ddrg/super_eurlex huggingface dataset:
Second plea in law: infringement of Article 15(3) TFEU in conjunction with Article 2(1) of Regulation (EC) No 1049/2001

The applicant also submits that the refusal of full access to the documents concerning the Code of Conduct Group (Business Taxation) set up by the Council in addition infringes its right of scrutiny over those documents, which is guaranteed by the aforementioned provisions.

The applicant claims, in that regard, that the exceptions to the transparency requirement to which Article 4(3) and (1)(a), fourth indent, of Regulation (EC) No 1049/2001 refers are not applicable in the present case.

Furthermore, there was a lack of consideration and a failure to state adequate reasons, as well as an overriding public interest in the disclosure of the documents.
1.

The applicant claims that the flat rate correction imposed by the Commission infringes Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), as well as the 1997 guidelines (Document VI/5330/97), regarding the conditions that must be satisfied in order to impose a correction of 25 % or of 10 %. That infringement results in the Commission exceeding the limits of its discretion and breach of the principles of proportionality and legal certainty. — First, the Spanish authorities are of the opinion that the various flat rate corrections infringe Article 31(2) of Council Regulation (EC) No 1290/2005, in relation to the implementation of the 1997 guidelines and the principle of proportionality, as the Commission lacks serious and reasonable grounds to conclude that it had to impose a financial correction of 25 %, in relation to the wooded pastures in the years 2009 to 2013, except for wooded pastures for five Autonomous Communities in 2009, with regard to which it is considered that Article 73a(2)(a) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18) is applicable. The Spanish authorities also dispute the application by the Commission of a flat rate correction of 10 % for the years 2009 to 2013 for the shrub pastures and for the wooded grazing pasture in 2009. — Secondly, the authorities are of the opinion that the contested Decision infringes Article 31 of Regulation (EC) No 1290/2005 in relation to the principles of proportionality and legal certainty, in so far as it does not take into account Article 73a(2)(a) of Regulation (EC) No 796/2004, in relation to Article 137 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003.
EN Official Journal of the European Union C 392/41

Action brought on 5 August 2016 — Gifi Diffusion v EUIPO — Crocs (Footwear)

(Case T-424/16)

(2016/C 392/54)

Language in which the application was lodged: English

Parties

Applicant: Gifi Diffusion (Villeneuve-sur-Lot, France) (represented by: C. de Chassey, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Crocs, Inc. (Longmont, Colorado, United States)

Details of the proceedings before EUIPO

Proprietor of the design at issue: Other party to the proceedings before the Board of Appeal

Design at issue: Community design ‘Footwear’ — Community design No 733 282-0001

Contested decision: Decision of the Third Board of Appeal of EUIPO of 25 April 2015 in Case R 37/2015-3

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— invalidate the Community design No 000733282-0001;

— order EUIPO to pay the costs of the Applicant.

Pleas in law

— Infringement of Article 6 of Regulation No 6/2002;
EN Official Journal of the European Union C 410/29

Action brought on 22 September 2016 — Wirecard v EUIPO (mycard2go)

(Case T-676/16)

(2016/C 410/40)

Language of the case: German

Parties

Applicant: Wirecard AG (Aschheim, Germany) (represented by: A. Bayer, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the procedure before EUIPO

Mark at issue: EU figurative mark containing the word element ‘mycard2go’ — Application No 14 303 457

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 21 July 2016 in Case R 280/2016-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision and refer the case back to the defendant for continuation of the registration procedure concerning EU trade mark No 014303457;

— order EUIPO to pay the costs, including those incurred in the appeal proceedings before EUIPO.

Plea in law
—

annul the decision of the Single Resolution Board, apparently of 15 April 2016, at least in so far as that decision concerns the applicant;
EN Official Journal of the European Union C 419/47

Action brought on 28 July 2016 — Acquafarm v Commission

(Case T-458/16)

(2016/C 419/63)

Language of the case: Spanish

Parties

Applicant: Acquafarm, SL (Huelva, Spain) (represented by: A. Pérez Moreno, lawyer)

Defendant: European Commission

Form of order sought

The applicant requests that the General Court award it compensation for the damage caused by the lack of coordination of administrative action relating to the aquaculture facility, located in Gibraleón (Huelva), which resulted in serious injury to the legitimate expectations placed in that entity, arising as a result of the grant of aid for the implementation of an aquaculture project, which, in parallel, the European Union makes unviable as a result of a ban on the export of the species for the breeding of which the facilities are being built.

Pleas in law and main arguments

The applicant in the present proceedings is a company dedicated to research, innovation and industrial development in the field of aquaculture; it was created in 2004 for the implementation of an aquaculture project for the breeding and marketing of the Cherax Cuadricarinatus shellfish (Australian freshwater lobster). That project was awarded the corresponding aid from the European Union in accordance with the provisions set out in Commission Regulation (EC) No 498/2007 of 26 March 2007 laying down detailed rules for the implementation of Council Regulation (EC) No 1198/2006 on the European Fisheries Fund (OJ 2007 L 120, p. 1).

In support of its action, the applicant relies on Article 340 of the Treaty on the Functioning of the European Union and, for consideration thereof, on Spanish law on administrative responsibility, as stated in Article 106 of the Constitution and Articles 139 and following of Ley 30/92, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (Law 30/92 of 26 November on the legal rules governing public authorities and the common administrative procedure).

In that regard, the applicant states that:

— The aid received had been allocated to works in the aquaculture industry, since neither the implementation of the project carried out with that aid or the investments made had ever met any obstacles.

— Once the project was in the final stages of implementation, the company received notification from Australia that it was not possible to import the relevant species to the European Union as a result of the provisions of Commission Regulation (EC) No 1251/2008 of 12 December 2008 implementing Council Directive 2006/88/EC as regards conditions and certification requirements for the placing on the market and the import into the Community of aquaculture animals and products thereof and laying down a list of vector species (OJ 2008 L 337, p. 41).
EN Official Journal of the European Union C 410/25

Appeal brought on 20 September 2016 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 21 July 2016 in Case F-100/15, De Nicola v EIB

(Case T-666/16 P)

(2016/C 410/35)

Language of the case: Italian

Parties

Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by G. Ferabecoli, lawyer)

Other party to the proceedings: European Investment Bank

Form of order sought by the appellant

The appellant claims that the Court should:

— uphold the present appeal and, reversing the judgment under appeal, annul points 1 and 2 of the operative part and paragraphs 33, 46 to 60, 85 to 94, 100 to 106 and 107 to 109 of the judgment itself;

— consequently, annul and/or disapply the decision taken on 8 December 2014 by the Appeals Committee, if necessary referring the matter back to that committee after laying down the criteria which must be complied in the adoption of the new decision; declare that bullying was committed by the EIB to the detriment of Mr De Nicola, and order the EIB to compensate Mr De Nicola for the damage suffered, as sought in the initiating application; or, in the alternative, refer the case to another appellate chamber of the General Court in order that it may, in a different formation, give a fresh decision on the annulled paragraphs, following the completion of the requested medical report.

Grounds of appeal and main arguments

The present appeal is brought against the judgment of the Civil Service Tribunal of 21 July 2016 dismissing the action, brought by the appellant, concerning annulment of the decision of the Appeals Committee of 8 December 2014 rejecting his complaint relating to his staff appraisal report for 2013, as well as the decision of the respondent not to promote him. The appellant also seeks a declaration confirming the psychological harm of which he claims to have been a victim and asks that the Bank be ordered to pay compensation for the material, non-material and physical harm which he has allegedly suffered.

In support of his claims, the appellant states that the request for a declaration confirming that bullying took place is based specifically on Article 41 of the Staff Regulations of the Bank and consequently there are no problems relating to content and/or subject matter such as to exempt the action from the jurisdiction of the EU Courts. In this respect, it is stressed that the duty of the EU Courts to rule on the request for a confirmatory declaration is confirmed in the case-law of the General Court.

The appellant claims furthermore that all the conditions laid down in the case-law to uphold the application for an award of damages are met.

The appellant also contests paragraphs 46 to 60 of the judgment under appeal, concerning the request for annulment of the decision of the Appeals Committee, in so far as that part of the judgment is based on the premiss that it had not been proved that the decision of the Appeals Committee was vitiated by a manifest error of assessment.
Official Journal of the European Union

Action brought on 7 October 2016 — Berliner Stadtwerke v EUIPO (berlinWärme)

(Case T-719/16)

(2016/C 441/38)

Language of the case: German

Parties

Applicant: Berliner Stadtwerke GmbH (Berlin, Germany) (represented by: O. Spieker and A. Schönfleisch, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘berlinWärme’ — Application for registration No 14 062 558

Contested decision: Decision of the First Board of Appeal of EUIPO of 19 July 2016 in Case R 618/2016-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs of the proceedings.

Pleas in law

— Infringement of Article 7(1)(c), in conjunction with Article 7(2), of Regulation No 207/2009;
—

declare the instruction of the president of the Commission of the European Union communicated electronically by letter dated 28 June 2016 to the Members of the College of Commissioners of the EU, and identified in a speech by President Juncker to the plenary session of the European Parliament in Brussels on 28 June 2016 (SPEECH/16/2356), forbidding any negotiations by the Commission, formal or informal, with the UK government before its notification of withdrawal from the EU under Article 50 TEU, on the one hand, and, the statement of the President of the Commission of the European Union that he had given the instruction above to the Members of the College of Commissioners of the EU by way of ‘Presidential order’, as he expressly stated in that speech to the plenary session of the European Parliament in Brussels on 28 June 2016 and as recorded on both the English and French language Commission Press Releases of that speech (SPEECH/16/2353), on the other hand, void pursuant to Article 264(1) TFEU; and
1.

First plea in law, alleging that the decision must be annulled because it is vitiated by a manifest error of assessment and as a result breaches the principles of proportionality and protection of legitimate expectations by refusing to review and/or waive certain commitments imposed by Commission Decision of 4 July 2005 in Case No COMP/M.3770 — Lufthansa/Swiss.
1.

First plea in law, alleging a manifest error of assessment of three of the four criteria for considering a guarantee to be State aid. It claims in this regard that the Commission was wrong to find that Valencia FC was in a difficult financial position, relying on piecemeal information and without taking into account the specific business model of football clubs, basing itself on the book value of the players rather than on their real market value, and without analysing a feasibility study which at all times was based on realistic assumptions. In the second place, the Commission was wrong to consider that the guarantee covered more than 80 % of the loan and, in the third place, the Commission erred when it evaluated the general interest rate of the loan in relation to the market price.
—

In consequence: — annul the decision of 18 December 2015, reference Ares(2015)5952489, insofar as it imposes on the applicant a reduction in his remuneration; — annul the decision of 12 July 2016, reference HR.E.2/CB/sa/Ares(2016), served on the same date, by which the Appointing Authority rejects that part of the applicant’s claim, which he ground on 17 March 2016 under reference R/170/16, relating to the decision to reduce his remuneration; — order the defendant to pay the sums wrongfully withheld, together with legal penalties and interest; — order the defendant to pay all the costs, in accordance with Article 87(1) of the Rules of Procedure of the Civil Service Tribunal.
EN Official Journal of the European Union C 462/38

Action brought on 21 October 2016 — Changmao Biochemical Engineering v Commission

(Case T-741/16)

(2016/C 462/49)

Language of the case: English

Parties

Applicant: Changmao Biochemical Engineering Co. Ltd (Changzhou, China) (represented by: R. Antonini, E. Monard and B. Maniatis, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 Imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People's Republic of China; and

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

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 by refusing to grant economy market treatment to the applicant, the European Commission violated Article 2(7)(b) and (c) of Regulation (EU) 2016/1036 (1) and the principle of legitimate expectations, and imposed an unreasonable burden of proof in violation of the principle of good administration.

2. Second plea in law, alleging that by relying on the Union producer’s prices and costs to determine the normal value, the European Commission infringed Article 2(7)(a) of Regulation (EU) 2016/1036.

3. Third plea in law, alleging that the European Commission violated Articles 2(10), 3(2)(a), 3(3) and 9(4) of Regulation (EU) 2016/1036 and the principle of good administration, in its rejection of the adjustments.

4. Fourth plea in law, alleging that by means of its finding that the dumped imports caused material injury to the Union industry, the European Commission violated Article 3(2) and 3(6) (and, in subsidiary order, Article 6(7)) of Regulation (EU) 2016/1036.

5. Fifth plea in law, alleging that by relying on unreliable data, the European Commission violated Articles 2(7)(a), 3(2), 3(3) and 3(5) of Regulation (EU) 2016/1036.

(1) Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, p. 21).
EN Official Journal of the European Union C 6/53

Action brought on 9 November 2016 — BSH Electrodomesticos España v EUIPO — DKSH International (Ufesa)

(Case T-785/16)

(2017/C 006/66)

Language in which the application was lodged: English

Parties

Applicant: BSH Electrodomesticos España, SA (Huarte-Pamplona, Spain) (represented by: M. de Justo Bailey, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: DKSH International Ltd. (Zurich, Switzerland)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU word mark ‘Ufesa’ — Application for registration No 10 857 29

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 13 July 2016 in Case R 1691/2015-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO and the intervener to pay the costs.

Plea in law
1.

First plea in law, alleging that the European Central Bank (ECB) committed an error in law in the interpretation of the provisions of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1; ‘Regulation No 575/2012’). Accordingly, the applicant in particular criticises ECB decision of 24 August 2016 for rejecting the request which it had made in order to obtain the authorisation to exclude the exposure of public sector entities to the calculation of the leverage ratio (‘the contested decision’): — as being contrary to the intention of the European legislature and to the objectives pursued by Regulation No 575/2013; — as rendering Article 429(14) of that regulation wholly ineffective; — as constituting an encroachment by the ECB on the powers of the European legislature.
EN Official Journal of the European Union C 14/45

Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell.)

(Case T-776/16)

(2017/C 014/54)

Language in which the application was lodged: German

Parties

Applicant: Isocell GmbH (Neumarkt am Wallersee, Germany) (represented by: C. Thiele, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: iCell AB (Älvdalen, Sweden)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark containing the word element ‘iCell.’ — Application No 12 877 676

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 15 September 2016 in Case R 2496/2015-1

Form of order sought

The applicant claims that the Court should:

— amend the contested decision by declaring that the opposition is upheld in its entirety and that EU trade mark application No 12877676 is refused;

— order EUIPO to pay the costs.

Plea in law
EN Official Journal of the European Union C 14/54

Action brought on 14 November 2016 — Jean Patou Worldwide v EUIPO — Emboga (HISPANITAS JOY IS A CHOICE)

(Case T-808/16)

(2017/C 014/64)

Language in which the application was lodged: English

Parties

Applicant: Jean Patou Worldwide Ltd (Watford, United Kingdom) (represented by: S. Baran, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Emboga, SA (Petrel, Spain)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark containing the word elements ‘HISPANITAS JOY IS A CHOICE’ — Application for registration No 12 789 971

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 23 June 2016 in Case R 235/2016-1

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO and the other party to the proceedings to pay the costs, including those incurred by the applicant before the Office.

Plea in law
EN Official Journal of the European Union C 22/52

Action brought on 24 November 2016 — Republic of Cyprus v EUIPO — POCF (Pallas Halloumi)

(Case T-825/16)

(2017/C 022/70)

Language in which the application was lodged: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz, QC and V. Marsland, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Pancyprian Organisation of Cattle Farmers (POCF) (Latsia, Cyprus)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark containing the word elements ‘Pallas Halloumi’ — Application for registration No 11 180 536

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 22 September 2016 in Case R 2065/2014-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO and the other party to the proceedings before the Board of Appeal to pay the costs.

Plea in law
EN Official Journal of the European Union C 22/57

Action brought on 2 December 2016 — Cyprus v EUIPO — POCF (COWBOYS HALLOUMI)

(Case T-847/16)

(2017/C 022/77)

Language in which the application was lodged: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz, QC, and V. Marsland, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Pancyprian Organisation of Cattle Farmers (POCF) (Latsia, Cyprus)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark in colours containing the word elements ‘COWBOYS HALLOUMI’ — Application for registration No 11 281 375

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 22 September 2016 in Case R 2781/2014-4

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order EUIPO to pay the costs.

Plea in law
2.

Second plea in law, raised in the alternative, alleging insufficient reasoning of the contested decision on the basis of the failure to inform the applicant of the selection criteria established by the selection board.
—

annul the decision of EUIPO of 4 March 2016 not to adopt a definitive decision regarding the applicant’s request of 19 January 2016 for a second renewal of her contract concluded under Art. 2(f) CEOS and to defer a definitive decision about the applicant’s request of 19 January 2016 for a second renewal of her contract concluded under Art. 2(f) CEOS to a ‘specific procedure’ in the future; and