Case T-132/05: Action brought on 16 March 2005 by Nicola Falcione against the Commission of the European Communities
Date: 2005-06-11
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, personnel administration

C 143/38

EN

Official Journal of the European Union

11.6.2005

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are proprietors of sites which, under
the
contested decision, have been included on the Community list
of sites of Community importance on the basis of the presence
of the habitat types and species deemed worthy of protection
under the Flora-Fauna-Habitat Directive.

The applicants submit:

— that their property rights freely to exploit their land as they
wish have been significantly restricted by the contested
decision, and

— that this intervention is unlawful as it infringes procedural
requirements and involves misuse of power since the
purported habitat types and animal species deemed worthy
of protection are not to be found at all or, in any case, not
to the required degree of representativity or population size
as required under the criteria in Annex III to the Flora-
Fauna-Habitat Directive.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ 1992 L 206, p.
7).

Action brought on 15 March 2005 by Borax Europe Ltd
against the Commission of the European Communities

(Case T-121/05)

(2005/C 143/72)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 15 March 2005 by Borax Europe
Ltd., established in Guildford (United Kingdom), represented by
D. Vandermeersch and K. Nordlander, lawyers.

The applicant claims that the Court should:

— annul the decision;

— order the Commission to bear the costs of the procedure.

recordings related to the preparation of the 30th adaptation to
technical progress of Council Directive 67/548/EEC of 27 June
1967 on the approximation of laws, regulations and adminis-
trative provisions relating to the classification, packaging and
labelling of dangerous substances (1). More in particular, the
applicant's requested access to the audio recordings or tran-
scripts of the meeting of the specialised experts in the field of
reproductive toxicity on the classification of boric acid and
borates.

In support of its application, the applicant submits that the
defendant made a manifest error of assessment and infringed
and 4(3) of Regulation 1049/2001 (2).
Articles 4(1)(b)
According to the applicant, the defendant erred in stating that
access to the documents would undermine the integrity of the
specialised experts consulted and would expose them to
external pressure. The applicant claims furthermore that the
defendant erred in applying the exception relating to the
protection of the Commission's decision making process and in
deciding that there was no overriding public interest in disclo-
sure.

The applicant finally invokes a violation of the principle of
proportionality in failing to grant partial access to the audio
recordings.

(1) OJ English special edition: Series I Chapter 1967 p. 234
(2) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, p. 43)

Action brought on 16 March 2005 by Nicola Falcione
against the Commission of the European Communities

(Case T-132/05)

(2005/C 143/73)

(Language of the case: French)

Pleas in law and main arguments

The applicant contests the decision of
the Commission to
refuse the applicant access to certain documents and tape

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 16 March 2005 by Nicola Falcione,
residing in Brussels, represented by Sébastien Orlandi, Xavier
Martin, Albert Coolen, Jean-Noël Louis and Etienne Marchal,
lawyers, with an address for service in Luxembourg.

11.6.2005

EN

Official Journal of the European Union

C 143/39

The applicant claims that the Court should:

— order the latter to pay all the costs incurred by the appli-

— annul the decision of 24 March 2004 fixing the definitive

recruitment grade at Grade A5/4;

cant.

— order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant was appointed an official at Grade A5/4 by deci-
sion of 24 March 2004. In his application he challenges his
definitive recruitment classification. In support of his applica-
tion, the applicant alleges infringement of Article 31 of the
Staff Regulations and a manifest error of assessment. The appli-
cant claims that the Commission ought also to have taken into
account his relevant work and university level experience
between 16 July 1974 and 28 February 1982. The Commission
omitted to take that experience into account because the appli-
cant did not obtain his university economics degree until 1
March 1982.

Action brought on 17 March 2005 by Gérard Meric
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-133/05)

(2005/C 143/74)

(Language in which the application was submitted: French)

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 17
March 2005 by Gérard Meric, residing in Paris (France), repre-
sented by Pascal Murzeau, lawyer.

ARBORA & AUSONIA, S.L. was also a party to the proceedings
before the First Board of Appeal.

The applicant claims that the Court should:

— alter the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 17 January 2005 and, accordingly;

— reject the opposition entered by the company ARBORA &
AUSONIA, S.L. to registration of the trade mark ‘PAM-
PIM'S BABY-PROP’;

Applicant
munity trade mark:

for

Com-

The applicant.

Community trade mark
concerned:

Word mark ‘PAM-PIM'S BABY-
PROP’ in respect of goods in Class
16 (Babies' napkin-pants of paper
and cellulose (disposable)).

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

Mark or sign cited in
opposition:

Decision of the Opposi-
tion Division:

ARBORA & AUSONIA, S.L.

and

figurative
National word
marks 'PAM-PAM'
in respect of
goods in Classes 5, 16 and 25
(any ready-made clothing, in par-
ticular
disposable napkin-pants,
sanitary napkin-pants,
footwear,
sanitary towels … — Spanish
mark Nos 855 391, 1 146 300
and 1 153 492).

The opposition is allowed on the
figurative
basis of
the national
mark 'PAM-PAM'
in respect of
in Class 16 (pants and
goods
napkin-pants of paper and cellu-
lose
mark
No 1 146 300).

Spanish

—

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the applicant's appeal

For the average Spanish consumer,
there is no likelihood of confusion
within the meaning of Article
of Council Regulation
8(1)(b)
No 40/94 between the conflicting
marks because there is no simi-
larity either between the mark
applied for and the earlier marks,
or between the goods designated
by the mark applied for and the
earlier marks.