Case T-241/07: Action brought on 10 July 2007 — Buzzi Unichem v Commission
Date: 2007-09-08
Institutions: Court of First Instance
Subjects: action for annulment (EU), environmental protection, equal treatment, greenhouse gas, tradeable emission permit

C 211/44

EN

Official Journal of the European Union

8.9.2007

The applicants also put forward a number of heads of complaint
concerning the determination of the amount of the fine. They
first allege a breach of Article 23(3) of Regulation No 1/2003,
incorrect application of the guidelines on setting fines, infringe-
ment of the principles of equality, legal certainty and propor-
tionality and breach of
the obligation to state reasons. The
applicants argue that the Commission erred in its assessment of
the gravity of the breach, in particular through misappraisal of
the nature of the breach, by failing to take account of the negli-
gible market impact and through its incorrect determination of
the relevant geographical market. They further claim that the
Commission erred in determining the basic amount of the fine,
the multiplication factor for the deterrent effect and the dura-
tion. In addition, it is alleged that the Commission failed to take
adequate account of the mitigating circumstances and that the
unduly lengthy duration of
the administrative proceedings
resulted in a disproportionately high fine by reason of the fact
that Commission policy in regard to the level of fines had
become stricter in the intervening period.

In conclusion, the applicants submit that the reduction applied
by the Commission to the amount of the fine by reason of the
unreasonable length of
the administrative proceedings was
disproportionately modest.

which envisage that the operator may maintain part of the
allocated allowances in the event of ‘closure due to processes
of production rationalisation’ (Article 1(4) and Article 2(4)
of the Decision);

— Order the Commission to pay to the applicant all the costs

of these proceedings.

Pleas in law and main arguments

allocation plan notified by

The decision contested by this action has determined that the
national
letter of
15 December 2006 is incompatible with Directive 2003/87/EC
of the European Parliament and of the Council of 13 October
2003 establishing a scheme for greenhouse gas emission allow-
ance trading within the Community and amending Council
Directive 96/61/EC.

Italy by

The specific point at issue is the possibility for the operator to
the allocated allowances in the event of
maintain part of
closure, due to processes of rationalisation, of all or part of the
production installations.

Action brought on 10 July 2007 — Buzzi Unichem v
Commission

In support of its claims, the applicant submits:

(Case T-241/07)

(2007/C 211/82)

Language of the case: Italian

Parties

Applicant: Buzzi Unichem SpA (represented by: C. Vivani and M.
Vellano, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 15.5.2007 concerning
the national plan for the allocation of greenhouse gas emis-
sion allowances notified by Italy in accordance with Direc-
tive 2003/87/EC of the European Parliament and of the
Council — for infringement of the EC Treaty and the princi-
ples and rules of law adopted in its application — to the
extent that the national allocation plan must be altered so as
to render no longer permissible rationalisation measures

— That the defendant (the Commission) erroneously applied its
own critical analysis in terms of ‘adjustment of allocations’,
excluding the possibility of so-called ‘ex-post adjustments’.
In that regard, the applicant accepts that any type of adjust-
ment may distort the market and create business uncertainty
and infringe Criterion 10 of Annex III to the Directive.
According to the applicant, what is at issue is rather avoid-
ance of the loss of ownership of the allocation, and therefore
loss of the legal capacity to make use of it at other installa-
tions. In essence, the issue should be to avoid an obstacle to
the free organisation and development of an undertaking's
subjective rights, which is moreover contrary to the princi-
ples of reasonableness, proportionality, and protection of
the environment and competition, pursuant to Article 5,
Article 174 and Article 157 EC.

— The contested decision in addition contradicts the logical
premises on which it is based. Specifically on this point, in
recital 4 to the contested decision the Commission itself
admits that
the Directive envisages the possibility that
Member States may introduce adjustments, provided that the
effect of adjustment is not retroactive, and that it does not
harm the functioning of
In the
present case, the operator of an installation which is closed
will continue to be present on the market and to operate at
other authorised installations. In the words of the Commis-
sion itself, an ‘adjustment of allocations’ should therefore be
possible.

the Community system.

— The defendant has failed to explain the reasoning which
led it to hold that the criticised scheme was incompatible as
‘ex-post adjustment’.

8.9.2007

EN

Official Journal of the European Union

C 211/45

— Infringement of the principle of non-discrimination, in the
the Commission's decision
the United

light of
approving the national allocation plan of
Kingdom.

the provisions of

Action brought on 6 July 2007 — Weiler v OHIM — CISQ
(Q2WEB)

(Case T-242/07)

(2007/C 211/83)

Language in which the application was lodged: German

Parties

Applicant: Dieter Weiler (Pulheim, Germany) (represented by: V.
von Bomhard, T. Dolde and A. Renck, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
CISQ Federazione Certificazione Italiana Sistemi di Qualità
Aziendali

Decision of the Cancellation Division: Declaration of the invalidity
of the trade mark concerned

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 52(1)(a) in conjunction with
Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the
opposing trade marks are not visually, phonetically or concep-
tually similar and the differences between the marks are suffi-
cient to rule out the risk of confusion on the part of relevant
consumers.

(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 11 July 2007 — Republic of Poland v
Commission of the European Communities

(Case T-243/07)

(2007/C 211/84)

Language of the case: Polish

Form of order sought

Parties

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 29 March 2007 in Case R 893/2005-1, and

— order the defendant to pay the costs of the proceedings, but
with regard to the intervention of the other party before the
Board of Appeal, the defendant and the intervener should be
ordered to pay the costs.

Applicant: Republic of Poland (represented by: E. Ośniecka-
Tamecka, Agent)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought:
‘Q2WEB’ for goods and services in
classes 9, 35, 38 and 42 (Community trade mark No 2 418 150)

Proprietor of the Community trade mark: the Applicant

Applicant for the declaration of invalidity: CISQ Federazione Certifi-
cazione Italiana Sistemi di Qualità Aziendali

— declare invalid Commission Decision 2007/361/EC of 4 May
2007 on the determination of surplus stocks of agricultural
products other than sugar and the financial consequences of
their elimination in relation to the accession of the Czech
Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
Poland, Slovenia and Slovakia (notified under document
number C(2007)1979) (1)
in so far as it relates to the
Republic of Poland;

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

for

services

Trade mark right of applicant for the declaration: the word mark
‘QWEB’
in class 42 (Community trade mark
No 1 772 078), the figurative mark ‘QWEB’ for services in
classes 35, 38 and 42 (Community trade mark No 1 871 201),
and the word mark ‘QWEBMARK’ for services in classes 35, 38
and 42 (Community trade mark No 1 771 963)

Pleas in law and main arguments

The contested decision determined the amounts of agricultural
products in free circulation within Polish territory on the date of
Polish accession to the European Union which, in the view of