Case T-174/06: Action brought on 27 June 2006 — Inalca and Cremonini v Commission
Date: 2006-08-12
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, Jordan, beef, export monitoring, export refund

12.8.2006

EN

Official Journal of the European Union

C 190/29

— annul Memorandum No 04468 of 29 May 2006 of the
European Commission, Directorate-General
for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary, Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount requested. Ref. Programme PEP Sardegna 2000-
2006 (No CCI 1999 IT 16 1 PO 010);

— annul all related and prior measures and, consequently,
order the Commission of the European Communities to
pay the costs.

Applicant for the declaration of invalidity: Juan Gallardo Blanco.

Trade mark right of applicant for the declaration: Spanish figurative
(letter written in bold type, slightly
mark No 198 648 ‘H’
inclined, with a curve in the horizontal stroke and crossed by a
trail in the colours sky blue and deep red), for goods in Class
31 (‘livestock breeding of all kinds, except horses’).

Decision of the Cancellation Division: Declaration of nullity of the
Community trade mark in its entirety.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
on in Case T-345/04 Italian Republic v Commission. (1)

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Articles 40(2) and 74(2) of Regu-
lation (EC) No 40/94 on the Community trade mark.

(1) OJ C 262, 23.10.2004, p. 55.

Action brought on 27 June 2006 — Inalca and Cremonini
v Commission

Action brought on 23 June 2006 — Expasa v OHIM —
Juan Gallardo Blanco (figurative mark ‘H’)

(Case T-172/06)

(2006/C 190/53)

Language in which the application was lodged: Spanish

Parties

(Case T-174/06)

(2006/C 190/54)

Language of the case: Italian

Parties

Applicant: Expasa, Agricultura y Ganadería, S.A. (Madrid, Spain)
(represented by: J.C. Valle Valiente)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Juan Gallardo Blanco

Form of order sought

— Grant the application;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Figurative mark ‘H’ (letter written in
bold type and with a curve in the horizontal stroke) (appli-
cation for registration No 1 255 751, for goods in Class 31).

Proprietor of the Community trade mark: The applicant.

Applicants: Inalca and Cremonini (Modena, Italy) (represented
by: Francesco Sciaudone, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare that the Commission is liable for non-contractual

damages;

— declare that the applicants have suffered damage, assessed

at EUR 2 861 000;

— order the Commission to make good such damage together
with compensatory interest and interest on any arrears;

— order the defendant to pay the costs.

Pleas in law and main arguments

The present action seeks compensation for
loss allegedly
suffered by the applicant companies as a result of the adoption
of the letter of 6 July 1998 in which UCLAF communicated to
the Italian authorities the findings — which the applicants
consider wholly inaccurate — of its investigation into alleged
irregularities in the export, with refunds, of beef and veal to
Jordan and made allegations which also had criminal-law impli-
cations against both companies and their directors.

C 190/30

EN

Official Journal of the European Union

12.8.2006

In support of their claims, the applicants argue:

Form of order sought by the applicant

— infringement of the second and fourth subparagraphs of
Article 9(2) of Regulation No 729/70 in that, firstly, the
inspection carried out by UCLAF in Jordan is open to chal-
lenge since it exceeded the limits of its supervisory powers,
which are confined to the territory of the Member States,
and, secondly, UCLAF breached the obligation to prepare
and conduct inspections and supervision with the prior
agreement of the Member States and in the presence of the
representatives of all the national authorities concerned.

— Infringement of the second subparagraph of Article 9(2) of
Regulation No 2988/95 and of Article 4 of Regulation No
2185/96 in that UCLAF breached the obligation to prepare
on-the-spot checks and inspections in close collaboration
with the Member States and to inform the competent
national authorities before carrying out such checks.

— Infringement of Article 18 of Regulation No 3665/87 in
that UCLAF disregarded the probative value recognised and
conferred by that regulation on a series of expressly listed
documents and arbitrarily gave preference to a series of
other documents, undermining the principle of
legal
certainty and the transparency of checks.

The applicants also plead infringement of the principles of
good administration, diligence and proportionality and breach
of professional secrecy.

Lastly, the applicants state that, even if UCLAF's conduct may
not be open to censure, UCLAF is none the less liable for
causing the applicants loss. The latter could not reasonably
foresee, and therefore prevent,
the damage that would be
caused to them by an investigation which, they assert, proved
to be wholly erroneous.

Action brought on 30 June 2006 — Sviluppo Italia Basili-
cata v Commission

(Case T-176/06)

(2006/C 190/55)

Language of the case: Italian

Parties

Applicant: Sviluppo Italia Basilicata S.p.A. (Potenza, Italy) (repre-
sented by: Francesco Sciaudone, lawyer)

Defendant: Commission of the European Communities

— that

the Court of First

Instance should annul Decision

C(2006) of the European Commission of 20 April 2006

— that the Court should order the Commission to pay the

costs

Pleas in law and main arguments

in

the

financial

assistance

The decision challenged in this action has brought about a
considerable
of
correction
EUR 5 600 000 granted by the European Regional Develop-
ment Fund (ERDF) to the overall subsidy BIC Basilicata in order
to put into action measures to encourage small and medium-
sized undertakings operating in the Regione Basilicata, in the
sphere of the Community framework of support for the Objec-
tive 1 regions in Italy. In particular, measure 2 of the overall
subsidy provided for the setting up of a venture capital fund
for the distribution of financial assistance in the shape of hold-
ings of share capital, shareholders' loans and convertible deben-
ture stock in favour of undertakings situated in Basilicata or
intending to set up in that region.

In support of its claims, the applicant alleges:

— that the contested decision is completely wanting any legal
and factual grounds, in so far as the defendant considers, in
point of fact, that there has in the circumstances been no
actual fall in the assistance provided by the Fund, in that
less than 3 % of the ERDF's funds has been used to take up
shares in undertakings (requirement of usefulness). On this
head, the applicant maintains that that condition was not
provided for either by the rules applicable to the circum-
stances of the case, contained in the decision awarding the
aid, or by the general rules on structural funds. As a result,
the Commission could not lawfully conclude that there
existed irregularities within the meaning of Article 24 of
Regulation No 4253/88, relying on the requirement of
usefulness

— contravention of Decision 97/322/EC, for want of taking
into consideration and misinterpretation of paragraph C of
data-sheet 19. Here, the applicant considers that the defen-
dant has failed to take into account, in the contested deci-
sion, on the one hand, the distinction between ‘commit-
ment’ and ‘expenditure’ and, on the other, the provisions in
the data-sheet relating to the duration of the Fund, and also
the provisions laid down in the draft overall subsidy which
formed an integral part of that decision approving the aid,
and determined the actual duration of that particular assis-
tance at ten years

— failure to comply with the procedures laid down by the
Agreement, Article 25 of Regulation No 4253/88 or Article
26 of Regulation No 2082/93 in the finding of irregulari-
ties.

The applicant, at the end of its application, also alleges breach
of the principles of the protection of legitimate expectations, of
legal certainty, of proportionality and of the requirement to
state reasons.