Case T-207/07: Action brought on 7 June 2007 — Eurallumina v Commission
Date: 2007-06-07
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), control of State aid, excise duty, mineral oil, redemption, tax exemption

C 183/36

EN

Official Journal of the European Union

4.8.2007

Pleas in law and main arguments

Community trade mark concerned: word mark ‘333’ for goods in
Class 16

mark (1), inasmuch as, according to the applicant, the designa-
tion ‘555’, in relation to the goods indicated, is neither descrip-
tive nor devoid of distinctive character.

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of the provisions of Article 7(1)(b)
and (c) of Regulation No 40/94 on the Community trade
mark (1), inasmuch as, according to the applicant, the designa-
tion ‘333’, in relation to the goods indicated, is neither descrip-
tive nor devoid of distinctive character.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Action brought on 7 June 2007 — Eurallumina v
Commission

(Case T-207/07)

(2007/C 183/71)

Language of the case: English

Action brought on 6 June 2007 — Agencja Wydawnicza
Technopol v OHIM (‘555’)

Parties

(Case T-202/07)

(2007/C 183/70)

Language of the case: Polish

Applicant: Eurallumina SpA (Portoscuso, Italy) (represented by: L.
Martin Alegi, R. Denton and E. Cormack, Solicitors)

Defendant: Commission of the European Communities

Parties

Applicant: Agencja Wydawnicza ‘Technopol’ Sp. z o.o. (repre-
sented by: D. Rzążewska, lawyer)

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

Form of order sought

— set aside in its entirety decision no R 1278/2006-4 delivered
on 22 March 2007 by the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs);

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

Pleas in law and main arguments

Community trade mark concerned: word mark ‘555’ for goods in
Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of the provisions of Article 7(1)(b)
and (c) of Regulation No 40/94 on the Community trade

Form of order sought

— Either:

— annul the entirety of the contested decision; or

— order that the present exemption authorised by Council
Decision 2001/224/EEC is lawful until 31 December
2006 and that any sums foregone by the Italian State
should not be considered as unlawful State aid, or at
least not be recovered; or

— annul the entirety of the contested decision and order
that the present exemption authorised by Council Deci-
sion 2001/224/EEC is lawful until 31 December 2006
and that any sums foregone by the Italian State should
not be considered as unlawful State aid, or at least not
be recovered; or

— order that a maximum of 3 EUR per tonne should be

recovered.

— Either:

— annul Articles 1, 4, 5 and 6 of the contested decision

insofar as they pertain to Eurallumina; or

— order that the present exemption authorised by Council
Decision 2001/224/EEC is lawful until 31 December
2006 and that any sums foregone by the Italian State
should not be considered unlawful State aid, or at least
not be recovered; or

4.8.2007

EN

Official Journal of the European Union

C 183/37

— annul Articles 1, 4, 5 and 6 of the contested decision
insofar as they pertain to Eurallumina and order that the
present
exemption authorised by Council Decision
2001/224/EEC is lawful until 31 December 2006 and
that any sums foregone by the Italian State should not
be considered as unlawful State aid, or at least not be
recovered; or

— order that a maximum of 3 EUR per tonne should be

recovered.

— In the alternative, modify Articles 5 and 6 of

the
contested decision insofar as they pertain to Eurallumina
to the effect that pursuant to the present exemption
until 31 December 2006, any sums foregone by the
Italian State should not be recovered; and

presumption of validity, lex specialis, effet utile and good adminis-
tration by finding that the application of the exemption from
excise duty on mineral oils used for alumina production in,
among others, Sardinia was a State aid recoverable from
1 January 2004, as the applicant had the right to expect that
the exemption approved by Council Decision 2001/224/EC
until 31 December 2006 was a legally valid Community act and
that any measure taken by the Italian authorities and the appli-
cant to implement and rely on this decision would not lead to
an unlawful result.

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the
Community framework for the taxation of energy products and elec-
tricity (OJ 2003 L 283, p. 51).

(2) Council Decision 2001/224/EC of 12 March 2001 concerning
reduced rates of excise duty and exemptions from such duty on
certain mineral oils when used for specific purposes (OJ 2001 L 84,
p. 23).

(3) Community guidelines on State aid for environmental protection

— order that the Commission pay all of the costs of the

(OJ 2001 C 37, p. 3), in particular paragraph 51(1)(a) and (b).

proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2007) 286 final of 7 February 2007 by which the Commis-
sion found that the exemptions from excise duty granted by
France, Ireland and Italy in respect of heavy fuel oils used in the
production of alumina as from 1 January 2004 constituted
State aid within the meaning of Article 87(1) EC and that a
certain part of this aid was incompatible with the common
market.

In support of its application, the applicant submits that the
continuation of the exemption from excise duty on mineral oils
used as fuel for alumina production in Sardinia also after the
entry into force of Council Directive 2003/96/EC (1) on
1 January 2004 does not constitute State aid, as Article 18(1) of
the directive and Annex II hereto expressly state that
this
exemption, which was
by Council Decision
approved
2001/224/EC (2), continues until 31 December 2006. According
to the applicant, Directive 2003/96/EC thus expressly revalidates
the specific exemption from excise duty granted to the applicant
until 31 December 2006.

Parties

Action brought on 5 June 2007 — BOT Elektrownia
Bełchatów and Others v Commission

(Case T-208/07)

(2007/C 183/72)

Language of the case: English

Furthermore, the applicant alleges that even though the exemp-
tion approved by Council Decision 2001/224/EC is a selective
measure at first sight, it is justified by the ‘overall nature and
logic’ of both the Community rules and the Italian tax system,
and thus is not State aid.

the exemption
Moreover, the applicant submits that even if
approved by Council Decision 2001/224/EC is to be considered
State aid, it qualifies for an exemption from the prohibition of
Article 87(1) EC under the rules for environmental aid (3).

Finally, the applicant contends that the Commission breached
certainty,
the principles of

expectations,

legitimate

legal

Applicants: BOT Elektrownia Bełchatów S.A. (Rogowiec, Poland),
BOT Elektrownia Turów S.A.
(Bogatynia, Poland), BOT Elek-
trownia Opole S.A. (Brzezie, Poland), Elektrownia ‘Kozienice’ S.
A. (Świerże Górne, Poland), Elektrownia Połaniec S.A. — Grupa
Electrabel Polska (Połaniec, Poland), Elektrownia ‘Rybnik’ S.A.
(Rybnik, Poland), Elektrownia Skawina S.A. (Skawina, Poland),
Elektrownia ‘Stalowa Wola’ S.A. (Stalowa Wola, Poland), Połud-
niowy Koncern Energetyczny S.A.
(Katowice, Poland), Zespół
Elektrowni Dolna Odra S.A. (Nowe Czarnowo, Poland), Zespół
Elektrowni Ostrołęka S.A. (Ostrołęka, Poland) and Zespół Elek-
trowni Pątnów-Adamów-Konin S.A. (Konin, Poland) (represented
by: B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo
and S. Boullart, lawyers)

Defendant: Commission of the European Communities