Case T-236/06: Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission
Date: 2006-10-28
Institutions: Court of First Instance
Subjects: European Commission, access to information, action for annulment (EU), data protection, personal data, provision of documents, transmission network

C 261/24

EN

Official Journal of the European Union

28.10.2006

Applicant for the declaration of invalidity: Klosterbrauerei Weisse-
nohe GmbH & Co. KG.

jurisdiction to hear disputes arising from the Obnova Contract
lies with the competent court in Brussels.

Trade mark right of applicant for the declaration: The applicant for
the declaration of invalidity does not claim any trade mark
right. The declaration of invalidity is applied for in respect of
goods in Classes 32 (beer) and 33 (wine, spirits, liqueurs, spark-
ling wine, champagne).

The applicant further claims that the defendant infringed essen-
tial procedural rules. In particular, the applicant's right to a fair
hearing was not granted and the obligation to state reasons
under Article 253 EC was infringed. In this connection the
applicant criticises also the properly to establish the facts.

Decision of the Cancellation Division: Application for declaration
of invalidity partially granted, annulment of the registration of
the Community trade mark as regards the products claimed in
Classes 32 and 33.

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

Pleas in law: Infringement and misapplication of Article 7(1)(c)
of Regulation (EC) No 40/94 on the Community trade mark,
and contradiction in the grounds of the contested decision.

the applicant alleges that

Finally,
the defendant abused its
discretion by seeking repayment of the whole amount agreed
under the Obnova Contract, despite the fact that the terms of
the contract were properly fulfilled and the individual projects
properly implemented.

Action brought on 30 August 2006 — Austrian Relief
Program v Commission

(Case T-235/06)

(2006/C 261/45)

Language of the case: German

Action brought on 1 September 2006 — Landtag
Schleswig-Holstein v Commission

(Case T-236/06)

(2006/C 261/46)

Language of the case: German

Parties

Applicant: Landtag Schleswig-Holstein (Kiel, Germany)
sented by: S.R. Laskowski and J. Caspar)

(repre-

Parties

Defendant: Commission of the European Communities

Applicant: Austrian Relief Program– Verein für Not- und Katas-
trophenhilfe (Innsbruck, Austria) (represented by: C. Leyroutz,
lawyer)

Form of order sought

Defendant: Commission of the European Communities

Form of order sought

— annul Debit Note No 3 240 802 998 of 4 May 2006; and

— order the Commission to pay the costs.

— suspend the proceedings, in so far as the European Court of
Justice has not yet ruled on the dispute pending before it in
the same case.

In so far as the European Court of Justice declares that it
has no jurisdiction and refers the case back to the Court of
First Instance pursuant to Article 54 of the Statute of the
Court of Justice;

— annul the Commission decisions of 10 March 2006 and 23

June 2006; and

Pleas in law and main arguments

— order the Commission to pay the costs.

The applicant was selected by the Commission to carry out,
within framework of the Obnova programme financed by the
the
European Union, a project
contract signed on 2 April 1998 (‘the Obnova Contract’). By
letter of 4 May 2006 the Commission requested the applicant
to repay the whole amount agreed under that contract. By the
present action, the applicant challenges this decision.

in Serbia on the basis of

The applicant alleges, first of all, that the Commission was not
competent to adopt the contested decision, on the ground that

Pleas in law and main arguments

In the contested decision, the Commission refused the appli-
cant's request for access to document SEK (2005) 420 on the
basis of the second indent of Article 4(2) of the transparency
regulation (1). This document contains a legal analysis of the
Community's competence in the field of
the retention of
personal data by operators of electronic communications
networks.

28.10.2006

EN

Official Journal of the European Union

C 261/25

The applicant alleges, first, breach of Article 10 EC in conjunc-
tion with the second paragraph of Article 1 EU. The applicant
takes the view that the Commission is under an obligation to
grant it access to the document which it has applied for in the
framework of the reciprocal duties of genuine cooperation in
accordance with the principle of transparency, on the ground
that there is a strong public and parliamentary interest in full
disclosure of this document.

The applicant further alleges breach of Article 255 EC and
Article 2(1) of the transparency regulation. It submits in this
regard that the Commission was wrong to base its refusal to
grant access to the document applied for on the second indent
of Article 4(2) of the transparency regulation, since disclosure
of the document would not have prejudiced the Commission's
legal advice. The defendant therefore incorrectly exercised its
discretion.

(1) 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 2001 L 145,
p. 43).

Pleas in law: The contested decision is unlawful inasmuch as
registration was wrongly refused pursuant to Article 7(1)(c) of
Regulation (EC) No 40/94 (1) on the basis that the mark applied
for is descriptive and pursuant to Article 7(1)(b) thereof on the
ground that it lacks distinctiveness.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 5 September 2006 — Cabrera Sánchez
v OHIM — Industrias Cárnicas Valle (El charcutero arte-
sano)

(Case T-242/06)

(2006/C 261/48)

Language in which the application was lodged: Spanish

Action brought on 7 September 2006 — Reitz and von
Gadomski v OHIM (CMD-CLINIC)

Parties

(Case T-241/06)

(2006/C 261/47)

Applicant: Miguel Cabrera Sánchez (Móstoles, Spain)
(repre-
sented by: J. A. Calderón Chavero and T. Villate Consonni,
lawyers)

Language in which the application was lodged: German

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

Parties

Other party to the proceedings before the Board of Appeal of OHIM:
Industrias Cárnicas Valle SA

Applicants: J. Reitz (Aumühle, Germany) and B. von Gadomski
(Hamburg, Germany) (represented by: U. Poser, lawyer)

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

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of

16 June 2006 in Case R-790/2005-1;

Form of order sought

— annul Decision 2239/2005 in opposition No 637 647;

— annul the decision of the Fourth Board of Appeal of 6 July

— order the Opposition Division to refuse in full registration

2006 (R0372/2006-4);

of the mark concerned;

— order the defendant to pay the costs.

— order OHIM to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CMD-CLINIC’
in respect of goods and services in Classes 5, 10 and 44 (Appli-
cation No 3 661 337).

Applicant for a Community trade mark: Industrias Cárnicas Valle
SA

Decision of the Examiner: Partial refusal to register.

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

Community trade mark concerned: Figurative colour mark EL
CHARCUTERO ARTESANO (Application No 2 823 193) for
goods in Class 29