Case T-210/05: Action brought on 19 May 2005 by Nalocebar — Consultores e Serviços Lda. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-07-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beverage, citrus fruit, pastry-making, syrup, trade-mark law

C 182/42

EN

Official Journal of the European Union

23.7.2005

The applicant claims that the Court should:

— order the European Commission to pay to the applicant the
amount requested through the present application for the
damage suffered by the applicant as a result of the defen-
dant's failure to establish a system allowing the applicant to
import Methyl Bromide in January and February 2005, or
any other amount as further established by the applicant in
the course of these proceedings or by the Court ex aequo et
bono;

— in the alternative, rule on interlocutory judgment that the
European Commission is obliged to make reparation for the
loss suffered and order the parties to produce to the Court
within a reasonable period from the date of the judgment
the compensation agreed
figures as to the amount of
between the parties or, failing agreement, order the parties
to produce to the Court within the same period their
submissions with detailed figures in support;

— order the European Commission to pay to the applicant a

compensatory interest of 8 % per annum;

— order the Commission to pay an interest of 8 %, or any
other appropriate rate to be determined by the Court, calcu-
lated on the amount payable as from the date of the Court's
judgment until actual payment; and

— order the Commission to pay all costs and expenses in

these proceedings.

for the import of Methyl Bromide in the EU for each 12-month
period after 31 December 1999. The applicant submits further-
more a violation of the principles of sound administration and
the duty of care, requiring the Commission to act diligently,
impartially and in a timely fashion, as well as a violation of the
principles of legal certainty and legitimate expectations.

The applicant states that the damage suffered by it as a result
of the defendant's unlawful conduct consists of the lost profit
that the applicant would have made by importing and subse-
quently selling Methyl Bromide during these two months.

(1) OJ L 244, p. 1

Action brought on 19 May 2005 by Nalocebar — Consul-
tores e Serviços Lda. against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case T-210/05)

(2005/C 182/79)

Pleas in law and main arguments

(Language in which the application was lodged: English)

The applicant imports Methyl Bromide (MBr) in the EU. Methyl
Bromide is a controlled substance within the meaning of Regu-
lation (EC) No 2037/2000 of the European Parliament and
Council of 29 June 2000 on substances that deplete the ozone
layer (1). The applicant states that it can therefore only import
Methyl Bromide subject
to the presentation of an import
licence and the nominal allocation of a 12-month import quota
established by the defendant each year.

With the present action, the applicant claims compensation for
damages allegedly suffered as a direct consequence of the defen-
dant's unlawful failure to establish a system in accordance with
Articles 6 and 7 of Regulation No 2037/2000 allowing the
applicant to obtain import licences and import quotas for the
import of Methyl Bromide in the European Union in January
and February 2005.

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 19
May 2005 by Nalocebar — Consultores e Serviços Lda., estab-
lished in Funchal (Madeira), represented by G. Pasquarella and
R. M. Pasquarella, lawyers.

Limiñana y Botella, S. L. established in Monforte del Cid,
Alicante (Spain) was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

— quash the Decision of 18 March 2005 of the First Board of
Appeal of
the OHIM in case no. R 646/2004-1 by
upholding the lawfulness of the figurative mark filed on 12
July 2000 by the applicants and published in the Com-
munity Trademark Bulletin no. 103/01 on 03.12.01;

In support of its application, the applicant submits that the
defendant breached Articles 6 and 7 of Regulation 2037/2000,
which oblige the Commission to allocate licences and quotas

— award the statutory costs.

23.7.2005

EN

Official Journal of the European Union

C 182/43

Pleas in law and main arguments

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

in this

Big Ben Establishment Ltd. The
applicant
the
purchaser of
the application for
registration filed by Big Ben Estab-
lishment

case

is

Community trade mark
concerned:

for goods

Figurative mark ‘Limoncello di
in classes 30
Capri’
and
(pastries
drinks
other
belonging to class 32) and 33
(lemon based liqueurs)

etc.), 32 (syrups
lemon

based

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

Trade mark or
cited in opposition:

sign

Limiñana y Botella S.L.

word

Spanish
mark
LIMONCHELO for goods in class
33

Decision of the Opposi-
tion Division:

Refuses registration

The action concerns Commission decision C (2005) 591 final
which declared incompatible with the common market, as
State aid contrary to Article 87 EC, two Italian tax measures
granted to companies obtaining listing on regulated markets in
the period stated in the measures themselves. Those measures
reduce the rate of income tax for three years and exclude from
taxable income the costs of the listing borne by the company.

According to the Commission, the measures in question are
selective since they favour only those companies obtaining
listing in the period stated in the Italian rules, excluding those
already listed and those which might be listed in different
periods; the measures cannot therefore be regarded as compa-
tible since they do not come within any of the cases laid down
in Article 87(2) and (3) EC.

The Italian Government criticises the decision, first, from the
procedural point of view, since the Commission initiated the
procedure provided for in Article 88(2) EC without discussing
the measures with the Member State concerned beforehand.

Decision of
of Appeal:

Pleas in law:

the Board

Rejects the appeal

Violation of Article 8 (1)
Council Regulation No. 40/94 (1).

(b) of

Secondly, the applicant notes that the Commission did not
submit any comments regarding a previous measure adopted
by Italy in 1997, which was essentially the same.

(1) OJ L 011, 14/01/1994, p. 1

Thirdly, the applicant denies that the measures are selective. In
fact they are directed at a potentially indefinite number of reci-
pients. On the other hand, the measures are consistent with the
tax system as a whole, since they take account of the fact that,
in order to be listed, a newly quoted company must bear very
heavy charges which place it in a situation of reduced earning
capacity compared both with unquoted companies and those
which have been quoted for some time and have been able to
write off those costs. The limited time period is the result of
the
budgetary constraints and the experimental nature of
measure. That
selective a
measure which is inherently not so.

factor cannot,

in itself,

render

Fourthly, the applicant denies that the Commission has demon-
strated that the measure is likely to distort competition and
affect trade between Member States.

it

Fifthly and finally, the applicant argues that if the measure is
defined as aid,
is compatible with the common market
within the meaning of Article 87(3)(c). It is aid for investments
rather than for operations, and is consistent with the specific
economic objective of promoting the listing of companies on
the stock exchange which is beneficial for efficiency, transpar-
ency and the competitiveness of the system.

Action brought on 26 May 2005 by the Italian Republic
against the Commission of the European Communities

(Case T-211/05)

(2005/C 182/80)

(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 26 May 2005 by the Italian
Republic, represented by Paolo Gentili, Avvocato dello Stato.

The applicant claims that the Court should:

1. annul Commission decision C (2005) 591 final;

2. order the Commission to pay the costs.