Case T-116/03: Action brought on 7 April 2003 by Oreste Montalto against the Council of the European Union
Date: 2003-06-07
Institutions: Court of First Instance
Subjects: European Commission, European Union Intellectual Property Office, action for annulment (EU), appointment of staff, president of an institution

C 135/36

EN

Official Journal of the European Union

7.6.2003

The other party in the proceedings before the Board of Appeal
was Grotto spa.

Action brought on 7 April 2003 by Oreste Montalto
against the Council of the European Union

The applicant claims that the Court should:

— annul the contested decision which forms the subject-
matter of these proceedings; in the alternative, declare
there is no likelihood of confusion between the signs in
question so far as concerns all the goods requested except
for jeans, in respect of which there is a likelihood of
confusion or, at least, so far as concerns all those goods
which the Court does not consider likely to be confused
and, accordingly annul the contested decision so far as
such goods are concerned;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark Word mark ‘GAS STATION’ —
application No 712647,
regis-
sought:
tration sought in respect of goods
in Class 25 (‘Clothing, footwear,
headgear’)

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Mark or sign cited in
opposition:

Grotto S.p.A.

Italian trade mark ‘BLUE JEANS
GAS’
registered in respect of
goods in Class 25 (‘trousers, jack-
ets, jeans, shirts, skirts, heavy jack-
ets, sports jerseys, sweaters, tail-
ored jackets,
socks,
stockings,
footwear, boots, slippers’)

Decision of the Oppo-
sition Division:

Registration refused

Decision of the Board of
Appeal:

Appeal dismissed

Pleas in law:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 inas-
much as the trade marks in ques-
tion are not
to be considered
similar for the purposes of that
provision

(Case T-116/03)

(2003/C 135/58)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 7 April 2003 by Oreste Montalto, resident
in Alicante (Spain), represented by Georges Vandersanden,
avocat.

The applicant claims that the Court should:

— annul the decision of the Council, taken by its President
on 23 May 2002, appointing an additional Chairman of
a Board of Appeal, also President of the Appeals Depart-
ment of the OHIM, and thereby rejecting the applicant’s
candidature for the same post;

— award the applicant compensation for the material and
loss suffered, provisionally assessed at

non-material
EUR 20 000;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an official of the Office for Harmonisation in
the Internal Market (OHIM). In response to a vacancy notice,
he submitted his candidature for the post of Chairman of a
Board of Appeal of
the OHIM. Another candidate was
appointed to that post by the contested decision and the
applicant’s candidature was accordingly rejected. In support of
his claims, the applicant makes two pleas in law. The first plea
alleges infringement of the selection procedure. In that respect,
the applicant argues that the selection procedure was entrusted
to a private company and that both the competent authorities
within the OHIM and the defendant had in reality abdicated
their power of supervision by simply ratifying the conclusions
to which that company came. He also argues that the contested
decision should have been taken by the President of the OHIM
and not by the defendant. The second plea alleges manifest
errors of assessment and an infringement of the principle of

7.6.2003

EN

Official Journal of the European Union

C 135/37

equality of treatment as regards the use of English during the
selection procedure, in addition to other alleged defects in the
same procedure. The applicant also argues that insufficient
reasons were stated for the contested decision.

Action brought on 14 April 2003 by AES Drax Power
Limited against the Commission of the European Com-
munities

(Case T-124/03)

(2003/C 135/59)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 April 2003 by AES Drax Power
Limited, Selby, United Kingdom, represented by K. P. E. Lasok
QC and Ms. E. Gibson-Bolton, Solicitor.

considerations are mistaken,
there would be no serious
social difficulties if British Energy became insolvent, and the
contested Decision is, therefore, in breach of paragraph 23 (c)
of the Guidelines. The applicant also claims that the aid in
question is not restricted to the amount needed to keep British
Energy in business, because if British Energy were placed into
administration, as provided for by English insolvency law, the
cost of keeping it in business might be smaller. For this reason
the applicant considers that the contested Decision is also
contrary to paragraph 23(e) of the Guidelines. The applicant
further claims that the contested Decision violated para-
graph 23 (a) of the Guidelines, by failing to take into account
that the contested aid takes the form of cash placed on deposit
by the government. According to the applicant these deposits
remove the market risk of dealing with British Energy and are
therefore not identical to loans or state guarantees of loans
provided for in paragraph 23 (a) of the Guidelines. Finally, the
applicant contends that the defendant exceeded the limits
placed upon the exercise of its discretion by the EC Treaty and
the general principles of EC law in failing to take account of
the impact of the contested aid on the competitors of British
Energy.

(1) OJ 1999 No C 288 p. 2.

The applicant claims that the Court should:

— Order any measures of enquiry necessary to resolve the

issues of fact in this case

Action brought on 14 April 2003 by Reckitt Benckiser
(España), S.L. against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

— Annul the contested decision of 27 November 2002
authorising State Aid NN101/02 to British Energy plc.

— order the defendant to pay the applicant’s costs

(Case T-126/03)

(2003/C 135/60)

Pleas in law and main arguments

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: English)

In September 2002 the United Kingdom Government awarded
a package of rescue aid to British Energy plc., one of the main
producers of electricity in the United Kingdom and a nuclear
stations operator. By the contested Decision the defendant
decided that this state aid was compatible with the EC Treaty.
The applicant, a competitor of British Energy, seeks the
annulment of that Decision, contending that the defendant
breached its own Guidelines on State Aid for Rescuing and
Restructuring firms in difficulty (1). The applicant disputes the
defendant’s findings that in the absence of the aid in question
British Energy would be insolvent and have to cease operating
and that if it did so there would be serious consequences both
for nuclear safety and for the security of power supply in
the United Kingdom. According to the applicant all these

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
14 April 2003 by Reckitt Benkiser (España), S.L., Barcelona,
Spain represented by Ms Monica Esteve Sanz, lawyer,

ALADIN Gesellschaft für innovative mikrobiologische Systeme
GmbH was also a party to the proceedings before the Board of
Appeal.