Case T-386/04: Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), common organisation of markets, intervention price, white sugar

C 284/28

EN

Official Journal of the European Union

20.11.2004

The applicant claims that the Court should:

— annul the decision of the Director General of the Legal
Service awarding him only one priority point under the
2003 promotion exercise, as is apparent from the Sysper 2
computerised system;

— annul the decision of the appointing authority to award
him a total of 20 points under the 2003 promotion exer-
cise, as is apparent from the Sysper 2 computerised system;
the list of merit of officials in grade A5 under the 2003
promotion exercise,
following Promotion Committees,
published in Administrative Notices No 69-2003 of 13
November 2003; the list of officials promoted to grade A4
under
the 2003 exercise, published in Administrative
Notices No 73-2003 of 27 November 2003; and the deci-
sion not to enter his name on those lists;

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant in the present case objects to the award of one
priority point under the 2003 evaluation exercise and also to
the appointing authority's refusal to promote him to grade A4
for the same exercise.

In support of his claims, he asserts first of all that Article 45 of
the Staff Regulations requires that merit be the determining
criterion for the award of priority points by the Directorate
General and for promotion. None the less, in the system called
in question in the present case, promotions are determined by
the award of priority points, on the proposal of each Directo-
rate General or Promotion Committee, without a comparative
examination of the merits of all officials eligible for promotion
in each grade. Consequently, Articles 6, 8 and 10 of
the
Commission's decision of 26 April 2002 on the general provi-
sions for the implementation of Article 45 of the Staff Regula-
tions (DGE) breach Article 45 of the Staff Regulations. Further-
more, by awarding to each Directorate General a uniform
quota of points per official, those rules prevent the appointing
authority from carrying out that comparative examination.

The applicant states in that regard that the contested decisions
are the result of the criteria established in the Legal Service for
the award of priority points, which lead to those points being
awarded in priority to officials with the most seniority in grade,
irrespective of their merits. Such an approach constitutes a
misuse of power, since it seeks to bring about the promotion
of the largest number and the preparation of promotions for
future years, i.e. to achieve an aim different from that envisaged
by the Staff Regulations, which is to reward merit.

The applicant further relies on two procedural defects, in so far
as the award of the priority points in issue was, he alleges,
decided in the absence of a proposal from the Directorate of
the Legal Service and in breach of the duty to state reasons.

The applicant also claims that there has been a breach of the
principle
reasonable career
prospects and that Articles 9, 12(3) and 13 of the DGE are
illegal.

that an official

should have

Action brought on 27 September 2004 by Eridania Sadam
S.p.A. and Others against the Commission of the European
Communities

(Case T-386/04)

(2004/C 284/55)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 24 September 2004 by Eridania
Sadam S.p.A. and Others, represented by the lawyers Gualtiero
Pittalis, Ivano Vigliotti, Gian Michele Roberti, Palo Ziotti and
Alessandra Franchi.

The applicants claim that the Court should:

— annul Article 1(d) of Commission Regulation (EC) No
1216/2004 of 30 June 2004 fixing the derived intervention
price for white sugar for the marketing year 2004/2005 for
all areas in Italy;

— as a secondary matter, declare, pursuant to Article 241 EC,
Article 2 of Council Regulation (EC) No 1260/2001
unlawful and inapplicable, inasmuch as it does not allow
the Commission to take into consideration the existence of
imports bearing zero duty and not subject to a quota for
the purposes of the fixing of the derived intervention price;

— order the Commission to pay the costs.

Pleas in law and main arguments

In this action the companies Eridania Sadam S.p.A.,
Italia
Zuccheri S.p.A., Zuccherificio del Molise S.p.A., Cooperativa
Produttori Bieticoli a.r.l.
(CO.PRO.B.) and Società Fondiaria
Romagnola S.p.A. (SFIR) challenge, pursuant to the fourth para-
graph of Article 230 EC, Commission Regulation (EC) No
1216/2004 of 30 June 2004 fixing the derived intervention
price for white sugar for the marketing year 2004/2005 for all
areas in Italy (OJEC L 232 of 1 July 2004, p. 25).

In support of their action the applicants raise the following
pleas in law.

First, the applicants maintain that the contested regulation is in
various ways incompatible with the basic rules laid down by
the Council
in Regulation (EC) No 1260/2001 of 19 June
2001. Most particularly, they complain that the regulation at
issue wrongly classes Italy as a ‘deficit area’ in respect of sugar
supplies, applying to it as a result the derived prices rules
(known as ‘regionalisation’).

20.11.2004

EN

Official Journal of the European Union

C 284/29

That classification, based as the applicants believe it to be, on
an incorrect economic analysis of the situation, gives rise to
damage to the applicants, inasmuch as the introduction of the
derived prices brings in a rise in the costs of production for the
sugar businesses operating within Italy. In particular, according
to the applicants, when computing the domestic supply in
Italy, the Commission failed to take account of the quantities of
white sugar imported subject to zero duty from the Balkan
States, imports that appreciably alter the conditions on which
the common organisation of
the market operates, causing
major imbalances in that market, which are increased as a
result of the applying of regionalisation to the Italian market.

The applicants therefore consider that Article 1(d) of
the
contested regulation is at the same time defective in its grounds
and potentially contrary, in its effects, to the Community prin-
ciples underlying the Common Agricultural Policy and to the
rules governing the common organisation of the market in
sugar, and also to the principles of proportionality and equal
treatment.

If it should happen, which the applicants strongly contest, that
the Court of First Instance should be unwilling to uphold the
criticisms directed against the regulation at issue in the prin-
cipal head of claim, the applicants request, as a secondary
claim, that the Court should as an interlocutory matter declare
and inapplicable Article 2 of Regulation No
unlawful
1260/2001,
in that it permits the Commission not to take
account of the effect on trends in the market of imports not
subject to duty or to a quota for the purposes of the fixing of
the derived intervention price.

Action brought on 28 September 2004 by Habib Kachakil
Amar against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-388/04)

(2004/C 284/56)

(Language in which the application was submitted: Spanish)

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 28
September 2004 by Habib Kachakil Amar, represented by Juan
Carlos Heder, lawyer.

The applicant claims that the Court should:

— Annul the contested decision of the OHIM First Board of

Appeal of 20 July 2004 in Case R 175/2004-1, and

— Order OHIM to pay the costs.

Pleas in law and main arguments:

Community trade mark
sought:

black

longitudinal

Figurative mark consisting of a
thick
line
ending in a triangle B application
No 3 235 157 for products
in
Class
footwear,
(Clothing,
headgear, in particular sports foot-
wear)

25

Examiner's decision:

as

Application rejected
falling
within the absolute grounds of
refusal provided for
in Article
7(1)(b) of Regulation No 40/94 on
the Community trade mark.

Decision of
of Appeal:

Pleas in law:

the Board

Application dismissed.

Misapplication of the abovemen-
tioned regulation and breach of
the rights of the defence and of
the principle of the protection of
legitimate expectations

Action brought on 24 September 2004 by Salvatore
Gagliardi against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (O.H.I.M.)

(Case T-392/04)

(2004/C 284/57)

(Language in which the application was submitted: Italian)

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 24
September 2004 by Salvatore Gagliardi, proprietor of the one-
man business of the same name, represented by Alex Schmitt,
Prof. Paolo Biavati and Sandro Corona, lawyers.

The company Norma Lebensmittelfilaialbetrieb GmbH & Co.
KG was also a party to the proceedings before the Board of
Appeal.

The applicant claims that the Court should:

— annul the decision inter partes of the Fourth Appeal Board

of the O.H.I.M. (proceedings R 0154/2002-4), and

— pursuant to Article 87 of the Rules of Procedure, order the
unsuccessful parties (the O.H.I.M. in so far as it incurs liabi-
lity, for example, for being at fault on account of its having
gone beyond the limits of the action brought before it) to
pay the costs.