Case T-28/05: Action brought on 17 January 2005 by Ekabe International SCA against the Office for Harmonisation in the Internal Market
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), animal product, margarine, trade-mark law

C 82/40

EN

Official Journal of the European Union

2.4.2005

Action brought on 14 January 2005 by Carmela Lo
Giudice against Commission of the European Commu-
nities

(Case T-27/05)

(2005/C 82/71)

(Language of the case: French)

The applicant also claims that the lack of any participation by
her in the establishment of the report infringes Article 43 of
the Staff Regulations, the General Provisions for implementing
that article, as well as the principles of sound administration,
non-discrimination and prohibition of arbitrary procedures. In
the same context, the applicant pleads abuse of power, failure
to state reasons, infringement of the principle of the protection
of legitimate expectations and of the rule ‘Patere legem quam
ipse fecisti’ (obey the rules which you yourself have made), as
well as breach of the duty to have regard to the welfare of offi-
cials.

Action brought on 17 January 2005 by Ekabe International
SCA against the Office for Harmonisation in the Internal
Market

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 14 January 2005 by Carmela Lo
Giudice, residing in Strombeek-Bever (Belgium), represented by
F. Frabetti and G. Bounéou, lawyers, with an address for service
in Luxembourg.

(Case T-28/05)

(2005/C 82/72)

The applicant claims that the Court should:

(Language in which the application was submitted: French)

1. annul the appraisal exercise for the year 2003 (the period

from 01.01.2003 to 31.12.2003);

2.

if not, annul the decision of 4 May 2004 which closed the
applicant's career development report (CDR) for the period
from 1 January 2003 to 31 December 2003;

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 17 January 2005 by Ekabe
International SCA, established in Luxembourg, represented by
Charles de Haas, lawyer.

Puleva SA was also a party to the proceedings before the
Fourth Board of Appeal.

3. decide on the costs, expenses and fees and order the
Commission of the European Communities to pay them.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant, a Commission official, was on sick leave from 1
December 2003 to 10 May 2004. During that period the
Commission established her career development report without
her participation in it.

In support of her action, the applicant first of all claims that
the creation, as part of the new system of establishing career
development reports, of computer files directly completed on
the screen and stored in the computer staff management
system, is equivalent to the creation of parallel files in breach
of Article 26 of the Staff Regulations.

— annul and alter the decision of the Fourth Board of Appeal
in so far as it confirmed the rejection of the application for
Community trade mark OMEGA 3 No 824 573 following
Opposition No B 148 132;

— order OHIM to pay all the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

CEMA. The mark was transferred
to Primalliance and subsequently
to Ekabe International.

Community trade mark
concerned:

Figurative mark ‘OMEGA 3’
for
goods in Class 29 (margarine) —
application No 824 573

2.4.2005

EN

Official Journal of the European Union

C 82/41

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

Puleva SA

3. order the Commission to pay the costs.

Mark or sign cited in
opposition:

The national word mark ‘PULEVA-
OMEGA 3’ in respect of goods in
Class 29 (Meat, fish, poultry and
game; preserved, dried and cooked
fruits and vegetables; eggs, milk
and milk products, etc)

Decision of the Opposi-
tion Division:

Rejection of the application

Pleas in law and main arguments

The contested decision is the same as that in Case T-24/05
Standard Commercial and Others v Commission (1). The pleas in
law and main arguments are similar to those relied on in that
case.

The applicant claims in particular that the defendant:

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Infringement of Article 8(1)(b) of
Council Regulation No 40/94

— found that it had participated, even as the lead undertaking,
in a cartel put into effect on a relevant market in which it
was not present;

— failed to identify that relevant market;

— addressed to it a statement of objections without indicating

consistent grounds in support;

— failed to have regard to the duty to state sufficient reasons
for measures, as regards proving that trade was, at least
indirectly or potentially, adversely affected;

Action brought on 20 January 2005 by Deltafina SpA
against the Commission of the European Communities

— wrongly assessed the duration and seriousness of the infrin-
gement, and the aggravating and mitigating circumstances;

(Case T-29/05)

(2005/C 82/73)

(Language of the case: Italian)

— wrongly assessed the applicant's role, and should therefore

reduce the fine imposed on it.

the
The applicant also pleads failure to take account of
maximum limits for fines and of the objective elements relating
to the economic and social context as relevant factors in setting
the fine.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 January 2005 by Deltafina SpA,
established in Orvieto (TR), represented by Roberto A. Jacchia,
Antonella Terranova, Irene Picciano and Fabio Ferraro, lawyers.

The applicant claims that the Court should:

Finally, the applicant pleads infringement of the principles of
equal treatment, non-retroactivity of penalties and protection of
legitimate expectations, as well as misuse of powers, since the
Commission departed from its past practice of imposing purely
nominal penalties on persons who encourage or abet or are
external competitors of cartels, contrary to its declared inten-
tion to depart from the same only for the future.

1. annul Commission Decision C (2004) 4030 final of 20

October 2004 (‘the contested decision’);

(1) Not yet published in the ECR.

2.

in the alternative, annul in part and vary the contested deci-
sion, and accordingly reduce the amount of
the fine
imposed on Deltafina;