ddrg/super_eurlex huggingface dataset:
Official Journal of the European Union

Action brought on 10 August 2010 — Fraas v OHIM (Black, dark grey, light grey and dark red coloured checked pattern)

(Case T-327/10)

()

(2010/C 288/84)

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 June 2010 in Case R 189/2010-4;

— Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a black, dark grey, light grey and dark red coloured checked pattern, for goods in Classes 18, 24 and 25.

Decision of the Examiner: Registration was refused.

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

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

(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 301/50

Action brought on 14 September 2010 — Stichting Corporate Europe Observatory v Commission

(Case T-395/10)

()

2010/C 301/80

Language of the case: English

Parties

Applicant: Stichting Corporate Europe Observatory (Amsterdam, the Netherlands) (represented by: S. Crosby, Solicitor, and S. Santoro, lawyer)

Defendant: European Commission

Form of order sought

— annul the implied refusal of the applicant’s confirmatory application;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant’s request, pursuant to Regulation No 1049/2001 (1), of the access to certain documents relating to the trade negotiations between the EU and India.

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

First, it claims that the Commission infringed the Regulation No 1049/2001 by failing to reply to the confirmatory application within the prescribed time.

Second, the applicant contends that the Commission infringed the Regulation No 1049/2001 and the Treaty by constructively rejecting a confirmatory application without giving any reasons or without giving reasons to the standards required by the Treaty and by the Court.

Third, it submits that by failing to reply to the confirmatory application the Commission infringed an essential procedural requirement and/or committed an error of law.

(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 301/44

Action brought on 8 September 2010 — Dornbracht v Commission

(Case T-386/10)

()

2010/C 301/71

Language of the case: German

Parties

Applicant: Aloys F. Dornbracht GmbH & Co KG (Iserlohn, Germany) (represented by: H. Janssen, T. Kapp and M. Franz, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested decision, in so far as it concerns the applicant;

— In the alternative, reduce the fine imposed on the applicant in the contested decision;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom fittings and fixtures. The decision imposed fines on the applicant and other undertakings on account of the infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant took part in a long-lasting agreement or concerted practices in the bathroom fittings and fixtures sector in Germany and Austria.

In support of its claim, the applicant relies on eight pleas in law.

First, the applicant claims that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, (1) because the defendant did not take into account a number of mitigating circumstances in the applicant’s favour.

Second, the applicant claims that there has been an infringement of Article 23(3) of Regulation No 1/2003, because the defendant, by interpreting the second sentence of Article 23(2) of that regulation as a cap, prevented itself from assessing the gravity of the infringement of which the applicant was accused.

Third, the applicant claims that the principle of equal treatment has not been observed because the defendant, by fixing general amounts, failed to take into account the applicant’s individual contribution to the act.

Fourth, the applicant claims that when setting the level of the fine, the defendant failed to assess the infringement in proportion to infringements in other cases decided by it, and therefore failed to observe the principle of equal treatment.

Fifth, the applicant complains that the level of the fine is disproportionate because the defendant failed to take into account the applicant’s limited capacity to participate.

Sixth, the applicant complains that, in so far as the defendant calculated the fines on the basis of its 2006 Guidelines on fines, (2) the contested decision failed to comply with the prohibition on retroactive effect.

Seventh, the applicant claims that Article 23(3) of Regulation No 1/2003 infringes the principle of legal certainty.

Finally, the applicant claims that the fixing of the fine was unlawful because the fine was calculated on the basis of guidelines on fines which give the defendant too much discretion.

(1) 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).

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).
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misapplication of Article 101 TFEU so far as concerns the attribution of liability to MRT by reason of the alleged infringement of that article given that, on the one hand, it was not MRT but TYCSA (PSC) that was responsible for the supposed participation of TYCSA S.L. in the conduct described in the decision and, on the other, TYCSA S.L. did not form part of an economic entity with GSW/TYCSA. There are, therefore, no grounds for attributing to MRT any liability for the conduct of TYCSA S.L. and TYCSA PSC.
EN Official Journal of the European Union C 317/45

Action brought on 28 September 2010 — HerkuPlast Kubern v OHIM — How (eco-pack)

(Case T-445/10)

()

2010/C 317/79

Language in which the application was lodged: German

Parties

Applicant: HerkuPlast Kubern GmbH (Ering, 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 of OHIM: Heidi A.T. How (Harrow, 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 27 July 2010 in Case R 1014/2009-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Heidi A.T. How.

Community trade mark concerned: Figurative mark including the word element ‘eco-pack’, for goods in Class 16.

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

Mark or sign cited in opposition: German word mark and international registration ‘ECOPAK’ for goods in Class 20.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) as there is a likelihood of confusion between the marks at issue, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 in so far as the Board of Appeal dismissed altogether the existence of any likelihood of confusion, its reasoning is, at various points, inherently contradictory and it inappropriately rejected as irrelevant arguments submitted by the applicant that are in fact relevant.

(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 328/55

Action brought on 7 October 2010 — Bank Saderat v Council

(Case T-495/10)

()

2010/C 328/85

Language of the case: English

Parties

Applicant: Bank Saderat plc (London, United Kingdom) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

— annul paragraph 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

— annul paragraph 7 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

— declare Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) inapplicable to the applicant; and

— order the Council to pay the costs of the application.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Implementing Regulation No 668/2010 and of Council Decision 2010/413/CFSP in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. Furthermore, the applicant applies, in accordance with Article 277 TFUE, for the inapplicability of Article 7(2)(d) of Council Regulation (EC) No 423/2007.

The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran, OJ 2007 L 103, p. 1
EN Official Journal of the European Union C 328/33

Action brought on 17 September 2010 — Václav Hrbek trading as BODY-HF v OHMI — The Outdoor Group (ALPINE PRO SPORTSWEAR & EQUIPMENT)

(Case T-434/10)

()

2010/C 328/57

Language in which the application was lodged: English

Parties

Applicant: Václav Hrbek trading as BODY-HF (Prague, Czech Republic) (represented by: C. Jäger, lawyer)

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

Other party to the proceedings before the Board of Appeal: The Outdoor Group Ltd (Northampton, United Kingdom)

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 8 July 2010 in case R 1441/2009-2;

— Order the defendant to reject opposition No B1276692 and to allow the application No 5779351 for registration in its entirety;

— Order the defendant to bear the costs of the proceedings;

— 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 and the Opposition Division, 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 figurative mark ‘ALPINE PRO SPORTSWEAR & EQUIPMENT’, for goods in classes 18, 24, 25 and 28 — Community trade mark application No 5779351

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: Community trade mark registration No 2165017 of the figurative mark ‘alpine’, for goods in classes 18 and 25

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 65(2) and 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal misused its power by the ruling of the contested decision as it lacks objectivity and legal basis, and erroneously applied the criteria to establish a likelihood of confusion between the earlier trademark and the contested trademark.
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A plea of illegality raised against Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, (1) on the basis of which the contested decision was adopted, in so far as: — Regulation No 1829/2003 infringes the principle of institutional balance in that (i) the European Parliament did not have any power during the authorisation procedure while the Commission had too much power, and (ii) the Member States were left without any discretion; — Regulation No 1829/2003 infringes the precautionary principle in that it fails to take sufficient account of the threats to public health, the environment, agriculture and rearing which genetically modified food and feed would pose; — Regulation No 1829/2003 infringes the rights of consumers, first, by failing to provide for any measure enabling consumers to be informed that the animals which they consume have been fed GMOs and, second, by permitting substantively incorrect information regarding the absence of GMOs in products which actually contain GMOs but in a proportion no higher than 0.9 %;
—

annul Decision 2010/432/EU of the European Commission of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize 1507x59122 (DAS-Ø15Ø7-1xDAS-59122-7) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council;
EN Official Journal of the European Union C 30/42

Action brought on 15 November 2010 — Reber v OHIM — Klusmeier (Wolfgang Amadeus Mozart PREMIUM)

(Case T-530/10)

()

2011/C 30/77

Language in which the application was lodged: German

Parties

Applicant: Reber (Bad Reichenhall, Germany) (represented by: O. Spuhler and M. Geitz, laywers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ms Anna Klusmeier (Bielefed, Germany)

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 14 September 2010 in Case R 363/2008-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Predecessor in title of Ms Anna Klusmeier.

Community trade mark concerned: Word mark ‘Wolfgang Amadeus Mozart PREMIUM’ for goods in Classes 30 and 32.

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

Mark or sign cited in opposition: German figurative marks which contain the word element ‘W. Amadeus Mozart’ for the following goods and sservices: bakers’ wares, confectionery, chocolate confectionery and sugar confectionery, catering in a café and teashop.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 42(2)(1) in conjunction with Article 42(3) of Regulation (EC) No 207/2009, (1) since the evidence of use put forward by the applicant is a concrete indication of the form of use of the mark cited in opposition ‘W. Amadeus Mozart’, and of Article 15(1)(2)(a) of Regulation (EC) No 207/2009, since it was proven that the mark cited in opposition is clearly used as a trade mark.

(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 13/28

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

(Case T-507/10)

()

2011/C 13/55

Language of the case: Lithuanian

Parties

Applicant: Viktor Uspaskich (Kėdainiai, Lithuania) (represented by Vytautas Sviderskis, lawyer, and Stanislovas Tomas, legal consultant)

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 30/54

Action brought on 26 November 2010 — Evropaïki Dynamiki v Frontex

(Case T-554/10)

()

2011/C 30/95

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX)

Form of order sought

— Annul the decision of FRONTEX to reject the bid of the applicant, filed in response to the open call for tenders Frontex/OP/98/2010 — EOROSUR Big Pilot Project (OJ 2010, S 90-134098), as well as all further related decisions of FRONTEX, including the one to award the respective contract to the successful contractor;

— Annul the decision of FRONTEX to reject the bid of the applicant, filed in response to Lot 1 and Lot 6 of the open call for tenders Frontex/OP/87/2010 — Framework Contract (OJ 2010, S 66-098323), as well as all further related decisions of FRONTEX, including the one to award the respective contracts to the successful contractors;

— Order FRONTEX to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of 9 358 915,00 EUR;

— Order FRONTEX to pay the applicant’s damages suffered on account of loss of opportunity and damage to its reputation and credibility for an amount of 935 891,00 EUR; and

— Order FRONTEX to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the defendant’s decisions of 16 September 2010 and 20 October 2010 to reject its bid in the context of the call for tenders Frontex/OP/98/2010 — EOROSUR Big Pilot Project (OJ 2010, S 90-134098) and Lot 1 and Lot 6 of the open call for tenders Frontex/OP/87/2010 — Framework Contract (OJ 2010, S 66-098323), as well as all further related decisions of FRONTEX, including the one to award the respective contracts to the successful contractors. The applicant further requests compensation for the alleged damages on account of the tender procedure.

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

Firstly, the applicant argues that the defendant has infringed Articles 100(2) of the financial regulation (1), the obligation to state reasons, as FRONTEX refused to provide sufficient justification or explanation to the applicant.

Furthermore, the applicant argues that the defendant committed various and serious errors of assessment, infringed the principle of non-discrimination and did not comply with the exclusion criteria, thereby infringing Articles 93(1)(f) and 94 of the financial regulation.

Finally, the applicant claims that the defendant violated the principle of good administration since it illegally mixed the selection and award criteria.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)
1.

First plea in law, alleging that the Council violated Article 15(1) of Council Regulation (EC) No 597/2009 (2) insofar as it disregarded the fact that imports of raw materials consigned from the Kingdom of Saudi Arabia were not subject to import duties and, thus, erred in calculating the subsidy margin. The applicant submits that, in the present case, the Council failed: — to correctly establish the amount of countervailable subsidy since it did not take into consideration the existence of a customs union between the Gulf Cooperation Council (GCC) members; — to take into consideration the impact of such customs union on the amount of countervailable subsidies. Accordingly, the applicant submits that the countervailing duty exceeds the amount of countervailable subsidy established in the investigation.