Case T-291/06: Action brought on 18 October 2006 — Operator ARP v Commission
Date: 2006-12-16
Institutions: Court of First Instance
Subjects: European Commission, Poland, State aid, action for failure to fulfil an obligation, aid for restructuring, control of State aid, iron and steel industry, redemption

C 310/22

EN

Official Journal of the European Union

16.12.2006

— annul Memorandum No 07768 of 23 August 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. POR Campania 2000-2006 (No CCI
1999 IT 161 PO 007)

— annul Memorandum No 08861 of 20 September 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. POR Programme Sardinia 2000-
2006 (No CCI 1999 IT 161 PO 010)

— annul all related and prior acts and, consequently, order the
the European Communities to pay the

Commission of
costs.

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)

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

Action brought on 18 October 2006 — Operator ARP v
Commission

(Case T-291/06)

(2006/C 310/43)

Language of the case: Polish

Parties

Claimant: ‘Operator ARP’ Sp. z o.o. (represented by: J. Szyma-
nowska, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare partially invalid the Commission decision of 5 July
2005 in Case No C 20/04 (ex. NN 25/04) concerning State
aid for the benefit of Huta Częstochowa S.A., that is to say,
set aside Article 3(2) of that decision in so far as it obligates
Poland to take all requisite steps to recover from Operator
Sp. z o.o. the State aid granted to Huta Częstochowa S.A.
in a manner inconsistent with the common market;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The claimant seeks a declaration of invalidity in regard to the
European Commission decision of 5 July 2005 in State aid

Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares
incompatible with the common market the aid which Poland
accorded to Huta Częstochowa S.A. over the period from 1997
to May 2002 in the form of operating aid and aid for employ-
ment restructuring. The decision was notified to the claimant
on 21 August 2006. In Article 3(2) of the contested decision
the Commission imposed an obligation on Poland to take all
requisite steps to recover the wrongfully granted aid from the
undertakings named in that provision, which include the clai-
mant. Pursuant to that decision, all the undertakings mentioned
in Article 3(2) are jointly and severally liable for the recovery
of that aid, which is to be effected without delay and in accord-
is
ance with the procedures under national
payable in respect of the entire period from the date of receipt
of the aid up to the date on which it is actually repaid,
in
accordance with the provisions contained in Chapter V of
Commission Regulation (EC) No 794/2004. (1)

Interest

law.

In its claim that the contested decision is invalid, the claimant
states that it is not itself a beneficiary of the aid granted to
Huta Częstochowa S.A. over the period from 1997 to 2002,
and therefore cannot be a debtor jointly and severally liable for
the return of the aid, with the result, according to the claimant,
that the obligation placed on Poland to take all requisite steps
to recover that aid from the claimant serves no purpose.

In support of its action, the claimant raises the following heads
of complaint:

— Infringement of the rights of defence through breach of
Article 88 EC by reason of defective compliance with the
obligation to enable interested parties to set out their views
in the framework of the formal
investigative procedure
relating to the aid in question. The claimant submits that,
as it did not take part in the formal investigative procedure
conducted by the Commission, it did not have an opportu-
nity to set out its views or submit legal argument in the
context of that procedure, which would, in its view, have
led the Commission to draft differently the operative part of
the decision with regard to the definition of the group of
aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from
that group);

— Breach of Article 253 EC, that is to say,

in that

the decision are terse and incoherent

lack of proper
reasoning for the decision. The claimant submits that, inas-
much as it is named as a beneficiary of the aid, the grounds
of
the
Commission, in those grounds, does not treat the claimant
as an individual capable of being recognised as a beneficiary
of the aid, but at the same time refers to it in the operative
part as an individual obligated to return the aid. The clai-
mant also points out that the contested decision fails to cast
light on the factual circumstances concerning the aid
granted to Huta Częstochowa in a manner, according to the
decision, at variance with the common market; in particu-
lar, the decision does not contain any analysis, within the
context of an extension of the group of beneficiaries, of the
issue of a possible transfer of benefits accruing from the aid
obtained in favour of individuals assuming the assets and
liabilities of Huta Częstochowa;

16.12.2006

EN

Official Journal of the European Union

C 310/23

— Misconstruction of Articles 87 EC and 88 EC and of
Article 14 of Council Regulation (EC) No 659/1999 (2) by
reason of the mention of the claimant as a beneficiary of
the aid. The claimant submits that, by designating it as an
aid beneficiary, the Commission exceeded the limits of its
discretion inasmuch as the claimant does not belong to the
group of individuals which in fact benefited from the aid;

— Infringement of the principles of legal certainty and propor-
tionality by reason of the designation of the claimant as an
individual obligated to return the aid declared incompatible
with the common market, notwithstanding the fact that the
claimant was not a beneficiary of that aid.

(1) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple-
menting Council Regulation (EC) No 659/1999 laying down
detailed rules for the application of Article 93 of the EC Treaty (OJ
2004 L 140, p. 1).

(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 1999 L 83, p. 1).

Action brought on 19 October 2006 — NBC Fourth
Realty v OHIM — Regalado Pareja and Pedrol (PK MAX)

(Case T-293/06)

(2006/C 310/44)

Language in which the application was lodged: English

Parties

Applicant: NBC Fourth Realty Corp. (Las Vegas, USA) (repre-
sented by: A. Woodgate, A. Smith, Solicitors)

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

Other parties to the proceedings before the Board of Appeal: Miguel
Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell
(Alicante, Spain)

Community trade mark concerned: The figurative Community
Trademark PK MAX, claiming the colour navy blue for goods
and services in classes 3, 25 and 28 in Case R 397/2005-1.

Proprietor of the mark or sign cited in the opposition proceedings:
The applicant.

Mark or sign cited: The national word marks T.K. MAXX for
goods and services in class 35, the Community word mark T.K.
MAX, for goods and services in classes 3, 14, 18, 25, 28 and
35, as well as earlier non-registered national word marks of the
same denomination, used in the course of trade in Ireland, the
United Kingdom and the Netherlands.

Decision of
entirety.

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Appeal upheld and case remitted
to the Opposition Division for the remaining grounds of oppo-
sition.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94.

The applicant claims that the Board of Appeal erred in law, by
concluding there was no likelihood of confusion between the
In particular,
earlier and the contested mark.
the applicant
submits
incorrectly interpreted the
the Board of Appeal
‘consumer’ of the protected services while it manifestly erred in
the assessment of the visual, phonetic and conceptual similari-
ties between the respective trade marks. Moreover, the Board of
Appeal allegedly failed to correctly assess the scope of protec-
tion enjoyed by the earlier mark, as a result of its reputation
and/or inherent distinctiveness. Finally, the applicant submits
the Board has incorrectly introduced additional requirements
into the provisions of Article 8(1)(b) of Council Regulation No
40/94.

Action brought on 20 October 2006 — Nordmilch v
OHIM (Vitality)

(Case T-294/06)

(2006/C 310/45)

Language of the case: German

Form of order sought

— Annulment of the contested decision of the First Board of

Appeal, of 5 July 2006, in Case R 397/2005-1;

— order the Office for Harmonisation in the Internal Market
to pay the costs of this application and also the costs of the
proceedings before the Board of Appeal.

Parties

Pleas in law and main arguments

Applicant: Nordmilch eG (Zeven, Germany) (represented by R.
Schneider, lawyer)

Applicant for the Community trade mark: Miguel Isaias Regalado
Pareja and Bibiana Pedrol, trading as Rosell.

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