Case T-181/02: Action brought on 13 June 2002 by Neue Erba Lautex GmbH Weberei und Veredlung against the Commission of the European Communities
Date: 2002-08-24
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), aid for restructuring, aid to undertakings

24.8.2002

EN

Official Journal of the European Communities

C 202/31

— order payment of default interest at the rate of 5,75 %
with effect from 26 January 1988,
the date of the
accident, on the capital amount payable under Article 73
of the Staff Regulations;

— make an order

for damages

in the amount of
EUR 138 358,88 as compensation for the material and
non-material damage which the contested decision caused
to the applicant, such amount being provisional, subject
to increasing it in respect of the material damage, and as
equitable compensation for the non-material damage;

— order the defendant to pay all the costs.

Pleas in law and main arguments

Following the injuries suffered by the applicant in relation to
giving birth in 1988, the defendant, first, took the view that
the cause of the injuries was not accidental and, secondly,
acknowledged that the applicant was suffering from total
permanent invalidity, rendering it impossible for her to work.

The applicant claims that a new fact has arisen, enabling her
to request afresh that she be accorded the benefit of Article 73
of the Staff Regulations by regarding those injuries as the result
of an accident. According to the applicant, the findings of the
Medical Committee in 1988 do not reflect her current medical
circumstances, since the sequelae have continued to wreak an
effect and worsened over the years. Furthermore, the com-
mittee did not examine the applicant’s situation with regard to
the medical accident. According to the applicant, since her
injuries were linked to the medical accident, they ought to be
regarded as accidental.

Accordingly, by deciding to reject the request, the defendant
infringed Article 73 of the Staff Regulations and the Rules on
Sickness Insurance for Officials of the European Communities
and, in particular, Articles 12, 14 and 22 thereof. Furthermore,
the applicant alleges breach of the duty to have regard to the
welfare of officials.

The applicant claims that the Court should:

— annul the ECB performance appraisal of the applicant for

the year 2001;

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

Pleas in law and main arguments

The applicant, an employee of
the defendant, seeks the
annulment of his performance appraisal for 2001. He con-
siders that appraisal to be an act adversely affecting him
because the defendant did not confine itself to appraising his
performance. Instead, the defendant based the appraisal on
factual allegations which the applicant contests and which will
impair his future career development.

the defendant

The applicant claims that, under the provisions on data
protection,
is prohibited from relying on
electronically collected data and that that is, in itself, a sufficient
ground for annulment of the appraisal based on that data.
Moreover, the appraisal must be annulled on the ground that
it is based on incorrect factual information.

Action brought on 13 June 2002 by Neue Erba Lautex
GmbH Weberei und Veredlung against the Commission
of the European Communities

(Case T-181/02)

(2002/C 202/52)

(Language of the Case: German)

Action brought on 12 June 2002 by Jan Pflugradt against
the European Central Bank

(Case T-179/02)

(2002/C 202/51)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 12 June 2002 by Jan Pflugradt, represented by N. Pflüger,
lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 13 June
2002 by Neue Erba Lautex GmbH Weberei und Veredlung,
Neugersdorf (Germany), represented by Professor U. Ehricke,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the Commission Decision (C(2002)944 fin) of
12 March 2002 concerning State aid by the Federal
Republic in favour of Neue Erba Lautex GmbH and Erba
Lautex GmbH in liquidation;

— Order the defendant to pay the costs.

C 202/32

EN

Official Journal of the European Communities

24.8.2002

Pleas and main arguments

In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a
group said to comprise Erba Lautex GmbH in liquidation
and Neue Erba Lautex GmbH aid amounting in total to
EUR 7 834 million.

The applicant submits that the Commission was incorrect in its
finding that the applicant and Erba Lautex GmbH constituted a
unit or group of undertakings and that therefore the ability to
approve rescue and restructuring aid could only be assessed in
favour of the group, that the Deggendorf doctrine was to be
applied and the aid was to be claimed back from both members
of the group. The Commission’s Decision is said to be based
on the erroneous finding that the applicant’s case did not
constitute a residual arrangement under the terms of the
exception provided for in footnote 10 of the Guidelines (1). By
not applying that exceptional provision the Commission
infringed the principle of equal treatment and provided no
objective reason for the unequal treatment.

The applicant maintains that the Commission’s finding that
the applicant and Erba Lautex GmbH were to be deemed to
is
constitute a group was erroneous since the applicant
controlled not by Erba Lautex GmbH but by the liquidator. In
consequence of
the erroneous assumptions made by the
Commission the contested decision was already unlawful and
liable to be set aside for breach of Article 87(3)(c) EC in
conjunction with the Guidelines.

Action brought on 10 June 2002 by Uni-Pharma — Kleon
Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki
kai Emboriki Eteria against Office for the Harmonization
in the Internal Market (trade marks and designs) (OHIM)

(Case T-182/02)

(2002/C 202/53)

(Language of the case: French)

An action against the Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika
Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria, whose
registered office is in Kato Kifissia, Attiki (Greece), represented
by Eleni Gioti-Manthou and Maria Bra.

The applicant claims that the Court should:

— find that there is no likelihood of confusion between the

marks in question;

— annul the contested decision of the Fourth Board of

Appeal of 27 February 2002;

— order the Office to pay the costs of all the proceedings,

including lawyers’ fees incurred by the applicant.

Pleas in law and main arguments

In the alternative the applicant maintains that the Commission
in the
wrongly classified the relevant measure as aid or,
alternative, assumed a level of aid intensity greater than was
the case. In addition, in finding that the decision of 1999 to
claim repayment of aid concerning Erba Lautex GmbH had
not been complied with, the Commission manifestly erred in
its findings of facts in that regard.

Applicant for the Com-
munity trade mark:

The applicant

The Community trade Word mark ‘Apotel’ in respect of
certain goods in Class 5 (anal-
mark concerned:
gesics and antipyretics) — appli-
cation No 613554

Furthermore, the applicant is claiming that the Commission
committed errors of assessment and infringed essential formal
requirements. It infringed the duty to provide a statement of
reasons and the Federal Government’s right to be heard.
Finally, the Commission misused its discretion in adopting the
contested decision and infringed the right to administration in
accordance with the rules.

(1) Community Guidelines on State aid for rescuing and restructuring

firms in difficulty (OJ 1999 C 288, p. 2).

Biofarma (previously Orsem)

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

sign

National and international word
Trade mark or
asserted by way of oppo- mark ‘Aportex’ in respect of cer-
tain goods in Class 5 (pharmaceu-
sition in the opposition
tical products for the prevention
proceedings:
and/or treatment of the meno-
pause)

Decision of the Oppo-
sition Division:

Dismissal of entire opposition

Decision of the Board of
Appeal:

Annulment of the decision of the
Opposition Division