ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 113/43

Action brought on 27 March 2009 — Al Shanfari v Council and Commission

(Case T-121/09)

2009/C 113/87

Language of the case: English

Parties

Applicant: Thamer Al Shanfari (represented by: P. Saini, QC, T. Nesbitt and B. Kennelly, Barristers, A. Patel, N. Sheikh, and K. Mehta, Solicitors)

Defendant: Council of the European Union and Commission of the European Communities

Form of order sought

— the annulment of Council Regulation (EC) No 314/2004 as amended by Commission Regulation (EC) No 77/2009, in so far as it concerns the applicant; and

— an order that the Council and the Commission pay the applicant’s costs of this action.

Pleas in law and main arguments

By operation of Council Regulation (EC) No 314/2004 (1) as amended by Commission Regulation (EC) No 77/2009 (2) (‘the Contested Regulation’), all of the applicant’s funds within the Member States of the European Union have been frozen with the effect of preventing him from doing business in the EU, as well as being branded as having ties to the repressive regime in Zimbabwe and as being implicated in activities that seriously undermine democracy, respect of human rights and the rule of law. In addition, the applicant is subject to a travel ban pursuant to Article 4 of Council Common Position 2004/161/CFSP (3).

The applicant contends that the Contested Regulation should be annulled on the following grounds, each of which is addressed below:

First, the applicant submits that the Contested Regulation has no proper legal basis since neither Article 60 EC nor Article 301 EC give the Council the power to freeze the entirety of an individual’s funds who is not connected with the Government of Zimbabwe.

Second, according to the applicant’s submissions, the Contested Regulation infringes the Council and the Commission’s obligation to state reasons under Article 253 EC since the brief statement relating to the applicant in Annex III is manifestly inadequate and the Council Common Position which subjects the applicant to a travel ban provides no further particulars.

Third, the applicant claims that the Contested Regulation infringes the applicant’s fundamental rights, by interfering with his rights to effective judicial protection and to a fair hearing; as well as by interfering to a disproportionate extent with his rights to peaceful enjoyment of his property.

(1) Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1)

(2) Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5)

(3) Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ L 50, p. 66)
EN Official Journal of the European Union C 141/52

Action brought on 9 April 2009 — Trelleborg v Commission

(Case T-148/09)

2009/C 141/107

Language of the case: English

Parties

Applicant: Trelleborg AB (Trelleborg, Sweden) (represented by: J. Joshua, Barrister and E. Aliende Rodríguez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul in part Article 1 of the contested decision insofar as it relates to the applicant and in any event at least insofar as it finds the commission of any infringement by the applicant prior to 21 June 1999;

— reduce the fine imposed on the applicant in Article 2 so as to correct the manifest errors in the decision;

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

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009) 428 Final of 28 January 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/39406 — Marine Hoses insofar as it holds it liable for participation in a single and continuous infringement in the marine hose sector in the EEA, which consisted of allocating tenders, fixing prices, fixing quotas, fixing sales conditions, geographic market sharing, and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore, it seeks the reduction of the fine imposed on the applicants.

The applicant puts forward two pleas in law in support of its claims.

First, it submits that the Commission’s power to impose fines for any period before 21 June 1999 is time barred under Article 25(1) of Regulation 1/2003 as the applicant argues that the Commission made manifest error in fact and law in finding that the applicant had committed a single and continuous infringement.

Second, it claims that the Commission has no legitimate interest in making a declaratory finding of infringement for the first period which had come to an end in May 1997.
EN Official Journal of the European Union C 153/49

Action brought on 11 May 2009 — Spa Monopole v OHIM — Club de Golf Peralada (WINE SPA)

(Case T-183/09)

2009/C 153/93

Language in which the application was lodged: English

Parties

Applicants: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and O. Klimis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Club de Golf Peralada, SA (Barcelona, Spain)

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 2 March 2009 in joined cases R 1231/2005-4 and R 1250/2005-4; and

— Order OHIM to pay the costs

Pleas in law and main arguments

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

Community trade mark concerned: The word mark “WINE SPA”, for goods and services in classes 3, 5, 16, 24, 25 and 42

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

Mark or sign cited: Various national, international and Community trade mark registrations of the mark “SPA” for goods and services in classes 3, 32 and 42, respectively; Benelux and international trade mark registration of the mark “LES THERMES DE SPA” for goods and services in classes 3 and 42; German trade mark registration of the mark “SPA MONOPOLE S.A. SPA” for goods in class 3; S.A. SPA Monopole, Compagnie fermière de Spa, en abrégé S.A. Spa Monopole N.V., société anonyme, company name protected in Belgium; Les Thermes de Spa, Place Royale 2, 4900 Spa, Belgium, trade name protected in Belgium

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division and rejected the opposition in its entirety

Pleas in law: Infringement of Articles 75, second sentence and 76(1), second sentence of Council Regulation 207/2009 (1) as the decision of the Board of Appeal was taken in breach of the principle of the right to a fair hearing, as well as in breach of the adversarial principle; Infringement of Article 8(5) of Council Regulation 207/2009 as the Board of Appeal based its assessment of the distinctive character of the earlier trade mark “SPA” on erroneous and non-established elements and failed to assess the similarity between the trade marks concerned in relation to the goods for which they are registered or applied for. Finally, the Board of Appeal failed to examine whether the use of the Community trade mark concerned was likely to take unfair advantage of, or to be detrimental to the distinctive character and the reputation of the earlier mark “SPA”, thereby infringing Article 8(5) of Council Regulation 207/2009.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, JO L 78, p. 1
EN Official Journal of the European Union C 167/23

Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission

(Case T-216/09)

2009/C 167/45

Language of the case: Italian

Parties

Applicants: Astrim SpA (Rome, Italy) and Elyo Italia Srl (Sesto San Giovanni, Italy) (represented by: M. Brugnoletti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission’s decision which found to be incomplete the bid submitted by the applicant group in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre, (1) communicated by letter of 27 March 2009 and supplemented by a communication of 3 April 2009, together with all subsequent and related decisions, including the decision to award the tender to other undertakings.

— In the alternative, annul point 17 of call for tenders No 2008 — C04 005, in so far as it laid down a general criterion for elimination from the tendering procedure.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants in this case seek the annulment of the decision by which the Commission eliminated the bid they submitted in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre and awarded the contract to other companies.

The applicants put forward three grounds in support of their application:

By the first ground, the applicants submit that the Commission infringed point 17 of the invitation to tender, Articles 92 and 89 of Council Regulation No 1605/2002 (2) and the principles of transparency and equal treatment in so far as it decided to exclude the applicants’ bid on the basis of the incorrect assessment that it was incomplete since a number of prices were not stated, whereas the applicant group deliberately chose to offer a price of zero.

By their second ground, the applicants maintain that adequate reasons are not given for the elimination provision, in so far as point 17 of the invitation to tender does provide for automatic elimination where one part of the bid has not been completed but simply provides that elimination is possible, leaving the Commission free to decide whether or not to eliminate the tenderer. Since such a decision is discretionary, adequate reasons must be given for it, which was not the case as regards the elimination provision adopted by the Commission.

By the third ground, which is relevant only in the event that the Court does not uphold the first two grounds, the applicants seek the annulment of point 17 of the invitation to tender on the ground that it infringes Articles 92 and 89 of Council Regulation No 1605/2002 in so far as that point lays down a general elimination criterion.

(1) OJ 2008/S 2008-274999 of 25 October 2008.

(2) Council Regulation No 1605/2002 (EC, Euratom) of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities.
EN Official Journal of the European Union C 167/20

Action brought on 25 May 2009 — Abertis Infraestructuras v Commission

(Case T-200/09)

2009/C 167/39

Language of the case: Spanish

Parties

Applicant: Abertis Infraestructuras SA (Barcelona, Spain) (represented by: M. Roca Junyent and P. Callol García, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the contested decision, an order that the Commission pay the costs and any other appropriate order in law.

Pleas in law and main arguments

The measure against which this action is brought is the same as in Case T-58/09 Schemaventotto v Commission (OJ 2009 C 82, p. 34); namely, the legal act by virtue of which the European Commission closed proceedings under Article 21 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) (‘RCC’) relating to control of the concentration between the applicant and Autostrade S.p.A. (Case COMP/M. 4388 — Abertis/Autostrade).

In support of its action, the applicant claims that:

— The European Commission failed to fulfil its legal obligations by closing proceedings commenced under Article 21, without stating that infringements committed by Italy had harmed the rights of Abertis; and, in the alternative, the Commission erred in its analysis of compatibility with Community law and thereby failed to fulfil its obligations under Article 21 RCC.

— The Commission disregarded the essential procedural requirements established in Article 21 RCC. That infringement invalidates the Commission’s acts, by preventing full achievement of the objectives of Article 21 RCC.

— The Commission infringed the obligation to state the reasons for its acts.

— The Commission misused its powers because it issued a decision pursuant to a provision, Article 21 RCC, which did not permit it to issue that decision, which is within the scope of Article 226 EC, and thereby rendered nugatory the safeguards of Article 21 RCC, deprived Article 21 RCC of effectiveness and denied protection to the proposed concentration which the Commission itself had previously approved.

— The Commission infringed the general principles of legal certainty, good administration and the protection of legitimate expectations by failing to take action against the Member State, in circumstances where it had no discretion, thereby damaging the confidence of traders.
EN Official Journal of the European Union C 180/61

Action brought on 1 June 2009 — INEOS Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN)

(Case T-222/09)

2009/C 180/112

Language in which the application was lodged: English

Parties

Applicants: INEOS Healthcare Ltd (Warrington, United Kingdom) (represented by: S. Malynicz, Barrister and A. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel)

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 24 March 2009 in case R 1897/2007-2; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs, as well as those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “ALPHAREN”, for goods in class 5

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: Hungarian trade mark registration of the word mark “ALPHA D3” for goods in class 5; Lithuanian trade mark registration of the word mark “ALPHA D3” for goods in class 5; Latvian trade mark registration of the word mark “ALPHA D3” for goods in class 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The Board of Appeal failed to take account of the fact that the other party to the proceedings before it had failed to adduce evidence of similarity between the respective goods; Infringement of Article 75 of Council Regulation 207/2009 and the right to be heard as the Board of Appeal wrongly based material parts of its decision on evidence on which the applicant was not provided with an opportunity to present its comments; Infringement of Article 76 of Council Regulation 207/2009 as the Board of Appeal, in proceedings relating to relative grounds for refusal of registration, failed to restrict itself to an examination of the facts, evidence and arguments provided by the parties and the relief sought; Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred in relation to the identification of the relevant public and overall in its assessment of the likelihood of confusion.
EN Official Journal of the European Union C 180/54

Action brought on 19 May 2009 — Matkompaniet v OHIM — DF World of Spices (KATOZ)

(Case T-195/09)

2009/C 180/100

Language in which the application was lodged: English

Parties

Applicants: Matkompaniet AB (Borås, Sweden) (represented by: J. Gulliksson and J. Olsson, lawyers)

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

Other party to the proceedings before the Board of Appeal: DF World of Spices GmbH (Dissen, 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 11 March 2009 in case R 577/2008-2; and

— Order the defendant to pay the costs incurred both in the proceedings before the Court of First Instance and before OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark “KATOZ”, for goods in classes 29, 30 and 31

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: German trade mark registration of the figurative mark “KATTUS” for goods in classes 29, 30, 31 and 33

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and partially rejected the application for the Community trade mark

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly concluded that there was a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 205/46

Action brought on 7 July 2009 — Mannatech v OHIM (BOUNCEBACK)

(Case T-263/09)

2009/C 205/84

Language of the case: English

Parties

Applicant(s): Mannatech, Inc. (Coppell, United States) (represented by R. Niebel and C. Steuer, lawyers)

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 26 March 2009 in case R 100/2009-1; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark “BOUNCEBACK” for goods in class 5

Decision of the examiner: Refused the applicant’s trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (2) of Council Regulation 207/2009 as the Board of Appeal erred in its application of the legal standards laid down in the said legal provisions.
EN Official Journal of the European Union C 193/29

Action brought on 22 June 2009 — Accenture Global Services v OHIM — Silver Creek Properties (acsensa)

(Case T-244/09)

2009/C 193/46

Language in which the application was lodged: English

Parties

Applicants: Accenture Global Services GmbH (Shaffhausen, Switzerland) (represented by: R. Niebel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Silver Creek Properties SA (Panama, Panama)

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 20 March 2009 in case R 802/2008-2;

— Annul the decision of the Trade Marks Department of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 March 2008 in opposition No B 1019274; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘acsensa’, for goods and services in classes 9, 35, 36, 38, 33, 41 and 42

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

Mark or sign cited: German trade mark registration for the word mark ‘ACCENTURE’ for goods and services in classes 9, 16, 35, 36, 37, 41 and 42; German trade mark registration of the figurative mark ‘accenture’ for goods and services in classes 9, 16, 35, 36, 37, 41 and 42; Community trade mark registration of the word mark ‘ACCENTURE’ for goods and services in classes 9, 16, 35, 36, 37, 41 and 42; Community trade mark registration of the figurative mark ‘accenture’ for goods and services in classes 9, 16, 35, 36, 37, 41 and 42

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 Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred in its finding that there is no likelihood of confusion between the trade marks concerned; Infringement of Articles 75 and 76 of Council Regulation 207/2009 as the Board of Appeal wrongly ignored statements of fact submitted by the applicant.
EN Official Journal of the European Union C 220/36

Action brought on 13 July 2009 — PVS v OHIM — MeDiTA Medizinischer Kurierdienst (medidata)

(Case T-270/09)

2009/C 220/77

Language in which the application was lodged: German

Parties

Applicant: PVS — Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH (Mühlheim an der Ruhr, Germany) (represented by: F. Lindenberg, 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: MeDiTA Medizinische Kurierdienst- u. Handelsg. mbH (Düsseldorf, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 14 May 2009 in Appeal R 1724/2007-4 and reject the opposition;

— Order the defendant to bear the costs of the action and of the appeal proceedings;

— Enter judgment against the defendant without an oral hearing in its absence, in so far as it does not enter a defence in the appropriate form and in accordance within the prescribed time-limit.

Pleas in law and main arguments

Applicant for a Community trade mark: PVS

Community trade mark concerned: the figurative mark ‘medidata’ in the colours blue, grey and white for services in Classes 35, 36, 41, 42 and 44 (Application No 4 495 842)

Proprietor of the mark or sign cited in the opposition proceedings: MeDiTA Medizinische Kurierdienst- u. Handelsg. mbH

Mark or sign cited in opposition: the German word mark ‘MeDiTA’ for services in Classes 35 and 39, whereas the opposition is directed against registration in Class 35

Decision of the Opposition Division: Grant 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 207/2009, (1) since there is no likelihood of confusion between the trade marks at issue

(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 220/33

Action brought on 2 July 2009 — AECOPS v Commission

(Case T-256/09)

2009/C 220/71

Language of the case: Portuguese

Parties

Applicant: Associação de Empresas de Construção, Obras Públicas e Serviços (Aecops) (Lisbon, Portugal) (represented by: J.L. da Cruz Vilaça and L. Pinto Monteiro, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Commission of the European Communities of 21 June 2005 in respect of File 89 0771 P1, reducing the aid granted by Decision C(89) 0570 of 22 March 1989 to PTE 48 504 201 and requiring reimbursement of the amount of PTE 53 310 198;

— Order the Commission to pay the costs.

Pleas in law and main arguments

Infringement of the right to a prior hearing: the applicant was not given the opportunity to comment before a definitive decision to reduce the financial assistance was adopted, which constitutes a breach of an essential procedural requirement the disregard of which renders such a decision void.

Infringement of the principal of legal certainty through limitation and excessive delay in adopting a decision.

Breach of the duty to state reasons: the contested decision fails to set out, even summarily, the reasons for reducing the assistance.