Case T-25/07: Action brought on 30 January 2007 — Iride and Iride Energia v Commission
Date: 2007-03-24
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), energy industry, liberalisation of the market, redemption, tax exemption

C 69/24

EN

Official Journal of the European Union

24.3.2007

The applicant first argues that the contested decision failed to
properly assess the requirements for the application of Article 8
(5) of the CTMR, insofar as it did not take into consideration
and therefore totally disregarded the descriptive and generic
character of
in relation to cosmetics in the
Benelux territory.

the word ‘spa’

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘α’ for goods
in Class 33 (Application No 4 634 663).

In particular, the applicant submits that the contested decision
did not correctly assess several requirements provided for under
Article 8(5) of the CTMR since, contrary to the findings of the
First Board of Appeal, the signs at stake are not similar visually,
phonetically or conceptually for the relevant consumer to estab-
lish a link between them. Moreover, the applicant suggests that
the use of the ‘SPALINE’ Community trade mark is not capable
of
the earlier
Benelux trade mark ‘SPA’ and, finally, that it is not used without
due cause.

taking unfair advantage of

the reputation of

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1),
is wrongly held that absolute
grounds for refusal exist. Furthermore, the scope and meaning
of Article 12 of Regulation (EC) No 40/94 are misconstrued.

in that

it

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

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

Action brought on 5 February 2007 — Borco-Marken-
Import Matthiesen v OHIM (α)

(Case T-23/07)

(2007/C 69/52)

Language of the case: German

Action brought on 30 January 2007 — Iride and Iride
Energia v Commission

(Case T-25/07)

(2007/C 69/53)

Language of the case: Italian

Parties

Applicant: Borco-Marken-Import Matthiesen GbmH & Co. KG
(Hamburg, Germany) (represented by M. Wolter, lawyer)

Parties

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

Applicants: Iride and Iride Energia (Turin, Italy) (represented by:
L.G. Radicati di Brozolo, M. Merola and C. Bazoli, avvocati)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 30
November 2006 in Case R 0808/2006-4;

— Declare that the provisions of Article 7(1)(b) and (c) and of
Article 7(2) of Regulation (EC) 40/94 do not preclude publi-
cation of the mark applied for in respect of goods in Class
33 (‘alcoholic beverages (excluding beer), wines, sparkling
wines and beverages containing wine’);

Forms of order sought

The applicants claim that the Court should:

— declare that the Decision is void in so far as it classes the
measures as State aid, and in so far as it suspends payment
of the aid until such time as Italy has provided evidence that
AEM Torino has refunded the aid declared to be unlawful
and incompatible with Decision 2003/193/EC of 5 June
2002 concerning tax relief for former municipal administra-
tive bodies;

— Order the Office for Harmonisation in the Internal Market

to pay the costs.

— order the Commission to pay the costs.

24.3.2007

EN

Official Journal of the European Union

C 69/25

Pleas in law and main arguments

Action brought on 7 February 2007 — US Steel Košice v
Commission

The application lodged by Iride SpA and Iride Energia SpA (‘the
applicants’) concerns the Decision of 8 November 2006 by
which the Commission closed the proceeding initiated pursuant
to Article 88(2) EC to investigate the compatibility with Com-
munity law of a refund that Italy intends to grant to AEM
Torino for stranded costs in the energy sector (1).

The applicants claim that the Court of First Instance of the
European Communities should declare that the Decision is void
in so far as it classes as State aid the measures taken to reim-
burse AEM Torino in respect of the stranded costs incurred
during the liberalisation of the energy sector, and in so far as it
suspends payment of
the aid until such time as Italy has
provided the Commission with evidence that AEM Torino has
not received the aid declared to be unlawful and incompatible
with Decision 2003/193/EC concerning tax relief for former
municipalizzate [municipal administrative bodies] (‘the Tax Relief
Decision’), or with evidence that AEM Torino has reimbursed,
with interest, any such aid that it may have received.

The application is based inter alia on the following main pleas:

(a) The measure in question does not constitute State aid in
that it was not financed through the use of State resources
and does not accord the recipients gratuitous advantage.

(b) The judgment

in Deggendorf (2)

is not applicable in the
present case. The Commission has failed, in particular, to
show that the conditions that must be met — according to
the principles that may be extracted from Deggendorf — in
order for payment of the aid to be suspended, have in fact
been met. (In particular, the Commission has not shown the
potential cumulative effect of the new measures and the
earlier measures.)
In particular, the Commission has not
explained how it is possible that cumulative effects can arise
as a result of the aid which is the subject of the Tax Relief
Decision, and measures like the stranded costs, which are
designed merely to bring about equalisation, and thus the
effects of which are exhausted in the past, enabling the costs
incurred during the period when the market was regulated
to be amortised in a manner similar to the manner in which
the undertakings would have proceeded if the sector had
not been liberalised before those costs had been fully amor-
tised.

(1) OJ L 366, 21.12.2006, p. 62.
(2) Case C-355/95 TwD v Commission [1997] ECR I-2549.

(Case T-27/07)

(2007/C 69/54)

Language of the case: English

Parties

Applicant: US Steel Košice sro (Košice, Slovakia) (represented by:
E. Vermulst, lawyer, and C. Thomas, solicitor)

Defendant: Commission of the European Communities

Form of order sought

— Annul

the Commission decision of 29 November 2006
concerning the national allocation plan for the allocation of
greenhouse gas emission allowances notified by Slovakia in
accordance with Directive 2003/87/EC of
the European
Parliament and of the Council;

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission decision of
29 November 2006 concerning the national allocation plan for
the allocation of greenhouse gas emission allowances for the
period 2008-2012 notified by Slovakia in accordance with
Directive 2003/87/EC (1).

In support of it's application, the applicant firstly alleges that
the contested decision infringes Title 4, point 2(a) of Annex XIV
to the Act of Accession 2003 (2) in that it incorrectly asserts
that the conditions in that provision are independent obligations
applying until 2009 regardless of whether Slovakia continues to
grant the applicant the tax exemption that Slovakia may apply
to the applicant until the end of the fiscal year 2009 notwith-
standing Article 87 and 88 EC. The applicant argues that,
accordingly, the decision is also contrary to criterion (4) of
Annex III to Directive 2003/87/EC, which provides that the
national allocation plan shall be consistent with other Com-
munity legislative and policy instruments.

the applicant submits that

the contested decision
Secondly,
infringes the principle of
legitimate expectations in that the
Commission at several occasion made the applicant expect that
the production limitations provided for in Title 4, point 2(a) of
Annex XIV to the Act of Accession would cease to apply once
the applicant no longer benefited from the tax exemption.