum of EUR 179 896 together with default interest;

— consequently, annul enforcement order No 3230900440 of the European Commission of 6 April 2009.

Pleas in law and main arguments

By this action, the applicant seeks annulment of the enforcement order by which the Commission demanded reimbursement of all the payments made on account to the applicant in the framework of contract PROTOP No EVK3-CT-2002-30004 relating to a research and technological development project.

In support of its action, the applicant puts forward three pleas alleging:

— that the enforcement order is inadmissible since no contractual link exists between the applicant and the Commission;

— failure to provide a sufficient statement of reasons, since the Commission relied on an alleged infringement of the contractual obligations by the applicant without however setting out the legal and factual reasons in support of that claim;
EN Official Journal of the European Union C 233/20

Appeal brought on 4 August 2009 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 20 May 2009 in Case F-73/08, Marcuccio v Commission

(Case T-311/09 P)

2009/C 233/37

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:

— Annul the judgment under appeal in its entirety.

— Declare that the action which gave rise to the judgment under appeal is perfectly admissible.

Principal claim:

— Annul the respondent’s decision refusing the application dated 27 June 2007.

— Annul the respondent’s decision rejecting the application dated 29 June 2007.

— Annul the respondent decision rejecting the application dated 30 June 2007.

— Annul the respondent’s decision rejecting the application dated 2 July 2007.

— Annul, in so far as necessary, the memorandum dated 29 April 2008 signed by Mr Bernhard Jansen.

— On the basis set out in the application initiating the proceedings, order that the EC pay to the applicant the sum of EUR 4 747,29 or such greater or lesser sum as the Court of First Instance may consider appropriate, together with interest on that sum with effect from 7 November 2007 at the rate of 10 % per annum with annual capitalisation, or at such rate with capitalisation and from such date as the Court of First Instance may consider appropriate.

— Order the EC to reimburse the appellant in respect of all costs, charges and fees incurred by him in the proceedings at first instance and in these appeal proceedings.

In the alternative:

— Refer the case back to the Civil Service Tribunal for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 20 May 2009 in Case F-73/08. That order dismissed as partly inadmissible and partly unfounded an action seeking annulment of the defendant’s decision to reject the appellant’s requests for reimbursement of certain medical expenses at the normal rate and at the ‘additional’ rate, namely 100 %.

In support of his claims, the appellant alleges infringement of the principle that reasons must be given for a Community decision, misapplication of the concept of a challengeable act and breach of the principle of res judicata, the principle of the division of powers and of the case-law relating the effects of the annulment by the Community judicature of a decision adopted by a Community institution.

The appellant also alleges infringement of the concepts of lis pendens and of a confirmatory decision and of the provisions governing rulings on costs in legal proceedings.