ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 282/48

Action brought on 3 August 2011 — Europäisch-Iranische Handelsbank v Council

(Case T-434/11)

2011/C 282/88

Language of the case: English

Parties

Applicant: Europäisch-Iranische Handelsbank AG (Hamburg, Germany) (represented by: S. Gadhia and S. Ashley, Solicitors, H. Hohmann, lawyer, D. Wyatt, Queen's Counsel, and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

— Annul paragraph 1 of Table B of Annex I to Council Decision 2011/299/CFSP (1), in so far as it relates to the applicant;

— Annul paragraph 1 of Table B of Annex I to Council Implementing Regulation (EU) No 503/2011 (2), in so far as it relates to the applicant;

— Declare Article 20(1)(b) of Council Decision 2010/413/CFSP (3) inapplicable to the applicant;

— Declare Article 16(2) of Council Regulation (EU) No 961/2010 (4) inapplicable to the applicant; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging that the defendant breached procedural requirements, as: — it did not give adequate, precise and sufficient reasons, and — it failed to respect the rights of defence and the right to effective judicial protection.

2. Second plea in law, alleging that the defendant committed a manifest error of assessment in determining whether or not the criteria for designation of the applicant under the contested measures were met, as the transactions in respect of which the applicant has apparently been designated were either authorised or in conformity with the rulings and guidance of the competent national authority (the German Central Bank).

3. Third plea in law, alleging that the defendant has breached the applicant’s legitimate expectations that it would not be sanctioned by imposing restrictive measures based on conduct that was authorised by the competent national authority. Alternatively, to sanction the applicant in such circumstances breached the principles of legal certainty and the applicant’s right to good administration.

4. Fourth plea in law, alleging that the designation of the applicant is in violation of its property rights and/or the right to conduct its business and is in manifest violation of the principle of proportionality.

5. Fifth plea in law, alleging that if the power under which the defendant appears to have acted is mandatory, it is unlawful as being contrary to the principle of proportionality.

(1) Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65)

(2) Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26)

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

(4) Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1)
—

In case the General Court is in the position to decide the case on the merits to give the same form of order as sought at first instance, i.e. to: — Annul decision CMS 07/046 of the European Commission of 23 July 2009 due to harassment, mismanagement and the abuse of the fundamental rights to be heard; — Annul all decisions taken by the appointing authority against the applicant between the period September 2003 until the removing from the post due to harassment and mismanagement, alleging the abuse of the right of the applicant to be heard; — Enable a hearing of the applicant according to Articles 7(1) and 24 of the Staff Regulation (1) and refer in this respect to the submitted requests in February 2008 and March 2008; — Grant a symbolic compensation of EUR 1,00 (one) to the applicant in order to compensate his moral and professional prejudice suffered as exposed in the application, as far as the objective of such a complaint is not financial but rather recognition of the dignity and the professional reputation of the applicant; and
EN Official Journal of the European Union C 282/47

Action brought on 4 August 2011 — Telefónica v Commission

(Case T-430/11)

2011/C 282/86

Language of the case: Spanish

Parties

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

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul Article 1(1) of the decision;

— in the alternative, annul Article 1(4) and (5) of the decision;

— in the further alternative, annul Article 4 of the decision, or amend its scope as appropriate, and

— order the Commission to pay all the costs arising from these proceedings.

Pleas in law and main arguments

This action has been brought against the Commission's Decision of 12 January 2011 in Case No C 45/2007 (ex NN 51/2007, ex CP 9/2007), on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain.

The pleas in law and main arguments are those raised in Case T-429/11 BBVA v Commission.
1.

First plea in law, alleging infringement of rights guaranteed by the Charter of Fundamental Rights of the European Union The applicant's rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) have been infringed. Article 16 of the Charter guarantees the freedom to conduct a business in the European Union and Article 17 guarantees the right to use and, in particular, to dispose of lawfully acquired possessions in the European Union. Articles 20 and 21 of the Charter guarantee the applicant the right to equal treatment and the right not to be discriminated against. The applicant is excluded from participation in trade in the European Union by the contested decision. The economic survival of the applicant is thereby threatened. The applicant is dependent on deliveries from the economic territory of the European Union. There is no public interest in the restriction of the applicant’s freedom to conduct a business, its property rights, its right to equal treatment and its right not to be discriminated against. In particular, there is no evidence to justify the defendant’s decision and the related interference with the applicant’s fundamental rights. The applicant is, in particular, not engaged in proliferation-sensitive nuclear activities and/or the development of nuclear weapon delivery systems. There is a misunderstanding. The company named in the contested decision SATAK is not identical to the applicant. It is a third party which is external to the applicant. The applicant can only explain the fact that in the contested decision it was included in the list in Annex II to Decision 2010/413/CFSP concerning restrictive measures against Iran, by that fact that there was confusion with another company which controls ‘SATAK’ or a similarly named company.
3.

Third plea in law: the contested measures restrict the applicant’s fundamental rights in an unjustified and disproportionate manner, in particular his right to property, provided for in Article 1 of the First Additional Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the European Union, his right to respect for his good name and reputation, provided for in Articles 8 and 10 of the ECHR and, lastly, the principle of the presumption of innocence provided for in Article 6 of the ECHR and Article 48 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 298/24

Action brought on 9 August 2011 — Catinis v Commission

(Case T-447/11)

2011/C 298/45

Language of the case: English

Parties

Applicant: Lian Catinis (Damascus, Syria) (represented by: S. Pappas, lawyer)

Defendant: European Commission

Form of order sought

— Annul the contested decision as far as the non-closure of the investigation and the rejection of access to the applicant's personal file are concerned; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies primarily on the plea of breach of law, as well as the duty to state reasons in support of the decision to continue the investigation beyond any reasonable time and not to have it closed.

Further, the applicant relies on the plea of breach of the duty to state reasons in support of the decision not to allow access to the investigation file.

Lastly, the applicant alleges breaches of fundamental rights and general principles of law, in particular of the principle of good administration, presumption of innocence and right of defence.
EN Official Journal of the European Union C 298/21

Action brought on 1 August 2011 — Hartmann v OHIM (Nutriskin Protection Complex)

(Case T-415/11)

2011/C 298/38

Language of the case: German

Parties

Applicant: Paul Hartmann AG (Heidenheim an der Brenz, Germany) (represented by N. Aicher, lawyer)

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

Form of order sought

The applicant claims that the General Court should:

— annul the decision of the First Board of Appeal of OHIM of 26 May 2011 in Case R 1524/2010-1;

— order the defendant to pay the costs, including the costs of the appeal procedure before OHIM.

Pleas in law and main arguments

Community trade mark concerned: Wordmark ‘Nutriskin Protection Complex’ for Goods in Classes 3 and 5 — Application for registration Number 8 995 086.

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009, since the Community trade mark application ‘Nutriskin Protection Complex’ in respect of the goods in Classes 3 and 5 is neither descriptive nor lacking in any distinctive character, because first the component ‘Nutriskin’ by reason of the unusual nature of the combination leads to a term, which creates no directly descriptive impression and because secondly the defendant did no more than infer the alleged lack of distinctive character from the descriptive significance of the registered trade mark.
EN Official Journal of the European Union C 331/27

Appeal brought on 19 September 2011 by Luigi Marcuccio against the order of the Civil Service Tribunal of 30 June 2011 in Case F-14/10, Marcuccio v Commission

(Case T-491/11 P)

2011/C 331/52

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Annul in its entirety and without exception the order under appeal.

— Allow in its entirety and without any exception whatsoever the relief sought at first instance.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation both to 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 of the Civil Service Tribunal of 30 June 2011 dismissing as manifestly lacking any foundation in law an action seeking an order that the Commission pay compensation to the appellant for the material and non-material damage suffered by the appellant as a result of the purportedly unreasonably lengthy duration of the procedure for recognising partial permanent invalidity.

The appellant relies on five grounds in support of the appeal.

1. First ground, alleging error of law, including on the grounds of failure to state reasons and breach of the duty to carry out proper investigations, by failing quite simply in all cases to have regard to the fact that a European Union institution incurs liability in tort where it infringes the obligation it is under to give reasons for each of its decisions and by declaring the plea relied on by the appellant in that regard irrelevant.

2. Second ground, alleging incorrect and unreasonable interpretation and application of the concept of the duty to state reasons.

3. Third ground, alleging absolute failure to state reasons, including on the grounds of failure to carry out investigations, and procedural errors in that the Tribunal failed to declare that the Commission’s defence was clearly out of time and thus inadmissible.

4. Fourth ground, alleging breach of Article 44 of the Rules of Procedure of the Civil Service Tribunal and breach of the appellant’s right to a fair hearing and the rights of the defence.
EN Official Journal of the European Union C 319/23

Action brought on 29 August 2011 — Colgate-Palmolive v OHIM — dm drogerie markt (360o SONIC ENERGY)

(Case T-467/11)

2011/C 319/49

Language in which the application was lodged: English

Parties

Applicant: Colgate-Palmolive Company (New York, United States) (represented by: M. Zintler and G. Schindler, lawyers)

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

Other party to the proceedings before the Board of Appeal: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany)

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 May 2011 in case R 1094/2010-2; and

— Reject the opposition

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘360° SONIC ENERGY’, for ‘toothbrushes’ in class 21 — Community trade mark application No 6236533

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 in opposition: International trade mark registration No 842882 of the word mark ‘SONIC POWER’, for goods in classes 3 and 21

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly found a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 340/30

Action brought on 26 September 2011 — Sanofi Pasteur MSD v OHIM — Mundipharma (Representation of a device of crossing sickles)

(Case T-502/11)

2011/C 340/59

Language in which the application was lodged: English

Parties

Applicant: Sanofi Pasteur MSD SNC (Lyon, France) (represented by: T. de Haan and P. Péters, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mundipharma AG (Basel, Switzerland)

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 22 July 2011 in case R 1904/2010-4;

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark representing a device of crossing sickles, for goods in class 5 — Community trade mark application No 5164561

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

Mark or sign cited in opposition: French trade mark registration No 94500834, of the figurative mark representing a device of ribbons, for goods in class 5; International trade mark registration No 620636, of the figurative mark representing a device of ribbons, for goods in class 5; International trade mark registration No 627401, of the figurative mark representing a device of ribbons, for goods in class 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 76 and 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly held that the enhanced distinctiveness of the earlier marks was no longer raised in the appeal proceedings, and did not properly assess the likelihood of confusion.
EN Official Journal of the European Union C 355/23

Action brought on 3 October 2011 — Deutsche Bahn and Others v Commission

(Case T-521/11)

2011/C 355/43

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), Deutsche Umschlaggesellschaft Schiene-Straße (DUSS) mbH (Bodenheim, Germany), DB Netz AG (Frankfurt am Main, Germany), DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J. Brückner and O. Mross, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Commission's inspection decision of 14 July 2011, notified on 26 July 2011;

— Annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

— In particular order the Commission to return all the copies of the documents made during the inspections, on pain of annulment of the future Commission decision by the General Court; and

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 5230 of 14 July 2011 (Case COMP/39.678 — DB I and Case COMP/39.731 — DB II), ordering, in accordance with Article 20(4) of Regulation No 1/2003, inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter, by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group.

In support of the action, the applicants rely on five pleas in law:

1. First plea: infringement of the fundamental right to inviolability of one's premises by reason of lack of prior judicial authorisation.

2. Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from a factual and legal point of view.

3. Third plea: unlawfulness of the inspection decision, as it is based on information obtained by the Commission in infringement of defence rights. The information was obtained by the Commission in the course of implementing the inspection decision of 14 March 2011 in the context of a very broad inquiry (‘fishing expedition’). The information obtained when implementing the second inspection decision of 30 March 2011 was also unlawful because the decision on which that search was based also relied on the unlawfully obtained information and that information had also been obtained on the basis of an unlawful inspection decision.

4. Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific description of the subject-matter of the inspection.

5. Fifth plea: infringement of the principle of proportionality.

The Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.
1.

First plea in law, alleging breach of essential procedural requirements, is in two parts based on: — first, the lack and insufficiency of the statement of reasons, on the ground that the Commission does not state, for two of the four contracts concerned, the justification and evidence on which the contested decision is based for the conclusion that the eligible costs be adjusted; — second, breach of the rights of the defence, on the ground that the Commission opposes Technion — Israel Institute of Technology being made aware of and commenting on the documents on which the decision is based.
EN Official Journal of the European Union C 6/19

Action brought on 19 October 2011 — MIP Metro v OHIM — Real Seguros (real,- BIO)

(Case T-549/11)

2012/C 6/35

Language in which the application was lodged: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Real Seguros, SA (Porto, Portugal)

Form of order sought

— Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registrations No 249791, No 249793 and No 254390; In case that the request for the stay of proceedings is not granted, to continue the proceeding and to;

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 August 2011 in case R 115/2011-4; and

— Order the defendant to pay the costs, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The international trade mark registration No W 983684 of the figurative mark ‘real,- BIO’, in green, white and brown, for services in class 36

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 in opposition: Portuguese trade mark registration No 249791 of the word mark ‘REAL’, for services in class 36; Portuguese trade mark registration No 249793 of the word mark ‘REAL SEGUROS’, for services in class 36; Portuguese figurative mark registration No 254390 comprising the word element ‘REAL’, for services in class 36; various unregistered rights claimed to be protected in all Member States or in Portugal

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there would be a likelihood of confusion between the applied mark and the opposed marks.