ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/53

Action brought on 14 September 2010 — ArcelorMittal España v Commission

(Case T-399/10)

()

2010/C 301/84

Language of the case: English

Parties

Applicant: ArcelorMittal España, SA (Gozón, Spain) (represented by: A. Creus Carreras and A. Valiente Martin, lawyers)

Defendant: European Commission

Form of order sought

— annul Articles 1, 2, 3 and 4 of the Decision insofar as they relate to ArcelorMittal España, S.A.;

— in the alternative, annul the fine imposed on ArcelorMittal España, S.A.;

— and, as a further alternative, decrease the amount of the fine imposed on ArcelorMittal España, S.A.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment of Article 1, 2, 3 and 4 of Commission decision C(2010) 4387 final of 30 June 2010 in Case COMP/38.344 — Pre-stressing steel, by which the Commission found that the applicants, together with other undertakings had infringed Article 101 TFEU and Article 53 EEA by participating in a continuing agreement or concerted practice in the pre-stressing steel sector at the pan-European and/or national/regional levels. Furthermore, it seeks the annulment or reduction of the fine imposed on it.

In support of the action, the applicant relies on 6 pleas in law.

First, the applicant claims that the Commission has violated the fundamental right to an impartial tribunal provided for in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) and Article 47 of the Charter of Fundamental Rights insofar as the fine was imposed by an administrative authority which holds simultaneously powers of investigation and sanction.

Second, it submits that the Commission has committed the errors in the calculation of the fine, which led to a larger fine being imposed on the applicant.

Third, it contends that the Commission has erroneously found that the applicant exercised decisive influence on Emesa and Galycas’ prior to December 1997.

Fourth, it argues that the Commission has illegally refused to grant the applicant a partial immunity under paragraph 23 of the 2002 Leniency Notice (1), although it provided decisive evidence on the duration and gravity of the infringement and thus, fulfilled the requirements stated therein.

Finally, the applicant claims that the Commission has incorrectly applied the ‘specific increase for deterrence’ provided for in paragraph point 30 of the Commission 2006 Fining Guidelines (2), resulting in an illegal 20 % increase of the fine imposed on the applicant.

(1) Commission notice on immunity from fines and reduction of fines in cartel cases, OJ 2002 C 45, p. 3

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, OJ 2006 C 210, p. 2
EN Official Journal of the European Union C 301/55

Action brought on 15 September 2010 — Emesa-Trefilería and Industrias Galyca v Commission

(Case T-406/10)

()

2010/C 301/87

Language of the case: English

Parties

Applicants: Emesa-Trefilería, SA (Arteixo, Spain) and Industrias Galyca, SA (Vitoria, Spain) (represented by: A. Creus Carreras and A. Valiente Martin, lawyers)

Defendant: European Commission

Form of order sought

— annul the contested Decision insofar as it affects the applicants;

— in the alternative, cancel or reduce the fine imposed on the applicants;

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment of Commission decision C(2010) 4387 final of 30 June 2010 in Case COMP/38.344 — Pre-stressing steel, by which the Commission found that the applicants, together with other undertakings, had infringed Article 101 TFEU and Article 53 EEA by participating in a continuing agreement or concerted practice in the pre-stressing steel sector at the pan-European and/or national/regional levels. Furthermore, they seek the annulment or reduction of the fine imposed on them.

In support of the action, the applicants rely on three pleas in law.

First, they claim that the Commission has violated the fundamental right to an impartial tribunal provided for in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) and Article 47 of the Charter of Fundamental Rights in so far as the fine was imposed by an administrative authority which holds simultaneously powers of investigation and sanction.

Second, they submit that the Commission has illegally refused to grant the applicants a reduction of their fines under the 2002 Leniency Notice (1), since the decision relies extensively on evidence originating from Emesa.

Finally, they contend that the Commission has illegally refused to grant the applicants a partial immunity under paragraph 23 of the 2002 Leniency Notice, although Emesa provided decisive evidence having a bearing on the duration and gravity of the infringement.

(1) Commission notice on immunity from fines and reduction of fines in cartel cases, OJ 2002 C 45, p. 3
EN Official Journal of the European Union C 301/46

Action brought on 6 September 2010 — Productos Derivados de Acero v Commission

(Case T-388/10)

()

2010/C 301/73

Language of the case: Spanish

Parties

Applicant: Productos Derivados de Acero, SA (Catarroja, Spain) (represented by: M.B. Escuder Tella, J. Viciano Pastor and F. Palau Ramirez, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested decision [C(2010) 4387 final] on the ground that the five-year limitation period prescribed in Article 25 of Regulation (EC) No 1/2003 in respect of the imposition of penalties has expired;

— in the alternative, in the event that the first claim does not succeed, annul the contested decision in so far as it finds that Productos Derivados de Acero, S.A (PRODERAC) participated in the restrictive agreements described in the contested decision and declare that that company did not participate in the collusive conduct as alleged;

— in the alternative, in the event that the second claim does not succeed either, annul the contested decision in so far as it reduces the fine imposed on Productos Derivados de Acero, S.A (PRODERAC) by only 25 % and declare PRODERAC exempt from the fine in application of the 2006 Guidelines on the method of setting fines on the ground that its inability to pay has been established;

— in the further alternative, in the event that the third claim also fails, annul the contested decision in so far as it reduces the fine imposed on Productos Derivados de Acero, S.A (PRODERAC) by only 25 % and declare the fine to be reduced by 75 %;

— order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision in these proceedings is the same as in Case T-385/10 ArcelorMittal Wire France and Others v Commission.

In support of its action, the applicant advances the following pleas in law:

1. Preliminary issue: limitation period for the imposition of penalties. It is maintained in this regard that the limitation period for the imposition of penalties in respect of anti-competitive conduct expires five years from the last action taken for the purpose of the proceedings and that between the end date of the cartel, 19 September 2002, and the notification of the statement of objections, 30 September 2008, the limitation period was not interrupted.

2. Misapplication of Article 101 TFEU, Article 53 of the EEA Agreement and of the case-law of the Community Courts concerning those provisions, in so far as: — the applicant gave no express indication of its intention to participate in the agreements and concerted practices, nor can any such intention be implicitly inferred from any other circumstances; — the applicant clearly and publicly distanced itself from the collusive agreements inasmuch as its participation in meetings had no impact on its commercial conduct. In that regard, the failure to implement the collusive agreements is proof that the applicant’s participation in meetings did not influence its market conduct.
EN Official Journal of the European Union C 301/43

Action brought on 7 September 2010 — Continental Bulldog Club Deutschland v OHIM

(Case T-383/10)

()

2010/C 301/69

Language in which the application was lodged: German

Parties

Applicant: Continental Bulldog Club Deutschland eV (Berlin, Germany) (represented by S. Vollmer, lawyer)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 June 2010 in Case R 300/2010-1;

— In the alternative, annul the contested decision, in so far as it concerns goods and services in Class 44;

— Order the defendant to pay the costs of the proceedings, including those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘CONTINENTAL’ for goods in Classes 31 and 44.

Decision of the Examiner: Registration was refused.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009, (1) since the Community trade mark in question is distinctive and is not descriptive.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
—

an insufficient statement of reasons, errors in law and of fact and manifest errors of assessment on the ground that the Commission concluded that the possibility of establishing the existence of an infringement was very limited, since the Commission: — did not seek to examine the question of the discriminatory character of the prices actually invoiced by reference to the services actually supplied and wrongly asserted that the preliminary investigation had not revealed any documentary or other evidence; — decided that the calculation method used by France Télécom to set its tariffs for access to the local loop was validated by the Autorité de régulation des communications électroniques et des postes (Electronic Communications and Postal Regulation Authority) (ARCEP) and considered that the fact that France Télécom had sent it erroneous information without seeking to correct it was irrelevant in view of the method used; — distorted the object of the eviction tests submitted by the applicant, which was to establish the effects of the practices complained of;
EN Official Journal of the European Union C 301/59

Action brought on 13 September 2010 — Cortés del Valle López v OHIM (HIJOPUTA)

(Case T-417/10)

()

2010/C 301/94

Language of the case: Spanish

Parties

Applicant: Federico Cortés del Valle López (Maliaño, Spain) (represented by J. Calderón Chavero, lawyer)

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

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) (OHIM) of 18 June 2010 in case R 175/2010-2;

— consequently, annul the OHIM examiner’s decision of 24 November 2009;

— uphold the applicant’s claims;

— order the defendant to pay the costs of the present proceedings should they be contested and reject its contentions.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark containing the word element ‘¡Que buenu ye! HIJOPUTA’ for goods and services in Classes 33, 35 and 39.

Decision of the Examiner: Application for a Community trade mark refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: No infringement of Article 7(1)(f) of Regulation No 207/2009, (1) as the mark applied for is not contrary to accepted principles of morality.

(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 317/46

Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission

(Case T-451/10)

()

2010/C 317/81

Language of the case: German

Parties

Applicant: Fuchshuber Agrarhandel GmbH (Hörsching, Austria) (represented by: G. Lehner, lawyer)

Defendant: European Commission

Form of order sought

— conduct a hearing;

— order the Commission of the European Communities to pay the applicant within 14 days the sum of EUR 2 623 282,31, together with interest of 6 % per annum on the sum of EUR 1 641 372,50 Euro from 24 September 2007 and interest of 6 % per annum on the sum of EUR 981 909,81 from 16 October 2007;

— declare that the Commission of the European Communities is obliged to compensate the applicant for any further losses in connection with consignment KUK459 awarded on 3 September 2007 and consignment KUK465 awarded on 17 September 2007;

— rule that the Commission of the European Communities is to pay to the applicant’s lawyer the applicant’s costs within 14 days.

Pleas in law and main arguments

The applicant seeks compensation for the loss which it states that it has incurred because certain quantities of the maize purchased by it in 2007 from the stocks of the Hungarian intervention agency in two tender procedures were missing from the relevant warehouses.

In the grounds of its application, the applicant submits inter alia that the Commission failed to exercise its supervisory powers over the Hungarian paying agency and also did not insist on observance of the Hungarian paying agency’s obligations. It further states that it would have suffered no loss if the Commission had, in law and in fact, laid down more stringent and more precise requirements and control mechanisms in relation to the warehouse keepers’ fitness and reliability, to the suitability of the storage locations, and to stock surveys in respect of, and the identification and storage of, the intervention goods.
EN Official Journal of the European Union C 328/55

Action brought on 7 October 2010 — Bank Saderat Iran v Council

(Case T-494/10)

()

2010/C 328/84

Language of the case: English

Parties

Applicant: Bank Saderat Iran (Tehran, Iran) (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;

— 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.

The three pleas in law relied on by the applicant are identical or similar to the first, second and fifth pleas 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
EN Official Journal of the European Union C 328/32

Action brought on 8 September 2010 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

(Case T-404/10)

()

2010/C 328/55

Language in which the application was lodged: English

Parties

Applicant: National Lottery Commission (London, United Kingdom) (represented by: B. Brandreth, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Mediatek Italia Srl (Napoli, Italy), Giuseppe De Gregorio (Napoli, Italy)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in case R 1028/2009-1;

— Remit the case to the Cancellation Division;

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a hand with two crossed fingers and a smiling face for goods and services in classes 9, 16, 25, 28 and 41 — Community trade mark registration No 4800389

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) and 53(2)(c) of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 53(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in law in its assessment of this article and in its approach to the assessment of the facts, and failed to exercise its powers of investigation. The applicant also considers that the Board of Appeal failed to exercise the full remit of its powers under Article 78 of Council Regulation (EC) No 207/2009.
EN Official Journal of the European Union C 346/51

Action brought on 18 October 2010 — Mayer Naman v OHIM — Daniel & Mayer (David Mayer)

(Case T-498/10)

()

2010/C 346/101

Language in which the application was lodged: Italian

Parties

Applicant: David Mayer Naman (Rome, Italy) (represented by: S. Sutti, lawyer, S. Cazzaniga, lawyer, and V. Fedele, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Daniel & Mayer Srl (Milan, Italy)

Form of order sought

The applicant claims that the Court should:

— vary the contested decision in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element ‘David Mayer’ (registration application No 1518950), to designate inter alia goods in Classes 18 and 25

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Daniel & Mayer Srl

Trade mark right of applicant for the declaration: Italian word mark ‘DANIEL & MAYER MADE IN ITALY’ (No 472351), to designate goods in Class 25, and the unregistered word mark ‘DANIEL & MAYER’, used in Italy in relation to the ‘manufacture and sale of garments and accessories’

Decision of the Cancellation Division: Application for a declaration of invalidity upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement and misapplication of Article 8 of Regulation No 207/2009
EN Official Journal of the European Union C 30/50

Action brought on 22 November 2010 — XXXLutz Marken v OHIM — Meyer Manufacturing (CIRCON)

(Case T-542/10)

()

2011/C 30/89

Language in which the application was lodged: German

Parties

Applicant: XXXLutz Marken GmbH (Wels, Austria) (represented by: H. Pannen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Meyer Manufacturing Co. Ltd (Hong Kong, China)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2010 in Case R 40/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘CIRCON’ for goods in Classes 7, 11 and 21.

Proprietor of the mark or sign cited in the opposition proceedings: Meyer Manufacturing Company Limited.

Mark or sign cited in opposition: Word mark ‘CIRCULON’ for goods in Classes 11 and 21.

Decision of the Opposition Division: Refusal in part of registration.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue, and infringement of Article 76(2)(2) of Regulation (EC) No 207/2009, since the Board of Appeal took into account in its decision facts which were not put forward by the other party to the proceedings before the Board of Appeal.

(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 13/32

Action brought on 10 November 2010 — Comunidad Autónoma de Galicia v Commission

(Case T-520/10)

()

2011/C 13/62

Language of the case: Spanish

Parties

Applicant: Comunidad Autónoma de Galicia (Santiago de Compostela, Spain) (represented by: S. Martínez Lage and H. Brokelmann, lawyers)

Defendant: Commission

Form of order sought

— Annul Decision N 178/2010 of 29 September 2010 approving public-service compensation for Spanish electricity producers;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the same decision as that challenged in Case T-484/10 Gas Natural Fenosa SDG v Commission.

The applicant puts forward three pleas in support of its action:

— Infringement of procedural rights ensured by Article 108(2) TFEU and Article 6 of Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (1) since the Commission failed to initiate the formal investigation procedure, which it is obliged to do whenever there are serious doubts as to the compatibility of the aid under consideration with the common market.

— Infringement of Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (2).

— Infringement of Article 106(2) TFEU, inasmuch as the conditions of necessity and proportionality required by that provision if the aid in the present case, which was granted by the Spanish authorities to compensate for the additional costs resulting from the provision of a public service, is to be approved are not met.

— Infringement of Article 34 TFEU, since the aid in the present case is a measure having equivalent effect, which cannot be justified under Article 36 TFEU by the need to secure the electricity supply.

— The aid in the present case constitutes an undue cumulation of aid granted to the coal industry in the period 2008-2010, contrary to the provision made in Article 8(1) of Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry, (3) and seriously distorts competition in the electricity sector, disregarding Article 4(d) and (e) of Regulation No 1407/2002.

— Infringement of Articles 11 and 191 TFEU and of Article 3(3) TEU, since the contested decision fails, in the applicant’s submission, to have to regard to the damaging effects which the decision will have so far as the environment is concerned.

Finally, the applicant alleges breach of the right to property safeguarded by Article 17 of the Charter of Fundamental Rights of the European Union.

(1) OJ 1999 L 83, p. 1.

(2) OJ 2002 L 205, p. 1

(3) OJ 2002 L 205, p. 1.