Case T-227/07: Action brought on 28 June 2007 — Spain v Commission
Date: 2007-06-28
Institutions: Court of First Instance
Subjects: EAGGF Guarantee Section, European Commission, Spain, action for failure to fulfil an obligation, fruit vegetable, principle of proportionality, processed foodstuff, production aid

8.9.2007

EN

Official Journal of the European Union

C 211/37

Pleas in law and main arguments

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

By the present action, the applicant seeks the annulment of
Commission Decision No REM 03/05 of 7 May 2007 holding
that the remission of import duties is not justified in the par-
ticular case of the applicant. That decision was issued following
the application made to the Commission by the French national
authorities, who had claimed from the applicant payment of
anti-dumping duties on importation of colour television recei-
vers manufactured in Thailand by its subsidiary there, and on
which the subsidiary had applied for remission on the basis of
Article 239 of Council Regulation (EEC) No 2913/92 of
12 October 1992 establishing the Community Customs
Code. (1)

The applicant considers that it is entitled to the remission on
the basis of Article 239 of Regulation (EEC) No 2913/92, since,
in its opinion, it satisfies the two conditions laid down in that
provision.

As regards the first condition (the existence of a special situa-
tion), the applicant claims that its situation is certainly special
and is the result of, first, the conduct of the Commission which
changed its approach to interpretation of the legal provisions on
the origin of goods without having properly informed traders,
the national authorities who
and, second,
followed the approach adopted by the Commission.

the conduct of

As regards the second condition referred to in Article 239 of
Regulation (EEC) No 2913/92 (no deception or negligence), the
applicant claims that it cannot be considered to have been negli-
gent since it trusted in the validity of the initial position of the
Commission's services, who,
in the opinion of the applicant,
decided not to employ in its case a strict application of the rules
of origin but to apply to it the special anti-dumping duties on
all the receivers manufactured and exported by its Thailand
subsidiary.

(1) OJ L 302, p. 1.

Form of order sought

— annul the Decision of the First Board of Appeal of 18 April

2007 in Case R 1611/2006-1;

— order the Office for Harmonisation in the Internal Market to
enter trade mark application No 4 839 916 ‘PRANAHAUS’
in the Register of Community trade marks and

— order the Office for Harmonisation in the Internal Market to

pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PRANAHAUS’
for goods and services in classes 9, 16 and 35 (application
No 4 839 916)

Decision of the Examiner: Refusal 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), since there is no absolute ground for refusal
of registration of the trade mark applied for.

(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 20 June 2007 — Prana Haus v OHIM
(PRANAHAUS)

(Case T-226/07)

(2007/C 211/71)

Language of the case: German

Action brought on 28 June 2007 — Spain v Commission

(Case T-227/07)

(2007/C 211/72)

Language of the proceedings: Spanish

Parties

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Applicant: Prana Haus (Freiburg, Germany) (represented by N.
Hebeis, lawyer)

Defendant: Commission of the European Communities

C 211/38

EN

Official Journal of the European Union

8.9.2007

Forms of order sought

Defendant: Commission of the European Communities

— declare void Commission Decision 2007/243/EC of 18 April
2007 excluding from Community financing certain expendi-
ture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF), in so far as it forms the subject-matter
of the present action and,

— order the Commission to pay the costs.

Pleas in law and main arguments

The Kingdom of Spain disputes the contested decision in so far
as it provides for a financial correction of the costs incurred in
the context of production aid for products processed from
tomatoes in the financial years 2003 and 2004, in the amount
of EUR 4 090 316,46.

In support of its claims, the applicant alleges:

— infringement

3
2

729/70 (1)

of Articles
and

and
2
of Article

of Regulation
No
Regulation
of
No 1258/1999 (2) given the non-existence of the irregulari-
ties relied on by the Commission relating, in particular, to
the checks of primary materials at the delivery points, that is
to say, the absence of nightly checks by the inspectors of the
Extremadura Autonomous Community,
failure to retain
proof of weighing, and ‘en masse’ signature of delivery
notes;

Form of order sought

— Annul the decision adopted by the European Commission,
Director-General of Personnel
and Administration on
30 April 2007, rejecting complaint No R/6/07, registered on
8 January 2007, seeking annulment of the decision by the
European Commission's DG ADMIN not to grant her allow-
ances other than the reduced daily subsistence allowance of
EUR 28.78;

— order that the defendant pay the applicant, for the period of
16 November 2006 until 31 October 2008, the full daily
subsistence allowance of EUR 115.09 provided for by the
Commission Decision laying down rules on the secondment
of national experts to the Commission (C(2006) 2003) of
1 June 2006 less the amount of the daily subsistence allow-
ances already received by the applicant, plus an additional
monthly allowance of EUR 542.55;

— order

that

the defendant
incurred removal expenses;

reimburse the applicant her

— in the alternative, breach of the principle of proportionality,
given that the Commission decided to impose a financial
correction on the entire quantity of tomatoes delivered, even
though the actual
irregularity on which the correction is
based would concern only those quantities delivered at
night, which means that the corrections could have been
applied only to those quantities.

— order the defendant to bear the costs.

Pleas in law and main arguments

(1) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the
the common agricultural policy (OJ English Special

financing of
Edition 1970 (I), p. 218).

(2) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ L, 26.6.1999, 160,
p. 103).

Action brought on 29 June 2007 — Malheiro v
Commission

(Case T-228/07)

(2007/C 211/73)

Language of the case: English

Parties

Applicant: Ana Malheiro (Brussels, Belgium) (represented by: C.
Ebrecht, lawyer)

The applicant, who is working as a seconded national expert for
the Commission, wishes to receive i) full daily subsistence allow-
ance instead of the reduced daily subsistence allowance granted
by the Commission, and ii) a further monthly allowance instead
of removal expenses.

In support of her application, the applicant firstly submits that
the Commission committed an error of assessment since it
deemed the applicant's residence to be in Brussels because her
husband has his residence there. The applicant submits that her
stay in Brussels is only of a temporary character and that she is
to the same extent as any other seconded national expert
exposed to the same inconveniences and disadvantages resulting
in the temporary nature of the secondment.

the

that

alleges

applicant

Furthermore,
the Commission
infringed the principle of equal treatment and Article 20 of the
Charter of Fundamental Rights of the European Union since
Article 20(3)(b) of the Commission's decision laying down the
rules on the secondment of national experts to the Commission
experts
discriminates
against married
compared to unmarried seconded national
living
together with someone in a relationship.

seconded national

experts