Case T-324/06: Action brought on 23 November 2006 — Município de Gondomar v Commission
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: Cohesion Fund, European Commission, Portugal, action for annulment (EU), balance of payments assistance, decontamination, fraud, redemption

30.12.2006

EN

Official Journal of the European Union

C 326/73

— By accepting the fact that there was no public hearing in the
proceedings to include ‘Artos de El Ejido’ in the list of SICs
and by not replying to the applicants' letters, the defendant
has infringed basic procedural rules thereby depriving the
applicants of their rights.

(1) OJ L 259, of 21.09.2006, p. 1.

The applicant claims, in particular, that in the period elapsing
between the proposal and the approval of SCI ES6110006 the
Commission did not undertake any assessment of the social or
economic features of the area, or of the state of protection of
the pieces of land, in spite of the requests to that end made by
instead merely accepted the
the municipality of Níjar, but
proposal made by the Regional Council of Andalucia without
evaluating whether that land was suitable.

(1) OJ L 259, 21.09.2006, p. 1.

Action brought on 21 November 2006 — FRESYGA v
Commission

(Case T-323/06)

(2006/C 326/150)

Language of the case: Spanish

Parties

Applicant: Fresyga (Almería, Spain)
Daudí, lawyer)

(represented by:

J. Rovira

Defendant: Commission of the European Communities

Parties

Action brought on 23 November 2006 — Município de
Gondomar v Commission

(Case T-324/06)

(2006/C 326/151)

Language of the case: Portuguese

Form of order sought by the applicant

— a declaration that this action for annulment is admissible
and that the Decision of 19 July 2006 adopting, pursuant to
Council Directive 92/43/EEC, the list of sites of Community
importance for the Mediterranean biogeographical region is
in part invalid, in so far as it affects ES6110006, and that
that SCI should be removed from its sphere of application;

— or, in the alternative, a declaration that the Decision of 19
July 2006 adopting, pursuant
to Council Directive
92/43/EEC, the list of sites of Community importance for
the Mediterranean biogeographical region is in part invalid,
in so far as the property ‘Coto de Padilla’ situated in the
municipal (1) district of Níjar, with an area of 8 500 000
square metres must be removed from SCI ES6110006;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action challenges the Commission Decision of 19 July
2006 adopting, pursuant to Council Directive 92/43/EEC, the
list of sites of Community importance for the Mediterranean
biogeographical
it declares the ES6110014
‘Ramblas de Jergal, Tabernas y Sur de Sierra Alhamilla’ to be a
Site of Community Interest in its entirety or, in the alternative,
in so far as that list includes property belonging to the appli-
cant.

in that

region,

The pleas in law and main arguments are similar to those put
forward in Case T-322/06 Manuel Espinosa and Others v Commis-
sion.

Applicant: Município de Gondomar (Gondomar, Portugal) (repre-
sented by:
J.L. da Cruz Vilaça, D. Choussey and L. Pinto
Monteiro, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— a declaration that the decision of the Commission of the
European Communities C(2006) 3782 of 16 August 2006
on the cancellation of the financial assistance granted by the
Cohesion Fund for Project No 95/10/61/07 — Redevelop-
ment of Grande Porto/Sul — Subsistema de Gondomar
(Portugal) by Commission Decision C (95) 3281 of 18
December 1995, cancelling the total amount of the assis-
tance of EUR 7 778 535 allocated to the project and
ordering
sum of
to
EUR 6 222 828, is vitiated by manifest errors of assessment,
is contrary to Regulation No 1164/94 (1) and to the princi-
ples of proportionality and legal certainty and,
in conse-
quence,

reimburse

applicant

the

the

— principally, annulment of the contested decision or,

— in the alternative, annulment in part of the contested deci-
sion and a declaration that the applicant is entitled to the
whole of the Cohesion Fund financing, except for the sum
of EUR 537 863;

— an order that the Commission should bear its own costs and

also those of the applicant.

C 326/74

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

Action brought on 24 November 2006 — Boston Scientific
v OHIM — Terumo (CAPIO)

This action seeks annulment of the contested decision pursuant
to Article 230 EC, in so far as that decision cancels the total
amount of the assistance of EUR 7 778 535 allocated to Project
No 95/10/61/017 and orders the applicant to reimburse the
sum of EUR 6 222 828.

In the contested decision, the Commission claims that the appli-
cant committed irregularities, with regard to Regulation No
1164794 and Commission Decision C (95) 3281 which
granted the European Community financing for the project.
Those irregularities relate in essence to payments made outside
the period of eligibility, unjustified expenditure and the fact that
the applicant has not completed the works within the period
fixed.

First, the applicant maintains that the contested decision is not
based on sufficient reasons and that it is contrary to the prin-
ciple of
legal certainty. That is because the Commission on
several occasions based the contested decision on unclear
criteria and rejected some of the applicant's arguments without
providing grounds for its conclusions.

Second,
vitiated by manifest errors of assessment of the facts, in that:

the applicant claims that

the contested decision is

— due justification has been produced for all amounts put

forward by the applicant;

— the Commission has displayed a lack of clarity in deter-
mining the amounts to be justified, not having also exam-
ined the evidence presented by the applicant to justify that
expenditure;

— the Commission has rejected the applicant's explanations
without establishing the exact legal basis of that rejection;

— the Commission has misinterpreted the facts and the docu-
ments put before it, for the sole purpose of showing fraudu-
lent intent on the applicant's part when there was never any
such intent.

the applicant considers that

Third,
the
amount of the aid, in those circumstances, constitutes an infrin-
gement of Regulation No 1164/94, in that: (i) all the objectives
of that regulation and of Commission Decision C (95) 3281
were attained and (ii) Article H of Annex II was infringed.

the cancellation of

the project and the lack of any fraudulent

Last, the applicant alleges that, having regard to the completion
the
of
contested decision runs counter to the principle of proportion-
ality and to Article 5 EC.

intent,

(Case T-325/06)

(2006/C 326/152)

Language in which the application was lodged: English

Parties

Applicant: Boston Scientific Ltd (Christ Church, Barbados) (repre-
sented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Terumo
Kabushiki Kaisha (Tokyo, Japan)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM
of 14 September 2006, served to the representatives of the
plaintiff on 18 September 2006, in Case R 61/2006-2;

— order OHIM to pay the costs of the proceedings before the

Court and Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CAPIO’
goods in class 10 — application No 2 554 434

for

Proprietor of the mark or sign cited in the opposition proceedings:
Terumo Kabushiki Kaisha

(1) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund.

Mark or sign cited: The national and Community word marks
‘CAPIOX’ and ‘CAPIOX PULSE’ for goods in class 10

Decision of the Opposition Division: Rejection of the opposition in
its entirety