Case T-369/06: Action brought on 7 December 2006 — Holland Malt v Commission
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), aid to agriculture, control of State aid, malt

24.2.2007

EN

Official Journal of the European Union

C 42/23

2. Cases shall be allocated to the Chambers in turn, in accord-
ance with the date on which they are registered at
the
Registry, following three separate rotas, namely:

— for cases concerning application of the competition rules
applicable to undertakings, the rules on State aid and the
rules on trade protection measures;

— for cases concerning the intellectual property rights
referred to in Article 130(1) of the Rules of Procedure;

— for all other cases.

In applying those rotas, the Third Chamber shall be taken
into consideration twice at each fifth turn.

The President of the Court of First Instance may derogate
from the rotas on the ground that cases are related or with a
view to ensuring an even spread of the workload.

Action brought on 1 December 2006 — Bateaux Mouches
v OHIM — Castanet (Bateaux Mouches)

(Case T-365/06)

(2007/C 42/41)

Language in which the application was lodged: French

Parties

Applicant: SA Compagnie des Bateaux Mouches (Paris, France)
(represented by: D. de Leusse, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Jean-Noël Castanet (Paris, France)

Form of order sought

The Court is asked to:

— Declare the action by Compagnie des Bateaux Mouches

admissible;

— Annul the decision of the First Board of Appeal of OHIM of
7 September 2006 (Case R 1172/2005-1, Castanet v
Compagnie des Bateaux Mouches);

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: the word mark ‘Bateaux Mouches’ for
services in Classes 39, 41 and 42 — Community trade mark
No 1 336 122

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Jean-Noël Castanet

Decision of the Cancellation Division: rejection of the application
for cancellation

Decision of the Board of Appeal: annulment of the decision of the
Cancellation Division

Pleas in law: breach of Article 7(1)(b) of Council Regulation
No 40/94 (1) on the grounds
the contested decision
wrongly held the applicant's trade mark to be descriptive and
without distinctive character and inasmuch as it held that the
applicant had not proved that its trade mark had acquired by
usage a distinctive character for the services concerned.

that

(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 7 December 2006 — Holland Malt v
Commission

(Case T-369/06)

(2007/C 42/42)

Language of the case: English

Parties

Applicant: Holland Malt BV (Lieshout, Netherlands) (represented
by: O.W. Brouwer and D. Mes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul,

in full or in part, Articles 1, 2, 3 and 4 of the

contested decision;

— order the defendant to pay the costs of the proceedings;

— take any other measures that the Court considers appro-

— Order OHIM to pay the costs.

priate.

C 42/24

EN

Official Journal of the European Union

24.2.2007

Pleas in law and main arguments

Action brought on 4 December 2006 — Germany v
Commission

The applicant seeks the annulment of Commission Decision
C(200) 4196 final (1) of 26 September 2006 by which the
Commission declared that a subsidy that the Netherlands condi-
tionally granted to the applicant constitutes State aid that is
incompatible with the common market.

The applicant contests that the Commission was entitled to find
that the subsidy constituted State aid incompatible with the
common market and submits that the Commission committed
infringements of Article 87 EC and a number of principles of
Community law. These infringements concern the following:

Parties

(Case T-371/06)

(2007/C 42/43)

Language of the case: German

1) Infringement of Article 87(1) EC related to a failure to estab-
lish that the subsidy constituted State aid in the sense of this
provision and a misconstruction and misapplication of Com-
munity case law on this point;

Applicant: Federal Republic of Germany (represented by: M.
Lumma, C. Schulze-Bahr, C. von Donat (lawyer))

Defendant: Commission of the European Communities

2) Infringement of Article 87(3) EC related to:

Form of order sought

a) A misconstruction and misapplication of the Community

Guidelines (2) on State aid in the agriculture sector;

b) A failure to properly balance the beneficial effects of the
subsidy and its impact on trading conditions inside the
Community;

— Annul Commission Decision C(2006) 4193 final of
25 September 2006 on the reduction of the financial contri-
bution of the ERDF under Objective 2 of the programme for
North Rhine-Westphalia (ERFD No 97.02.13.005) awarded
by Commission Decision No C(97) 1120 of 7 May 1997;

— order the Commission to pay the costs.

c) A failure to properly assess and establish the impact of

the subsidy on capacities in the malt industry;

Pleas in law and main arguments

d) A failure to take account of events and developments that
occurred between the moment the Dutch government
decided to conditionally grant
the subsidy and the
moment the Commission adopted the contested decision;

3) Infringement of the principle of sound administration related
to a failure to duly investigate all aspects and interests
involved in the granting of the subsidy, including events and
developments that occurred between the moment the Dutch
government decided to conditionally grant the subsidy and
the moment the Commission adopted its decision.

4) Infringement of the duty to state reasons as laid down in

Article 253 EC.

(1) C 14/2005 (ex N 149/2004) Holland Malt BV.
(2) Community Guidelines
(OJ 2000 C 28, p. 2).

for State aid in the agriculture sector

By the contested decision, the Commission reduced the contri-
bution of the European Regional Development Fund (ERDF)
under Objective 2 of the programme for Nordrhein-Westfalen.

its claim,

In support of
the applicant alleges breach of
Article 24(2) of Regulation No 4253/88 (1), on the ground that
the conditions for a reduction were not fulfilled. In this connec-
tion, it submits, in particular, that the deviations from the indi-
cative financing plan do not amount to a significant alteration
of the programme.

Even if the programme were significantly altered, the applicant
submits that the Commission gave its prior consent pursuant to
its ‘Guidelines for the financial closure of operational measures
(1994-1999) under the Structural Funds’ (SEK (1999) 1316).

Assuming that the conditions for a reduction are met, the appli-
cant submits that the defendant did not use its discretion in rela-
tion to the specific programme. According to the applicant, a
reduction would not amount to a misuse of powers only if it
appeared to be justified, as a whole, in the light of implementa-
tion of
the objective.
According to the applicant, as the defendant did not use this
discretion, it also failed to provide justification.

the programme and attainment of