Action brought on 6 October 2009 — Ernst August Prinz 
von Hannover Herzog zu Braunschweig und Lüneburg v 
OHIM (Figurative mark representing a coat of arms)  
(Case T-397/09)  
(2009/C 297/42)  
Language in which the application was lodged: German  
Parties  
Applicant:  Ernst August Prinz von Hannover Herzog zu Braun ­
schweig und Lüneburg (Hanover, Germany) (represented by 
R. Stötzel and J. Hilger, lawyers)  
Defendant:  Office for Harmonisation in the Internal Market 
(Trade Marks and Designs)  
Forms of order sought  
— Annulment of the decision of the First Board of Appeal of 
the Office for Harmonisation in the Internal Market (Trade 
Marks and Designs) of 23 July 2009 in Case R 1361/2008- 
1 concerning the application for Community trade mark 
No 5 627 245 and admission of the application for 
Community trade mark No 5 627 245 for publication in 
the Community Trade Marks Bulletin;  
— Order OHIM to pay the costs.  
Pleas in law and main arguments  
Community trade mark concerned:  The colour figurative mark 
representing a coat of arms for goods and services in Classes 
16, 25, 28, 2, 33, 35, 39, 41 and 43 (Application 
No 5 627 245)  
Decision of the Examiner:  Application refused  
Decision of the Board of Appeal:  Appeal dismissed  
Pleas in law:  Inter alia, infringement of Article 7(1)(h) of Regu ­
lation No 207/2009 (  1 ), since the mark applied for is neither 
identical with the opposing royal emblem nor a heraldic immi ­
tation thereof.  
( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the 
Community trade mark (OJ 2009 L 78, p. 1).  
Action brought on 6 October 2009 — ECKA Granulate 
and non ferrum Metallpulver v Commission  
(Case T-400/09)  
(2009/C 297/43)  
Language of the case: German  
Parties  
Applicants:  ECKA Granulate GmbH & Co. KG (Fürth, Germany) 
and non ferrum Metallpulver GmbH & Co. KG (St Georgen bei Salzburg, Austria) (represented by: H. Janssen and M. Franz, 
lawyers)  
Defendant:  Commission of the European Communities  
Form of order sought  
— Annul the contested decision in so far as it concerns the 
applicants;  
— in the alternative, reduce appropriately the fine imposed on 
the applicants by the contested decision;  
— order the defendant to pay the costs.  
Pleas in law and main arguments  
The applicants contest Commission Decision C (2009) 5791 
final of 22 July 2009 in case COMP/39.396 — Calcium 
carbide and magnesium based reagents for the steel and gas 
industry. The contested decision imposed a fine on the 
applicants and on other undertakings for infringement of 
Article 81 EC and Article 53 of the EEA Agreement. 
According to the Commission, the applicants participated in a 
single and continuous infringement in the calcium carbide and 
magnesium sector in the EEA, except in Spain, Portugal, Ireland 
and the United Kingdom, which consisted in market sharing, 
agreements on quotas, customer allocations, price fixing and 
exchange of sensitive information relating to prices, customers 
and sales volumes.  
In support of their action, the applicants submit the following 
pleas in law:  
— Infringement of the principle of legal certainty by Article 23 
of Regulation (EC) No 1/2003 (  1 ) since the Commission has 
an almost unfettered discretion in relation to setting the 
fine;  
— unlawful setting of the fine since the Guidelines on setting 
fines (  2 ) grant the Commission an almost unfettered 
discretion in relation to setting the amount of the fine;  
— disproportionality of the amount of the fine since the 
defendant failed to take account of the applicants’ effective 
cooperation;  
— disproportionality of the amount of the fine since the 
defendant failed to take account of the fact that the 
applicants have no experience of infringements of the law 
relating to cartels;  
— disproportionality of the amount of the fine since the 
defendant failed to take into account as a mitigating circum ­
stance the applicants’ introduction of ‘compliance measures’ 
and the fact that, on personnel grounds also, there is no risk 
of repetition;EN 5.12.2009 Official Journal of the European Union C 297/29
— disproportionality of the amount of the fine since the 
defendant failed to take into account as a mitigating circum ­
stance the fact that the applicants did not stint in the supply 
of magnesium;  
— disproportionality of the amount of the fine since no 
account was taken of the applicants’ lack of resources.  
( 1 ) Council Regulation No 1/2003 of 16 December 2002 on the imple ­
mentation of the rules on competition laid down in Articles 81 and 
82 of the Treaty (OJ 2003 L 1, p. 1).  
( 2 ) Guidelines on the method of setting fines imposed pursuant to 
Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).  
Action brought on 5 October 2009 — Marcuccio v Court 
of Justice of the European Communities  
(Case T-401/09)  
(2009/C 297/44)  
Language of the case: Italian  
Parties  
Applicant:  Luigi Marcuccio (Tricase, Italy) (represented by: 
G. Cipressa, lawyer)  
Defendant:  Court of Justice of the European Communities  
Form of order sought  
— Annul the decision, however framed, which constituted 
rejection by the defendant of the request of 24 May 2009 
submitted by the applicant to the defendant;  
— annul the note dated 15 June 2009 from the Registry of the 
Court of Justice;  
— order the defendant to pay to the applicant the sum of 
EUR 10 000,00 (ten thousand Euro), or such greater or 
lesser sum as the Court may consider just and fair, by 
way of compensation for the damage suffered;  
— order the defendant to pay all the costs, disbursements and 
fees incurred in the proceedings.  
Pleas in law and main arguments  
The present action concerns the defendant’s refusal to accede to 
the request for compensation for the alleged damage arising 
from the fact that a lawyer who was no longer authorised to 
receive it was notified of the Commission’s appeal against a 
decision of the Civil Service Tribunal granting in part the 
form of order sought by the applicant.  
In support of his claims, the applicant alleges a total failure to 
state reasons, breach of the duty of sound administration, infringement of provisions of law and a manifest error of 
assessment.  
Appeal brought on 7 October 2009 by Luigi Marcuccio 
against the order of 20 July 2009 of the Civil Service 
Tribunal in Case F-86/07, Marcuccio v Commission  
(Case T-402/09 P)  
(2009/C 297/45)  
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, set aside in its entirety and without exception 
the order under appeal;  
— declare that the action at first instance, in relation to which 
the order under appeal was made, was perfectly admissible 
in its entirety and without any exception whatsoever;  
— allow in its entirety and without any exception whatsoever 
the relief sought by the appellant at first instance;  
— order the Commission to reimburse the appellant in respect 
of all costs, disbursements and fees incurred by him in 
relation to both the proceedings at first instance and the 
present appeal proceedings;  
— in the alternative, refer the case back to the Civil Service 
Tribunal, sitting in a different formation, for a fresh 
decision.  
Pleas in law and main arguments  
The present appeal is brought against the order made by the 
Civil Service Tribunal (CST) on 20 July 2009 in Case F-86/07  
Marcuccio  v Commission . That order dismissed, as partly 
manifestly inadmissible and partly manifestly unfounded, an 
action for annulment of the Commission’s decision refusing 
the appellant’s request for an investigation into the psycho ­
logical harassment suffered by the appellant during the period 
in which he was on secondment to the Commission’s delegation 
in Angola, and for an order that the defendant pay compen ­
sation for the damage resulting from the psychological 
harassment alleged.EN C 297/30 Official Journal of the European Union 5.12.2009