Case T-322/06: Action brought on 21 November 2006 — Espinosa Labella and Others v Commission
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: European Commission, Mediterranean region (EU), Spain, action for annulment (EU), environmental protection, protected area, protection of animal life

C 326/72

EN

Official Journal of the European Union

30.12.2006

Form of order sought

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of
8 August 2006 notified to the applicant 27 September
2006,
in cancellation proceedings No 830C (Case No R
945/2005-1) and consequently declare Community trade
mark No 573 774 ‘GENERAL OPTICA’ filed on 10 July
1997 and registered on 10 September 1999, as invalid, or
in the alternative, revoked;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The figurative mark ‘GENERAL OPTICA’
for services in class 42 (Opticians' services) — Community trade
mark No 573 774

Proprietor of the Community trade mark: General Óptica SA

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The earlier national trade name ‘Generalóptica’ for import and
retail sale of optical, precision and photographic apparatus

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

— declaration that the inclusion of SIC ES 166 0014 ‘Artos de
El Ejido’
in the decision adopted by the Commission
concerning the Mediterranean region is null and void, and
an order ‘Artos de El Ejido’ to be removed from the list of
‘sites of Community importance’ contained in that decision;

— alternatively, a declaration that the inclusion of the farms
situated in the municipality of El Ejido north of Santa María
del Águila in the SIC is null and void or, to the same effect,
a declaration that
situated
the inclusion of
between the greenhouses to the north of Santa María del
Águila in the SIC ‘Artos de El Ejido’ is null and void;

the farms

— order the Commission to pay the costs.

Pleas in law and main arguments

is

action

brought

against Commission Decision
This
2006/613/EC of 19 July 2006 adopting, pursuant to Council
Directive 92/43/EEC, the list of sites of Community importance
for the Mediterranean biogeographical region (1), in so far as it
declares ES61 0014 ‘Artos de El Ejido’ a site of Community
importance, either in its entirety or, alternatively, in so far as it
includes in that list specific farms belonging to the applicants.

Decision of the Board of Appeal: Dismissal of the appeal

In support of their claims the applicants submit:

Pleas in law: Infringement of among others Article 8(1) and (4)
of Council Regulation No 40/94 as there is a likelihood of
confusion between the two signs and the applicant's sign is
granted national protection.

Infringement of Rule 22 of Commission Regulation No
2868/95 as OHIM omitted its duty to ask the applicant to
present evidence of the earlier use invoked.

Action brought on 21 November 2006 — Espinosa Labella
and Others v Commission

(Case T-322/06)

(2006/C 326/149)

Language of the case: Spanish

Parties

Applicants: Manuel Espinosa Labella and Others (Almería, Spain)
(represented by: J. Rovira, lawyer)

Defendant: Commission of the European Communities

— that the defendant has not carried out a proper assessment
of the Kingdom of Spain's proposal to include ‘Artos de El
Ejido’ in the list of sites of Community importance in the
Mediterranean biogeographical area, contrary to the provi-
sions of Article 4 of Directive 92/43/EC. The applicants
state, in that respect, that as soon as they became aware of
that proposal, they complained on a number of occasions to
the staff at the Commission Directorate General
for the
Environment, claiming:

— extensive anthropisation of the land concerned making it
for wild flora and

unsuitable as an appropriate habitat
fauna;

— failure to define the SIC which it purports to designate or, in
the alternative, failure to define the SIC appropriately by
means of the boundaries of private properties and not the
natural characteristics of the land;

— lack of any scientific basis for the protection of designated
species on farms situated in areas of industrial agriculture or
intensive agriculture in greenhouses.

As regards the SIC at issue, the affected area was not correctly
selected as the national authorities have not provided the full
scientific data required. However, although the Spanish authori-
ties have failed to provide such data,
the Commission was
obliged to do so. In that regard, the applicants submit that the
reasoning on which a decision is based, which designates an
area as deserving protection, must be accompanied by a
substantial amount of scientific evidence which must satisfy the
criteria laid down in Annex III of the directive.

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.