Case T -57/06: Action brought on  17 February 2006  — Marly v OHIM
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 96/22

EN

Official Journal of the European Union

22.4.2006

In a letter of 30 October 2001 the Commission notified France
of its decision to initiate proceedings under Article 88(2) of the
EC Treaty relating to the exemption from excise rights on
for alumina production in the
mineral oils used as fuel
Gardanne region (2). On 7 December 2005, in consequence of
this procedure,
the Commission adopted the disputed deci-
sion (3) finding that exemptions from excise duty on mineral
for alumina production in the Gardanne
oils used as fuel
implemented by
the Shannon region and Sardinia,
region,
France,
Ireland and Italy respectively, constituted State aid
within the meaning of Article 87(1) EC that is in part incompa-
tible with the common market, and thus ordered the Member
States concerned to recover all such aid.

expectations,
period.

legal certainty and observance of a reasonable

(1) Council Directive of 19 October 1992 on the harmonisation of the

structures of excise duties on mineral oils

(2) Published in OJ 2002 C 30
(3) Decision C (2005) 4436 final, State aid Nos C 78-79-80/2001
(4) Decision of the Court of 24 July 2004, Altmark Trans, C-280/00,

ECR p. I-7747

France seeks by this action to have that decision annulled in
part in so far as it affects the exemption granted by France to
the Gardanne region.

In support of its action it relies on several pleas, the first
deriving from infringement of the concept of State aid within
the meaning of Article 87(1) EC. It submits that the Commis-
sion committed an error of law in holding that State aid existed
even though not all the conditions required to establish the
existence of aid, as laid down in the Altmark case (4), had been
competition be
fulfilled, particularly
restricted or that
the internal market be
distorted. It maintains that the Commission cannot, on the one
hand, propose that the Council adopt a decision on the founda-
tion of Directive 92/81/EEC authorising an exemption of excise
duty and object not to that exemption's being extended and, on
the other hand, find that that exemption constitutes State aid
incompatible with the common market.

the function of

condition that

the

The second plea raised by the applicant alleges a failure to give
reasons in that the decision contested contains a contradiction
in the Commission's reasoning relating to the finding of a
restriction on competition.

The applicant's third plea, submitted in the alternative, is that
the demand for recovery set out in Article 5 of the contested
decision breaches the principles of protection of
legitimate
expectations,
legal certainty and observance of a reasonable
period. It claims that the beneficiaries of the exemption are
entitled to rely on the principles of legal certainty and protec-
tion of legitimate expectations until the decision in dispute is
adopted, rather than until the date of publication of the deci-
the
sion to initiate
investigation proceedings, as
the
Commission maintains. The applicant also asserts that
Commission's failure to act for a period of four years between
the decision to initiate proceedings and the final decision
constitutes a breach of the principles of protection of legitimate

formal

Action brought on 17 February 2006 — Marly v OHIM

(Case T -57/06)

(2006/C 96/39)

Language in which the application was lodged: French

Parties

Applicant: Marly SA (Brussels, Belgium)
Mouffe, lawyer)

(represented by: B.

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

Other party to the proceedings before the Board of Appeal of
OHIM: Erdal Gesellschaft m.b.H. (Hallein, Austria)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Board of Appeal of OHIM in so
far as it upholds the opposition by the proprietor of the
word mark ‘TOFIX’;

— order the defendant to pay the costs, including expenses
necessarily incurred during proceedings before the Board of
Appeal, incurred by the party initiating the proceedings and
as calculated in the decision under appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark ‘TOPIX’ for
goods in Class 3 (application No 2 326 072)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Erdal Gesellschaft m.b.H.

22.4.2006

EN

Official Journal of the European Union

C 96/23

Mark or sign cited in opposition: the international word mark
‘TOPIX’ for goods in Classes 3 and 4

Pleas in law and main arguments

Decision of the Opposition Division: opposition upheld in respect
of all the disputed goods

Decision of the Board of Appeal: appeal dismissed

Pleas in law: infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94 in that there is a visual and conceptual
difference between the conflicting trade marks and a very great
difference between the goods to which the two trade marks
relate.

By this action, an association of companies operating in the
parcel service, transport and logistics sector seeks a declaration
by the Court that the Commission has failed to act in that the
latter refrained from initiating formal investigation proceedings
as provided for under Article 88 EC and from ordering interim
measures suspending the payment of the aid disputed in a
complaint by the applicant relating to restructuring aid granted
by the SNCF, a public company wholly owned by the French
State, to the goods transport company SCS SERNAM.

In support of its action for a declaration of failure to act, the
applicant relies on arguments that can be grouped together as
two pleas as regards their substance.

The first plea alleges an infringement of Article 88(2) of the EC
Treaty. The applicant submits that the fact that a period of
over six months elapsed following its first complaint, although
the Commission was familiar with the case, because it had
previous given decisions the infringement of which formed the
subject-matter of the complaint, constitutes an indication of the
serious difficulties encountered by the Commission in assessing
whether the aid in question was compatible with the common
market. The Commission is accordingly obliged, according to
the applicant, to initiate the formal
investigation proceeding
into the aid referred to in the complaint. The applicant further-
more claims that even if the French authorities failed to give
notice of the aid this cannot release the Commission from its
obligations of due diligence, and that it is obliged to employ its
powers of investigation as soon as it comes into possession of
information on State measures which could be contrary to the
principles of the common market, especially in the context of a
complaint directed at an infringement of its previous decision
fixing the conditions of compatibility of State aid with the
common market (1).

The second plea alleges an infringement of Article 11 of
Council Regulation (EC) No 659/1999 laying down detailed
rules for the application of Article 93 of the EC Treaty (now
Article 88) (2). The applicant claims that
the Commission
should have ordered interim measures suspending the payment
of the aid in that, according to the applicant, one condition of
objective urgency was met.

Action brought on 22 February 2006 — H.A.L.T.E. v
Commission

(Case T-58/06)

(2006/C 96/40)

Language of the case: French

Parties

Applicant: Honorable Association de Logisticiens et de Trans-
porteurs Européens — H.A.L.T.E.
(Neuilly-sur-Seine, France)
(represented by: J.-L. Lesquins, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— declare, in accordance with Article 232 of the EC Treaty,
that the Commission has failed in its obligation to act by
failing to define its position after having been called upon
to do so in accordance with Articles 87 and 88 of that
Treaty;

(1) The decision in question is the Commission Decision of 20 October
2004 relating to State aid put into effect by France in part in favour
of the Sernam company, C (2004) 3940 final

(2) OJ 2004 L, p. 1, most recently amended by Commission Regulation

No 794/2004 of 21 April 2004 (OJ 2004 L 182, p. 2)

— order the Commission to take all measures necessary to

comply with the judgment in its entirety;

— order the European Commission to pay the costs.