Case T-65/04: Actionbrought on 13 February 2004 by Gela Sviluppo S.C.p.A.(in liquidation) against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: EU financing, European Commission, Italy, action for annulment (EU), aid system, regional aid

C 106/70

EN

Official Journal of the European Union

30.4.2004

— order the office for Harmonisation in the Internal Market to
pay the costs of the opposition and appeal proceedings and
of the present action.

The applicant claims that the Court should:

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition.

Decision of the Opposi-
tion Division:

The applicant

The figurative mark ‘O orsay’ for
goods in Classes 23, 24 and 25
(yarn, woven and knitted fabric;
bed and table covers; articles of
clothing; boots, shoes and slippers;
headgear)
Application
–
No 1 042 613

José Jiménez Arellano S.A.

Spanish

The
figurative mark ‘D'ORSAY’
inter alia, goods in Class 25

Portuguese
for,

and

— annul the Commission decision in the communication of
16 December 2003, ref. 116515 Regio E2/JHR/rs D(2003)
the
621494,
balance of
for Gela
Sviluppo;

refusing the application for payment of

the financing of

the global grant

— cancel the Commission decision reducing the financing of
Sicily 94-99

for Gela

Sviluppo,

global

the
grant
ERDF 98.05.26.001;

— annul the Commission decision writing off the sum of

EUR 2 348 580.42 from the balance sheet;

— annul the Commission decision in the debit note for the
sum of EUR 85 806.66, for repayment of the surplus paid;

the

Refusal of
application for
registration in respect of the goods
‘articles of clothing; boots, shoes
and slippers; headgear’. Rejection
of the remainder of the opposi-
tion.

— if Article 6.2 of the Guidelines for the financial closure of
operational assistance (1994—1999) of
the Structural
Funds adopted by Decision (ESA) 1999/1316 of 9/9/1999
is considered part of a decision within the meaning of
Article 249 EC, annul that decision;

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the applicant's appeal

— The Office's

decision was
adopted in breach of Article
8(1) of Regulation (EC) No 40/
94.

— There can be no likelihood of
confusion in aural terms where
the opposed marks ‘O orsay’
and ‘D'ORSAY’ are compared.

— Both a likelihood of confusion
as a result of the typography
and a likelihood of association
can be ruled out.

— establish the non-contractual

liability of the Commission
with respect to failure to pay the final balance of the finan-
cing of the global grant for Gela Sviluppo, Sicily 94/99
ERDF 98.05.26.001, and order the Commission to compen-
sate for damage under Article 235 EC and Article 288 ECin
the sum of EUR 2 348 580.42, plus interest, or to an
extent considered fair;

— establish the breach of contract and the contractual liability
of the Commission in relation to the agreement signed on
13.09.1999 by Gela Sviluppo and the European Commis-
sion, recognised by the Region of Sicily, and amended on
31.05.2002, also recognised by the Region of Sicily, declare
that the sum of EUR 85 806.66 is not payable by the
Commission, order the Commission to perform its contrac-
tual obligations with regard to the payment of the sum of
EUR 2 262 777.76 or to compensate for damage in the
same amount, or to an extent considered fair;

Action brought on 13 February 2004 by Gela Sviluppo
S.C.p.A. (in liquidation) against the Commission of the
European Communities

— order the Commission to pay the costs.

(Case T-65/04)

(2004/C 106/141)

(Language of the case: Italian)

Pleas in law and main arguments:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 February 2004 by Gela Sviluppo
(in liquidation), represented by Patrizio Menchetti,
S.C.p.A.
lawyer.

The action relates to the Commission decision not to pay the
final balance of the financing of the global grant for Gela
Sviluppo, Sicily 94—99 ERDF 98.05.26.001, and to demand
the sum already paid of EUR 85 806 66.

30.4.2004

EN

Official Journal of the European Union

C 106/71

The applicant pleads:

— the Commission did not give an adequate statement of
reasons for the decisions reducing the financing, or for
Decision (ESA) 1999/1316 of 9.9.1999;

— the Commission was in breach of the principle of due
process because it refused to take action in relation to the
applicant's request to be heard, and of the principles of
legitimate expectations, proportionality and legal certainty
concerning that reduction, and finally of essential proce-
dural requirements in relation to the presentation of Deci-
sion (ESA) 1999/1316 of 9/9/1999;

— unlawfulness of

the method of calculation used by the

Commission for the closure of the final balance;

— the non-contractual liability of the Commission by reason
of infringement of the principle of legitimate expectations,
good administrative practice and the rules governing the
management of the financing of the structural funds;

— the contractual liability of the Commission in relation to
the agreement signed by the Commission, Gela Sviluppo
and the Region of Sicily, in breach of Articles 1453,1175
and 1375 of the Italian Civil Code.

in a series of agreements and concerted practices on the market
in carbon and graphite-based products
for electrical and
mechanical applications.

In support of its action, the applicant claims, first, that the
basic amount of the fine was incorrectly determined to its detri-
ment. In addition, the applicant pleads that the Commission
failed to have regard to the upper limit of 10 % for the fine laid
down in Article 15(2) of Regulation 17/62 (1)
through the
imposition of several separate fines of an amount exceeding
10 % of the group turnover. The applicant was also adversely
affected by the unjustified application of the 10 % upper limit
in favour of another undertaking which has a group relation-
ship with a third undertaking. According to the applicant, the
Commission also incorrectly assessed the cooperation of the
applicant and in this respect reduced the fine by too little, and
incorrectly took into consideration the actual deterrent effect in
fixing the amount of the fine. The applicant also claims that
the Commission wrongfully refused to take into account the
applicant's inability to pay when calculating the fine. Finally,
the applicant contests the assessment of the amount of interest
in respect of pending proceedings and default interest in the
contested decision.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
the Treaty (OJ, English Special Edition

cles [81] and [82] of
1959—1962, p. 87).

Action brought on 20 February 2004 by SGL Carbon AG
against the Commission of the European Communities

(Case T-68/04)

(2004/C 106/142)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by SGL Carbon
AG, Wiesbaden (Germany), represented by Martin Klusmann
and Andreas von Bonin, lawyers.

The applicant claims that the Court should:

— annul Commission Decision C(2003) 4457 final of 3

December 2003 in so far as it concerns the applicant;

— in the alternative, reduce appropriately the amount of the
fine imposed on the applicant in the contested decision;

— order the defendant to pay the costs.

Pleas in law and main arguments:

In the contested decision the Commission imposed on the
applicant a fine in the sum of EUR 23 640 000 for infringe-
ment of Article 81(1) EC and Article 53(1) EEA by taking part

Action brought on 20 February 2004 by Schunk GmbH
the
and Schunk Kohlenstofftechnik GmbH against

Commission of the European Communities

(Case T-69/04)

(2004/C 106/143)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by Schunk
GmbH, Thale
(Germany), and Schunk Kohlenstofftechnik
GmbH, Heuchelheim (Germany), represented by Rainer Bech-
told and Simon Hirsbrunner, lawyers.

The applicants claim that the Court should:

— annul

the contested decision of

the Commission of 3
December 2003 (Case COMP/E-2/38.359 — carbon and
graphite-based products for electrical and mechanical appli-
cations);