Case T-266/04: Action brought on 1 July 2004 by the Kingdom of Spain v the Commission of the European Communities
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: EU financing, European Commission, Netherlands, Spain, action for annulment (EU), agricultural guidance, aid to agriculture, fruit, livestock farming, vegetable, withdrawal from the market

C 217/36

EN

Official Journal of the European Union

28.8.2004

Action brought on 23 June 2004 by CESTAS (Centro di
Educazione Sanitaria e Technologie Appropriate Sanitarie)
against the Commission of the European Communities

(Case T-260/04)

(2004/C 217/64)

— infringement of the principles of the right to be heard and
of proper administration. In the latter respect, it is noted in
particular that the examination of the applicant's alleged
deficits was wholly carried out by an external body, Ernst &
Young, which was not entirely a third party as regards the
main parties, but a body paid by the Guinean Government
and, as such, cannot be regarded as impartial.

(Language of the case: Italian)

(1) OJ L 145 of 31.05.2001, p. 43.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 23 June 2004 by CESTAS (Centro
di Educazione Sanitaria e Technologie Appropriate) (Centre for
Health Education and Appropriate Health Technologies), repre-
sented by Nicoletta Amadei and Charles Turk, lawyers.

The applicants claim that the Court should:

— annul the contested decision in its entirety;

Action brought on 1 July 2004 by the Kingdom of Spain v
the Commission of the European Communities

(Case T-266/04)

(2004/C 217/65)

— order the Commission to pay the costs.

(Language of the case: Spain)

Pleas in law and main arguments:

This action seeks the annulment of the decision of the Commis-
sion (Republic of Guinea delegation) of 21 April 2004 under
which the applicant, an NGO operating in Guinea since 1987,
was ordered to pay the sum of 959 543 835 Guinean francs
(equivalent to EUR 397 126.02) as costs considered unjustified
in the carrying out of projects for which it is responsible.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance on 1 July
2004 by the Kingdom of Spain, with an address for service at
the Spanish Embassy, 4-6 Boulevard Emmanuel Servais, Luxem-
bourg, represented by Fernando Díez Moreno, lawyer, acting as
Agent.

In support of its claims, the applicant argues:

The applicant claims that the Court should:

— infringement of

requirements

for
essential procedural
failure adequately to state reasons, contradictory reasons
and lack of legal basis. It is claimed that the contested debit
note refers only to the agreement ‘Amélioration des condi-
tions de vie à l'intérieur du pays (“Improvement of living
conditions within the country”) – 7 ACP GUI 019-4-AT
CESTAS’, when no agreement with that name exists, which
is why it is not clear to which agreement or agreements set
up between the applicant and the Guinean government the
contested decision refers. On the other hand, CESTAS notes
the absence of any legal basis whatsoever on which the
contested decision might rest. Finally, the debit note gives
no explanation of the accounting standards by which the
Commission determined the sum in dispute;

— Annul

the Commission decision of 29 April 2004 as
in respect of Spain, the exclusion from financial
regards,
compensation for withdrawal of
fruit and vegetables
(EUR 5 253 604.00); and the exclusion in respect of the
arable crops sector and cattle premiums, with the exception
of the sum relating to the 2000/2001 marketing year in La
Rioja, in the arable crops sector (EUR 1 659 053.00), and

— Order the Commission to pay the costs.

Pleas in law and main arguments

— it would also seem possible for the contested decision to be
annulled inasmuch as the order for the applicant to pay the
sum in question was made by the Commission, which is a
third party to the contracts signed in the various projects in
Guinea;

— infringement of Regulation (EC) No 1049/2001 regarding
public access to European Parliament, Council and Commis-
sion documents (1),
insofar as no action was taken in
respect of the applicant's request to obtain a copy of the
Ernst & Young report on which the contested decision is
based;

— infringement of the defendant's rights of defence;

The contested decision,
in so far as it affects the applicant,
involves four exclusions: (a) financial compensation for with-
drawals of fruit and vegetables; (b) aid for the processing of
lemons; (c) supplies of foodstuffs deriving from intervention
stocks, intended for distribution to persons most in need; and
(d) arable crops and cattle premiums. The present action relates
only to the exclusion from financial compensation relating to
withdrawals of fruit and vegetables (EUR 5 253 601, because
of allegedly defective controls in Murcia and Valencia), and to
the exclusion applied in relation to arable crops and cattle
premiums, with the exception of the sum corresponding to the
marketing year 2000/2001 in La Rioja in respect of arable
crops, as a result of which the sum of which the exclusion is
considered inappropriate in that sector is EUR 1 659 053.

28.8.2004

EN

Official Journal of the European Union

C 217/37

In support of its claims, Spain relies on the following legal
grounds:

Action brought on 28 June 2004 by Spa Monopole,
Compagnie fermière de Spa against the Office for Harmo-
nisation in the Internal Market (Trade Marks and Designs)
(OHIM)

— Financial compensation for withdrawals of fruit and vegeta-

bles

Under this heading, Spain states that, although the Spanish
authorities, as a result of a misinterpretation, did not
inspect 100 % percent of the products withdrawn, they
adopted the measures needed to adjust
the procedure
immediately after being advised of the error by the Euro-
pean Court of Auditors. In the applicant's view, it is not
logical to penalise Spain for a misinterpretation of the legis-
lation, which was rectified as soon as notice was given, in
view of the fact, first, that the Spanish authorities were dili-
gent in rectifying the problem detected by the Court of
Auditors and, second, on-the-spot controls were carried out
on a large percentage of products, in addition to the regu-
lation checks.

(Case T-268/04)

(2004/C 217/66)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 28
June 2004 by Spa Monopole, Compagnie fermière de Spa, Spa
(Belgium), represented by Emmanuel Cornu, Eric De Gryse and
Donatienne Moreau, lawyers.

Cottee Dairy Products Pty Limited, was also a party to the
proceedings before the First Board of Appeal.

— Arable crops and cattle premiums

The applicant claims that the Court should:

Under this heading, Spain states that, pursuant to Article
7(4) of Regulation (EC) No 1258/99, in conjunction with
Article 5(2) of Regulation (EEC) 729/70, all Basque Country
expenditure relating to the 1998/1999 marketing year and
the 1999/2000 marketing year should have been excluded
from the financial correction,
the payments in relation
thereto having been made prior to 31 January 1999 and 31
January 2000 respectively. The same applies to La Rioja.

Secondly,
cattle premiums,
Article 8 of Regulation (EEC) No 1663/95 was fulfilled.

it is not readily apparent that, with regard to
the requirement of notification under

the payments in
According to the Kingdom of Spain,
respect of cattle premiums for the years 1998,1999 and
2000 had already been audited and dealt with under the
2000/2011 investigation. As regards the 1998,1999 and
2000 applications for the Basque Country, and the 1998
and 2000 applications for la Rioja, the Commission applied
a financial correction without taking account of the fact
that, when carrying out the abovementioned investigation,
its staff had concluded that no financial correction was
the abovementioned applications.
necessary as
Consequently, the aim now pursued by the 2000/2011
investigation is to reopen a case which had already been
closed, with a different team from the EAGGF dealing with
the same applications for 1998 to 2000, which have
already been analysed, and even dealing with the same
aspect of the application of penalties, and reaching different
conclusions regarding the scope of
the exclusion from
financing.

regards

— annul the contested decision;

— order the OHIM to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Cottee Dairy Products Pty Limited

Community trade mark
sought:

Word mark 'SPA'
Class 1 (Application No 911388)

for goods in

Mark or sign cited in
opposition.

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

The figurative and word marks
registered in Benelux for
'SPA'
goods
the
company and trade names of the
opponent.

in Class 32 and

S.A. Spa Monopole, Compagnie
fermière de Spa

Decision of the Opposi-
tion Division:

Rejection of
registration

the application for

Decision of
of Appeal:

the Board

Annulment of the decision of the
Opposition Division

Pleas in law:

Breach of Article 8(5) of Regu-
lation (EC) No 40/941.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11, 14.1.1994, p. 1)