ddrg/super_eurlex huggingface dataset:
7.

Seventh plea in law, alleging error in the establishment of the burden of proof, insofar as the Civil Service Tribunal rejected, for lack of evidence, the appellant’s plea that at least one of the members of the respondent’s Joint Committee for Appraisals was in conflict of interest, although said evidence consisted in documents identified in the application at first instance and readily available to the respondent; in the alternative, the Tribunal failed to observe its duty, as an administrative court of law adjudicating an employment dispute, of ordering the necessary measures of organisation of procedure in order to obtain said documents. Moreover, the Tribunal misread the legal basis of the appellant’s plea and misinterpreted Article 9(6) of the Implementing rule No 20 on Appraisals (‘the Implementing rule’), adopted by the director of the ECDC on 17 April 2009.
EN Official Journal of the European Union C 101/26

Action brought on 8 February 2013 — Boehringer Ingelheim Pharma/OHIM — Nepentes (Momarid)

(Case T-75/13)

2013/C 101/55

Language in which the application was lodged: English

Parties

Applicant: Boehringer Ingelheim Pharma (Ingelheim, Germany) (represented by: V. von Bomhard and D. Slopek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nepentes S.A. (Warsaw, Poland)

Form of order sought

The applicant claims that the Court should:

— Annul OHIM’s Fourth Board of Appeal’s decision of 28 November 2012 in Case R 2292/2011-4 in so far as it allowed registration of the mark MOMARID in respect of sanitary preparations for medical purposes; dietetic substances adapted for medical use; pharmaceutical and medical preparations, substances and products for protecting, maintaining, treating or conditioning for the skin, body, face, mouth, lips, eyes, hair, hands and nails; pharmaceutical and medical preparations and substances for the care and appearance of the skin, body, face, mouth, lips, eyes, hair, hands and nails; pharmaceutical and medical products and preparations for slimming purposes; dermatological pharmaceutical products, preparations and substances; dermatological preparations for the prevention and treatment of skin disorders; dermatological preparations (medicated); pharmaceutical preparations for the treatment of dermatological disorders; pharmaceutical preparations for the topical treatment of dermatological disorders; dermatological medicinal products; veterinary pharmaceutical preparations for dermatological use; veterinary medicinal products for treatment of hormonal disorders; hormones for medical purposes; hormone preparations for veterinary use; hormones; steroid products, hormone preparations for pharmaceutical and medical use; hygiene products; chemicals for pharmaceutical use (the ‘Contested Goods’);

— Order that the costs of the proceedings be borne by the defendant, or — in the event that the other party before OHIM intervenes on the side of the defendant — that they be borne jointly by the defendant and the intervener

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 word mark ‘Momarid’ , for goods and services in class 5 — Community trade mark application No 9 164 328

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

Mark or sign cited in opposition: Community trade mark No 2 396 448 of the mark ‘LONARID’ for goods in class 5

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal in part

Pleas in law: Infringement of Article 75 of Council Regulation No 207/2009 in conjunction with Rule 50(2)(h) Commission Regulation No 2868/95 and Article 8(1)(b) of Council Regulation No 207/2009.
—

consequently, annul Decision 2012/739/CFSP of 29 November 2012 and Regulation No 1117/2012 (EU) of 29 November 2012 and their subsequent implementing measures, in so far as they concern the applicant;
1.

First plea in law, alleging that the applicant does not assist designated entities to violate the provisions of EU regulation on Iran and does not provide financial support to the government of Iran. It is neither being used to channel Iranian oil-related payment. Accordingly, the substantive criteria for designation under the challenged Annexes of the Decision 2012/829/CFSP of 21 December 2012 and Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 are not met in respect of the applicant and/or the Council committed a manifest error of assessment in determining whether or not those criteria were met. The Council also failed to apply the correct test.
EN Official Journal of the European Union C 108/30

Action brought on 4 February 2013 — Langguth Erben v OHIM (Representation of a bottle)

(Case T-66/13)

2013/C 108/75

Language of the case: German

Parties

Applicant: Franz Wilhelm Langguth Erben GmbH & Co. KG (Traben-Trarbach, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2012 in Case R 129/2012-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark, representing a bottle, for goods in Class 33 — Community trade mark application No 10 005 866

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Articles 7(1)(b), 7(2), 75, 76(1) and 77 of Regulation No 207/2009
EN Official Journal of the European Union C 141/25

Action brought on 20 March 2013 — Selo Medical v OHIM — biosyn Arzneimittel (SELOGYN)

(Case T-173/13)

2013/C 141/46

Language in which the application was lodged: German

Parties

Applicant: Selo Medical GmbH (Unternberg, Austria) (represented by: T. Schneider, lawyer)

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

Other party to the proceedings before the Board of Appeal: biosyn Arzneimittel GmbH (Fellbach, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 January 2013 in Case R 2601/2011-4 and reject the opposition against the Community trade mark application;

— Order OHIM or the potential intervener to pay the costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘SELOGYN’ for goods in Class 5 — Community trade mark application No 9 049 016

Proprietor of the mark or sign cited in the opposition proceedings: biosyn Arzneimittel GmbH

Mark or sign cited in opposition: the national word mark ‘SELESYN’ for goods and services in Classes 5, 29 and 44

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 147/26

Action brought on 15 March 2013 — Sun Capital Partners/OHIM — Sun Capital Partners (SUN CAPITAL)

(Case T-164/13)

2013/C 147/47

Language in which the application was lodged: English

Parties

Applicant: Sun Capital Partners, Inc. (New York, United States) (represented by: P.-A. Dubois, Solicitor, D. Alexander, QC and F. Clark, Barrister)

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

Other party to the proceedings before the Board of Appeal: Sun Capital Partners Ltd (London, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision of the Board; and/or

— Remit the matter for further consideration by the Board;

— Order the defendant to pay the costs of the proceedings, including the costs incurred by the applicant before the Board;

— Order SCPL to pay the costs of the proceedings, including the costs incurred by the applicant before the Board, in the event that SCLP becomes an intervening party in these proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘SUN CAPITAL’– Community trade mark registration No 2 942 654

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Articles 53(1)(c) and 8(4) of Council Regulation No 207/2009

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 53(1) in conjunction with 8(4) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 108/31

Action brought on 7 February 2013 — Red Bull/OHIM — Sun Mark (BULLDOG)

(Case T-78/13)

2013/C 108/79

Language in which the application was lodged: English

Parties

Applicant: Red Bull GmbH (Fuschl am See, Austria) (represented by: A. Renck and I. Fowler, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sun Mark Ltd (Middlesex, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of OHIM of 16 November 2012 in Case R 0107/2012-2; and

— Order that the costs of the proceedings be borne by the defendant and by the other party to the proceedings before the Board of Appeal if they join as intervener.

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 word mark ‘BULLDOG’, for goods in classes 32 and 33 — Community trade mark application No 9 215 567

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

Mark or sign cited in opposition: National and international trade mark registrations of the word mark ‘BULL’ and ‘RED BULL’ for goods in classes 32 and 33

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Articles 8(1)(b) and (5) of Council Regulation No 207/2009.
2.

Second plea in law, alleging that by setting an arbitrary standard for verifiability of efficiencies, the Commission erred in law and diverged from the standard set by the case law. Further, the Commission erred in law and committed a manifest error of assessment in assigning insufficient or zero weight to efficiencies that it accepted in principle. Finally the Commission breached UPS’ rights of defence by basing its rejection of efficiencies on objections that UPS had not been confronted with previously.
EN Official Journal of the European Union C 156/52

Action brought on 12 April 2013 — Versalis v Commission

(Case T-210/13)

2013/C 156/98

Language of the case: Italian

Parties

Applicant: Versalis SpA (San Donato Milanese, Italy) (represented by: M. Siragusa, F. Moretti and L. Nascimbene, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the contested measures and order the Commission to pay the costs.

Pleas in law and main arguments

The present dispute concerns a request for the annulment of the European Commission’s decision of 26 February 2013 [C(2013) 1200 final], together with the statement of objections [C(2013) 1199 final] by which the Commission had formally initiated the procedure in AT.40032 — BR/ESBR — Recidivism, with the intention of amending Decision C(2006) 5700 final of 29 November 2006, adopted in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber, partially annulled and varied by the General Court of the European Union by judgments of 13 July 2011 in Case T-39/07 Eni v Commission and Case T-59/07 Polimeri Europa v Commission.

By its sole plea, the applicant alleges that the Commission lacked competence to reopen the proceedings against it with a view to the adoption of a new infringement decision. In particular, the applicant maintains that the Commission’s power to impose penalties on the applicant in connection with the matters covered by the procedure in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber was exhausted following the adoption of the decision of 29 November 2006 (C(2006) 5700 final), partially annulled and varied by the General Court of the European Union by judgments of 13 July 2011 in Case T-39/07 Eni v Commission and Case T-59/07 Polimeri Europa v Commission, currently under appeal before the Court of Justice. By reopening the procedure, the Commission intends to revise the substance of the grounds of the decision of 29 November 2006, that is to say, to undertake a new appraisal of the evidence against the applicant, which had already been established and on which the General Court had already expressed its views in the exercise of its full jurisdiction to review legality. Accordingly, the reopening of the infringement procedure, in terms of purpose and effects, is manifestly contrary to the principles of ne bis in idem, of legal certainty, of the protection of legitimate expectations and of effective judicial protection.
EN Official Journal of the European Union C 123/17

Action brought on 12 February 2013 — Herdade de S. Tiago II/OHIM — Polo/Lauren (V)

(Case T-90/13)

2013/C 123/29

Language in which the application was lodged: English

Parties

Applicant: Herdade de S. Tiago II-Sociedade Agrícola, SA (Lisboa, Portugal) (represented by: I. de Carvalho Simões and J. Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Polo/Lauren Company, LP (New York, United States)

Form of order sought

The applicant claims that the Court should:

— Grant the appeal and annul the decision of the Second Board of Appeal of OHIM dated 28 November 2012 in Case R 1436/2010-2;

— Order the respondent to pay the costs of the appeal proceedings before the General Court, including those of the appellant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark representing a polo player on horseback and the word element ‘V’ for goods and services in classes 3, 18, 25, 28, 41 and 43 — Community trade mark application 5 791 835

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: Community trade mark registration, UK trade mark registration and Benelux trade mark registration of the figurative mark representing a polo player for goods in classes 9, 18, 20, 21, 24, 25 et 28

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) and (5) of Council Regulation No 207/2009.
3.

Third plea in law, alleging erroneous determination of the amount of aid on the basis of several calculation errors In calculating the amount of the aid, the Commission made three serious errors. First, the Commission failed to take into account the fact that only 50 % of the reduction in the price of the land and of the waiver of fees was to be financed from public funds. Secondly, the Commission failed to take into account the earlier price reductions of 2006 and 2008 when calculating the reduction in the price of the land. Thirdly, the Commission calculated the fees on the basis of the Leidschendam Centrum project area, instead of that of the Damplein sub-project. Interest paid from 2004 to 2010 was also disregarded. The Commission thus proceeded on the basis of incorrect facts when calculating the amount of the aid, as a result of which the aid figure of EUR 6 922 121 is incorrect.
1.

In support of the appeal, the appellant relies on a certain number of grounds of appeal alleging the following errors of law: — the Civil Service Tribunal interpreted the judgment of 14 December 2011 in Case T-563/10 P De Luca v Commission as restricting the examination of the legality of the contested decision at first instance solely to the effects of the application by analogy of the rules on recruitment without taking into account the pre-eminence of the applicable provisions concerning normal career progression; — the Civil Service Tribunal held that Article 12(3) of Annex XIII to the Staff Regulations of Officials of the European Union could lawfully apply by analogy, but stated that that did not constitute an advantage for the appellant in terms of career and that the limited advantage in terms of remuneration would ultimately disappear; — the Civil Service Tribunal did not carry out an examination of the legality of Article 12(3) of Annex XIII to the Staff Regulations and of its application by analogy to the appellant taking into account the principle of equal treatment and of the right to reasonable career prospects; — it is for the Civil Service Tribunal to ascertain, and not for the appellant to establish, the manifestly inappropriate nature of the application of Article 12(3) of Annex XIII to the Staff Regulations; — the Civil Service Tribunal rejected at the outset, without an in-depth examination, the appellant’s argument alleging infringement of the principle of equal treatment resulting from the fact that the eligibility of officials for promotion under Article 45 of the Staff Regulations is maintained notwithstanding the amendments to the Staff Regulations which have taken place, although this does not, on account of the application of Article 12(3) of Annex XIII to the Staff Regulations, apply to the appellant.
4.

Fourth plea in law, alleging misapplication of the ‘privacy and integrity of the individuals’ exception provided for in Article 4(1)(b) of Eurojust’s rules regarding access to documents Eurojust has neither asserted nor established that the documents requested contain third parties’ personal data. Furthermore, the mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of an individual is affected. Any statements that may have been made by officials that were not made in a personal capacity cannot justify the withholding of the information requested. In so far as the integrity and privacy of individuals are at issue, Eurojust ought to have considered whether and how the documents requested could have been supplied — if necessary in anonymised form or in part only. Eurojust also failed, erroneously, to do so.
—

The applicants maintain in this regard that the decision of SACE S.p.A. to offer reinsurance capacity, taking advantage of opportunities afforded by a phase in the economic cycle in which insurance premiums were high, was adopted without any intention of providing SACE BT with assistance or support. Moreover, only the parent company gained any economic advantage from the reinsurance relationship. Furthermore, the Commission’s observations concerning the positive correlation between the volume of risk assumed and the rate requested are not confirmed either by the reference literature or market practice, not even so far as SACE BT in particular is concerned. Lastly, the applicants do not consider persuasive the Commission’s attempt to ‘export’ to different contexts and measures the alleged rule of thumb applied by it, without a detailed statement of reasons, in the case of the Portuguese rules on short-term export credit insurance, in order to establish that the amount of the commission paid to SACE S.p.A. should have been at least 10 % higher than that of the commission applied by private reinsurers in relation to the smaller portion of reinsurance and risk assumed by them.
EN Official Journal of the European Union C 178/10

Action brought on 29 January 2013 — Rose Vision and Seseña v Commission

(Case T-45/13)

2013/C 178/19

Language of the case: Spanish

Parties

Applicants: Rose Vision, SL (Seseña, Spain) and Julián Seseña (Pozuelo de Alarcón, Spain) (represented by: M. Muñiz Bernuy and A. Alonso Villa, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

— annul the decisions to suspend agreed payments;

— remove Rose Vision, SL from the Central Exclusion Database and the Early Warning System (EWS);

— order the defendant to pay EUR 5 000 624 in damages.

Pleas in law and main arguments

One of the two applicants, an undertaking principally engaged in telecommunications, research and development (R&D) and consultancy services in telecommunications, research and innovation, has worked on numerous projects with the Commission since 2002.

This action has arisen out of two audits of the applicant undertaking carried out between February and April 2011. The audit reports allege a series of failures and irregularities on the part of the applicant undertaking, which were the basis for the suspension of outstanding payments.

The applicants claim that those allegations do not reflect reality. They maintain that it can in fact be seen from a careful reading of one of the two audit reports mentioned above that the aim informing the report was to make an unjustified attack on the applicants for the purpose of discrediting them. In this way, the audit report is mostly based on unverified information. The Commission’s approach is more akin to an investigative, supervisory or inspection-related approach than to that of an audit, in which information must be verified and the reliability of sources ensured.

All of this has caused the applicant undertaking serious harm, not only of an economic nature but also to its professional reputation and to its credibility.
2.

Second plea, alleging infringement of Article 260(1) and the second subparagraph of Article 260(3) TFEU: infringement of the judgment being executed, resulting from an erroneous interpretation of the paragraph of that judgment in which it is provided, for the purposes of calculating the penalty payment due for each six-month period, that account is not to be taken of the amount of aid ‘that has not yet been recovered, or not shown to have been recovered, at the end of the period concerned’. — The Italian government submits that that executory paragraph of the judgment must be interpreted as meaning that, for the purposes of that assessment, it is the production of the supporting evidence for the six-month reference period that is important and not the fact that it had been brought to the Commission’s attention before the end of that six-month period. The Italian government considers that the Commission’s interpretation to the contrary, according to which the Italian government is obliged to submit any evidence for the calculation of the six-monthly penalty payment by the last day of the relevant six-month period at the latest, thus excluding from the calculation any amount which was recovered during that period but which was only communicated afterwards to the Commission, is contrary to the principle of loyal cooperation and is not justified by the requirement imposed by the Court, which results in shortening in an impermissible manner the time at the Italian authorities’ disposal to comply with that requirement and thereby reduce that six-monthly penalty amount.