Case T-50/06: Action brought on  17 February 2006  — Ireland v Commission
Date: 2006-02-17
Institutions: Court of First Instance
Subjects: European Commission, Ireland, State aid, action for annulment (EU), aluminium, control of State aid, excise duty, mineral oil, oxide, tax exemption

C 86/40

EN

Official Journal of the European Union

8.4.2006

Pleas in law and main arguments

The applicant applied for registration of the domain ‘galileo.eu’
as an eu. Top Level Domain. The Registry, EURid, refused that
registration on the ground that
the domain applied for is
reserved for the defendant.

In support of its application the applicant alleges infringement
of Article 9 of Regulation (EC) No 874/2004 (1). In addition, it
claims that its rights under the second paragraph of Article 2,
the first subparagraph of Article 10(1) and the third sub-
paragraph of Article 12(2) of Regulation No 874/2004 have
been infringed.

(1) Commission Regulation (EC) No 874/2004 of 28 April 2004 laying
down public policy rules concerning the implementation and func-
tions of the .eu Top Level Domain and the principles governing
registration.

order that the Office is jointly and severally liable with the
opponent for the applicant's/appellant's costs incurred in
connection with this appeal before the Court of First
Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘Astex Tech-
nology’ for goods in class 5 (pharmaceuticals)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Protec Health International Limited.

Mark or sign cited: Community word trade mark ‘Astex’ for
goods and services in classes 5 (insecticides for killing dust
mites) and 24 (textiles etc.)

Decision of the Opposition Division: Refuses registration

Decision of the Board of Appeal: Dismisses the appeal

Action brought on 17 February 2006 — Astex Therapeu-
tics v OHIM

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
(EC) No. 40/94.

(Case T-48/06)

(2006/C 86/78)

Language in which the application was lodged: English

Action brought on 17 February 2006 — Ireland v
Commission

Parties

Applicant: Astex Therareutics Limited (Cambridge, United
Kingdom) [represented by: M. Edenborough, Barrister, and R.
Harrison, Solicitor]

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Parties

(Case T-50/06)

(2006/C 86/79)

Language of the case: English

Other party to the proceedings before the Board of Appeal: Protec
Health International Limited (Cirencester, United Kingdom)

Applicant:
McGarry, Barrister]

Ireland [represented by: D. O'Hagan, agent, P.

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision of the Second Board of Appeal
of the OHIM, of 29 November 2005, in case R 651/2004
— 2 in its entirety or, alternatively, in part;

— order that the opponent pays to the applicant/appellant the
in connection
costs incurred by the applicant/appellant
with this appeal (if the opponent intervenes in this appeal)
and the appeal before the Board of Appeal and the opposi-
tion before the Opposition Division (in any event). Further,

Form of order sought

— Annul, in whole or in part, pursuant to Article 230 of the
Treaty, Commission Decision C[2005] 4436 Final of 7
December insofar as it relates to the exemption from excise
duty on mineral oils used as fuel for alumina production in
the Shannon region implemented by Ireland;

— order the Commission to pay the costs of these proceed-

ings.

8.4.2006

EN

Official Journal of the European Union

C 86/41

Pleas in law and main arguments

In 1970 a commitment was given to the promoters of Augh-
inish in respect of exemptions from customs duties on fuel oil
to be used in the production of alumina in the then proposed
plant at Shannon, Ireland. In 1983, the plant at Aughinish
into operation and the Irish authorities notified the
went
Commission that it intended to implement the commitments in
respect of the exemption from excise duty. The applicant states
that the exemption was furthermore authorized by virtue of
subsequent Council Decisions (1).
the Commission
raised the issue of State aid, which led to the institution of the
formal investigation and, finally, the adoption of the contested
decision.

In 2000,

In support of its application, the applicant submits that the
Commission is wrong in law in concluding that
the aid
concerned constitutes new aid, as opposed to existing aid.

According to the applicant, even if the aid constituted new aid
and was required to be notified upon its implementation in
1983, the Commission accepts that the aid was notified at that
the Commission to take any decision
time. The failure of
within the time periods devised by itself rendered the aid
concerned existing aid.
the Commission
treated the aid as existing aid at all material times, and the
unequivocal statement made by it in 1992 confirms this to be
the case.

In the alternative,

Furthermore, by virtue of Article 15 read in conjunction with
Article 1(b)(iv) of Regulation 659/1999 (2) since aid has been in
existence in excess of ten years and the limitation period speci-
fied therein has expired, the aid has become existing aid and
the procedures adopted by the Commission in relation to the
supervision thereof are flawed.

In relation to its first plea, the applicant also claims that the aid
was the subject of legally binding commitments entered into
on the part of the Irish authorities prior to accession in 1973.
According to the applicant the aid should have been found to
constitute existing aid on this heading alone.

The applicant pleads by way of additional plea that the decision
is in breach of the principle of legal certainty in circumstances
where it conflicts with the unanimous decision of the Council
taken on foot of a proposal submitted by the Commission. The
decision is also in direct conflict with the provision of Article
8(5) of Directive 92/81/EEC (3) on the approximation of the
rates of excise duty on mineral oils, which required the
Commission to submit a proposal in respect of distortions of
competition or incompatibility with the internal market for the
unanimous approval of the Council.

Furthermore, the Commission has allegedly infringed, at least
insofar as the beneficiary of the aid measure is concerned, the
principle of legitimate expectation in circumstances where the
Council has expressly authorised the derogation until 31
December 2006.

Finally,
it is submitted that the Commission has breached a
fundamental rule of law and has misused its powers by virtue
of its conduct, including its delay in taking the contested deci-
sion, having regard in particular to the fact that it was first
notified of
the
Commission disregarded the procedures contained in Directive
92/81/EEC, and made public statements regarding the compat-
ibility of the aid scheme in issue. By virtue of its conduct there-
fore, the Commission is estopped from ordering the recovery
of the aid in all the circumstances.

the aid in question in 1983.

In addition,

(1) 92/510/EEC: Council Decision of 19 October 1992 authorizing
Member States to continue to apply to certain mineral oils when
used for specific purposes, existing reduced rates of excise duty or
exemptions from excise duty,
in accordance with the procedure
provided for in Article 8 (4) of Directive 92/81/EEC (OJ L 316, p.
16) and other subsequent decisions.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83, p. 1)

(3) Council Directive 92/81/EEC of 19 October 1992 on the harmoni-
zation of the structures of excise duties on mineral oils (OJ L 316,
p. 12)

Action brought on 21 February 2006 — UPM-Kymmene v
Commission

(Case T-53/06)

(2006/C 86/80)

Language of the case: English

Parties

Applicant: UPM-Kymmene Oyj (Helsinki, Finland) [represented
by: B. Amory, E. Friedel, F. Bimont, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Partial annulment of the Decision insofar as it concluded
that Rosenlew Saint Frères Emballage participated in the
Valveplast meetings at the European level from 18 July
1994 until 31 January 1999 and that a single and contin-
uous infringement was formed on the basis of Rosenlew
Saint Frères Emballage's brief participation in the Valveplast
meetings (from 21 November 1997 until 26 November
1998) and its cooperation in the French meetings on open
mouth bags;