ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 37/31

Action brought on 5 December 2007 — Scovill Fasteners v Commission

(Case T-447/07)

(2008/C 37/48)

Language of the case: English

Parties

Applicant: Scovill Fasteners, Inc. (Clarkesville, United States) (represented by: O. Dugardyn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of 19 September 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners);

— in the alternative, annul or reduce the fine imposed on the applicant;

— order the Commission to bear its own costs and those incurred by the applicant.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by which the Commission found that the applicant's subsidiary, together with other undertakings, had infringed Article 81 EC by agreeing on coordinated price increases and exchanging confidential information on prices and the implementation of price increases.

In support of its application, the applicant contends that the Commission erroneously considered that the applicant forms a single economic entity with its subsidiary and that the applicant should not be held jointly and severally liable for the payment of the fine imposed on its subsidiary for the subsidiary's alleged infringements.

Furthermore, the applicant submits that the Commission failed to prove to the requisite standard that the applicant's subsidiary participated in the cartel after 1997.

In the alternative, the applicant submits that the Commission:

— committed manifest errors when calculating the fine,

— did not take all relevant circumstances into account when assessing the duration and the gravity of the infringements; and
EN Official Journal of the European Union C 22/48

Action brought on 22 November 2007 — Centre d'Étude et de Valorisation des Algues v Commission

(Case T-428/07)

(2008/C 22/90)

Language of the case: French

Parties

Applicant: Centre d'Étude et Valorisation des Algues SA (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— as the principal claim, find procedural irregularity and breach of the principle that both parties should be heard and therefore annul Commission debit note No 3240908670 of 20 September 2007 and order the Commission to repay the debit note at issue to CEVA;

— in the alternative, find that the errors found in the audit report are not sufficiently serious for Article 3.5 of Annex II to the contract to be applied; annul Commission debit note No 3240908670 of 20 September 2007 in so far as it claims full repayment of the sums paid to CEVA under the SEAHEALTH contract; and order the Commission to repay the debit note at issue in favour of CEVA;

— in the further alternative, appoint an expert of the Court of First Instance's own choice with the task of: taking up again CEVA's method of calculating the time spent on projects; comparing that method with the SEAHEALTH contract and with the actual costs submitted in the cost statements; stating, as a percentage, the difference between the total errors in the registration of work time as presented to the Commission and the total registration of that work time according to the calculation method applicable from that time on at CEVA; carrying out an assessment of the direct working time needed to carry out CEVA's tasks in the context of the SEAHEALTH contract; and stating whether that effective working time could have amounted to fewer than the 7 092,88 hours claimed by CEVA.

Pleas in law and main arguments

By this action, the applicant seeks annulment of the debit note by which the Commission ordered the repayment in full of the advances paid to the applicant in relation to the SEAHEALTH contract No QLK1-CT-2002-02433, concerning the project ‘Food, Nutrition and Health’ which was part of the ‘Quality of Life and Management of Living Resources’ key action (1).

In support of its application, it relies on a plea in law alleging breach of the rights of the defence inasmuch as the Commission, in breach of the principle that both parties should be heard, based its order for repayment on the timesheets and conclusions of OLAF of which the applicant had no knowledge.

In the alternative, the applicant challenges the Commission's application of Article 3.5 of Annex II and its finding that the facts in this case were sufficiently serious for it to rely on the concept of serious financial irregularities justifying full repayment of the advances.

(1) Fifth framework programme of the European Community for research, technological development and demonstration activities (1998-2002).
EN Official Journal of the European Union C 51/51

Action brought on 12 December 2007 — Italy v Commission

(Case T-463/07)

(2008/C 51/93)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2007) 4477 of 3 October 2006, notified on 4 October 2007, in so far as it excludes from Community financing and charges to the budget of the Italian Republic the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

Pleas in law and main arguments

By the present action, the applicant challenges the lawfulness of the contested decision, in so far as it excludes from Community financing and charges to the budget of the Italian Republic the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

The actual expenditure excluded from that financing, which is the subject-matter of the action, relates to premiums for bovines, controls of the mills, the existence of the olive-oil register and the geographical information system for olives, controls of the yield, checks of the destination of the oil and dried fodder.

In support of its claims, the applicant pleads:

— infringement of Articles 15 and 24(1) of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92;

— infringement of Articles 9a(1) and (3), 10, 16, 26 and 28(1) of Commission Regulation (EC) No 2366/98 of 30 October 1998 laying down detailed rules for the application of the system of production aid for olive oil for the 1998/99, 1999/2000 and 2000/01 marketing years;

— infringement of Article 11a of Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats;

— infringement of Article 14(3) of Council Regulation (EEC) No 2261/84 of 17 July 1984 laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organisations;
EN Official Journal of the European Union C 51/47

Action brought on 10 December 2007 — Evropaïki Dynamiki v EFSA

(Case T-457/07)

(2008/C 51/87)

Language of the case: English

Parties

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

Defendant: European Food Safety Authority (EFSA)

Form of order sought

— Annul the decision of EFSA to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

— order EFSA to pay the applicant's legal and other costs and expenses incurred in connection with this application.

Pleas in law and main arguments

The applicant submitted a bid in response to the defendant's call for an open tender for the provision of IT consultancy assistance (OJ 2007/S 97-118626). The applicant contests the defendant's decision of 1 October 2007 to reject the applicant's bid and to award the contract to another tenderer.

In support of its application, the applicant submits that EFSA failed to state reasons in accordance with Article 253 EC and, in particular, inform the applicant of the relative merits of the successful tenderer. According to the applicant, EFSA mixed selection criteria with award criteria when evaluating the bids and used evaluation criteria that were not expressly included in the call for tender. Furthermore, the applicant alleges that EFSA committed manifest errors of assessment.
EN Official Journal of the European Union C 64/45

Action brought on 21 December 2007 — Notartel v OHIM — SAT.1 SatellitenFernsehen (R.U.N.)

(Case T-490/07)

(2008/C 64/75)

Language in which the application was lodged: Italian

Parties

Applicant: Notartel SpA — (Notaries' information technology company) (Rome, Italy) (represented by: M. Bosshard and M. Balestriero, avvocati)

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

Other party to the proceedings before the Board of Appeal of OHIM: SAT.1 SatellitenFernsehen GmbH (Berlin, Germany)

Form of order sought

The applicant claims that the Court should:

— Primarily, annul, in part, the decision of OHIM's Fourth Board of Appeal of 22 October 2007 in Case R 1267/2006-4, in so far as it upheld the opposition;

— Alternatively, annul, in part, the decision of OHIM's Fourth Board of Appeal of 22 October 2007 in Case R 1267/2006-4, in so far as it upheld the opposition in respect of the mark sought for Class 38;

— In any event, reject any possible future contrary application or claim, by way of confirming the decision in so far as it is not impugned in this case;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘R.U.N.’ (Community trade mark application No 1,069,863 for services in Classes 35, 38 and 42, as regards these proceedings).

Proprietor of the mark or sign cited in the opposition proceedings: SAT.1 SatellitenFernsehen GmbH.

Mark or sign cited in opposition: Community and national word mark ‘ran’, for goods and services in Classes 9, 35, 38, 41 and 42.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal allowed in part, in respect of some services in Classes 38 and 42.

Pleas in law: The contested decision is vitiated by a logical contradiction which consists in enunciating a series of correct legal principles stated to be mandatory in the assessment of the similarity between signs and goods/services for the purposes of establishing the ground of refusal under the first part of Article 73 of the Community trade mark regulation, whilst however applying different criteria in evaluating the actual case in point. Such logical contradiction therefore gives rise either to an error of law, by the application of legal principles different to those (correct) ones stated in the legal basis of the decision, or to inconsistency and insufficiency in the reasoning.
EN Official Journal of the European Union C 64/62

Action brought on 16 January 2008 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle)

(Case T-24/08)

(2008/C 64/100)

Language in which the application was lodged: German

Parties

Applicant: Weldebräu GmbH & Co. KG (Plankstadt, Germany) (represented by W. Göpfert, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kofola Holding a.s. (Ostrava, Czech Republic)

Form of order sought

— annulment of the decision of the Fourth Board of Appeal of 15 November 2007 in Case R 1096/2006-4;

— the defendant to be ordered to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kofola Holding a.s.

Community trade mark concerned: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 30, 32 and 33 (Application No 3 367 539)

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

Mark or sign cited in opposition: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 21, 32 and 33 (Community trade mark No 690 016)

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 8(1)(b) of Regulation (EC) No 40/94 (1), as there is a likelihood of confusion between the marks in opposition.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 92/39

Action brought on 7 February 2008 — Nute Partecipazione and La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC)

(Case T-59/08)

(2008/C 92/78)

Language in which the application was lodged: Italian

Parties

Applicants: Nute Partecipazione Spa (Bologna, Italy) and La Perla Srl (Bologna, Italy) (represented by: R. Morresi and A. del Ferro, 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: Worldgem Brands Srl (Olmo di Creazzo, Italy)

Form of order sought

— Annul and alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

— in the alternative, annul the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(5) and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

— in the further alternative, annul and/or alter the decision of the Second Board of Appeal of OHIM of 19 November 2007 on the ground of misapplication of Article 8(1)(b) of the regulation on the Community trade mark and infringement of Articles 63(6), 73 and 74 of the regulation on the Community trade mark;

— in any event, order OHIM and Worldgem Brands Srl, jointly and severally, to pay the costs of all the proceedings, including the costs relating to the proceedings before the Second Board of Appeal of OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community word mark ‘NIMEI LA PERLA MODERN CLASSIC’ (application for registration No 713.446) for goods in Class 14. That trade mark has already been the subject of an earlier application for a declaration of invalidity. The decision rejecting that earlier application by the First Board of Appeal was annulled by judgment of the Court of First Instance in Case T-137/05 La Perla v OHIM — Worldgem Brands (1).

Proprietor of the Community trade mark: WORLDGEM BRANDS Srl

Applicant for the declaration of invalidity: the applicant.

Trade mark right of applicant for the declaration: the reputation of a number of ‘PERLA’ Italian figurative marks for goods in Classes 3, 9, 14, 16, 18, 24, 25 and 35.

Decision of the Cancellation Division: granted the application and declared that the registration of the Community trade mark in question was invalid.

Decision of the Board of Appeal: annulled the contested decision and granted in part the application for a declaration of invalidity.

Pleas in law: infringement of provisions of law and misinterpretation and misapplication of Articles 63, 73 and 74 of Regulation (EC) No 40/94 on the Community trade mark. In the alternative: infringement of provisions of law and misapplication of Article 8(1)(b) of that regulation.

(1) Not yet published in the ECR.
EN Official Journal of the European Union C 64/59

Appeal brought on 4 January 2008 by M against the order of the Civil Service Tribunal delivered on 19 October 2007 in Case F-23/07, M v EMEA

(Case T-12/08 P)

(2008/C 64/95)

Language of the case: French

Parties

Appellant: M (Broxbourne, United Kingdom) (represented by S. Orlandi, A. Coolen, J.-N Louis and E. Marchal, lawyers)

Other party to the proceedings: European Medicines Agency (EMEA)

Form of order sought by the appellant

— set aside the order of the Civil Service Tribunal of 19 October 2007 in M v European Medicines Agency in Case F-23/07;

— annul the decision of the EMEA of 25 October 2006 in so far as it dismisses the request of 8 August to consult the Invalidity Committee;

— annul the decision of the EMEA dismissing the request for compensation;

— order the defendant to pay the costs at first instance and on appeal.

Pleas in law and main arguments

In his appeal, the appellant asks the Court to set aside the order of the Civil Service Tribunal dismissing, on the ground that it is inadmissible, the action for annulment of the decision of 25 October 2006 by which the European Medicines Agency dismissed his request to set up and Invalidity Committee.

In support of his appeal, the appellant puts forward a single plea alleging infringement of Community law. He claims that the Civil Service Tribunal has committed an error of interpretation with respect to the scope of his action at first instance and, therefore, it gave a ruling ultra petita. He also claims that the Civil Service Tribunal infringed Article 33(1) and (2) of the Conditions of Employment of Other Servants of the Communities.
EN Official Journal of the European Union C 92/41

Action brought on 13 February 2008 — Spain v Commission

(Case T-65/08)

(2008/C 92/82)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision of 5 December 2007 in relation to a procedure pursuant to Article 21 of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (Case No Comp/M.4685 — Enel/Acciona/Endesa), and

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against Commission Decision C(2007) 5913 Final of 5 December 2007 in relation to a procedure pursuant to Article 21 of Regulation (EC) No 139/2004 (1) (Case No COMP/M.4685 Enel/Acciona/Endesa). In the contested decision the Commission found that the applicant had infringed Article 21 of Regulation No 139/2004 in subjecting the acquisition of joint control over Endesa, by Enel and Acciona, to a series of conditions, given that those conditions are incompatible with Articles 28, 43 and 56 EC, and thereby unduly interfere with the exclusive competence of the Commission to rule on a concentration at the Community level. Furthermore, the defendant forced the applicant to withdraw those conditions found to be incompatible with Community law.

In support of its claims, the applicant alleges, first, that the Commission lacks the competence to adopt the contested decision on the basis of the procedure pursuant to Article 21 of Regulation No 139/2004. According to the applicant, where the Commission takes the view that a Member State has infringed Article 21 of Regulation No 139/2004, it should initiate infringement proceedings against that Member State on the basis of Article 226 EC.

Second, the applicant claims that the contested decision is vitiated by a lack of reasoning in that the Commission did not examine the grounds of public security on which the Spanish Government relied, as laid down in Article 21(4) of Regulation No 139/2004, to adopt measures in relation to the public bid by Enel and Acciona for the purchase of Endesa.

Finally, the applicant alleges the Commission infringed Article 21(4) of Regulation No 139/2004 given that the Spanish authorities were not obliged to communicate the conditions imposed on the public bid for the purchase of Endesa, by Enel and Acciona, to the Commission, since those conditions sought to protect a legitimate interest, namely public security.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).
EN Official Journal of the European Union C 92/36

Action brought on 24 January 2008 — Shetland Islands Council v Commission

(Case T-43/08)

(2008/C 92/72)

Language of the case: English

Parties

Applicant: Shetland Islands Council (represented by: E. Whiteford, Barrister, R. Murray, Solicitor and R. Thompson QC)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Articles 3, 4 and 5 of the decision; and

— the costs of this application.

Pleas in law and main arguments

The applicant is a public authority that made payments to the fisheries sector under the scope of two general aid measures, named ‘Aid to Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’ consisting of different types of aid schemes. The Commission found that the aid which the United Kingdom implemented on the basis of the ‘Fish Factory Improvement Scheme’ was incompatible with the common market, in so far as it concerned the amount of GBP 92 007, granted on 13 August 1997, 7 January 1999, 25 February 1999, 10 December 1999, 19 January 2001 and 15 December 2004.

By means of its application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C 38/2006 (ex NN 93/2005) of 13 November 2007 concerning the ‘Fish Factory Improvement Scheme’ implemented in the United Kingdom. In particular, the applicant seeks annulment of Articles 3, 4 and 5 of the contested decision on the ground that the Commission erred in finding that recovery of payments would be compatible with:

(1) Article 14(1) of Council Regulation (EC) No 659/1999 (1); and

(2) the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, p. 1).
EN Official Journal of the European Union C 107/39

Appeal brought on 26 February 2008 by Kris Van Neyghem against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-73/06, Van Neyghem v Commission

(Case T-105/08 P)

(2008/C 107/66)

Language of the case: French

Parties

Appellant: Kris Van Neyghem (Vissenken, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— declare the present appeal admissible;

— annul the judgment of the Civil Service Tribunal (Second Chamber) delivered on 13 December 2007 in Case F-73/06;

— uphold the claims for annulment and for compensation submitted by the appellant to the Civil Service Tribunal;

— order the Commission to pay the costs of both instances.

Pleas in law and main arguments

In his appeal, the appellant is seeking the annulment of the judgment of the Civil Service Tribunal (the ‘Tribunal’) dismissing his application, on the one hand, for the annulment of the decision of the selection board in general competition EPSO/A/19/04 not to admit the applicant to the oral test in that competition and, on the other, for damages for the material and non-material damage which he allegedly suffered.

In support of his appeal, the appellant pleads a misunderstanding of evidence produced before the Tribunal, namely, a copy of the written test.

The applicant pleads, in addition, an error in the Tribunal's reasoning concerning the absence of a manifest error of assessment on the part of the president of the selection board in the comparison between the mark given to the applicant and the literal assessment in the evaluation sheet.