Joined Cases T-2/05, T-3/05, T-49/05, T-118/05 and T-119/05: Order of the Court of First Instance of 5 September 2007 — ReckittBenckiser v OHIM
Date: 2007-11-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), chemical product, polishing and scouring preparations, trade-mark law

24.11.2007

EN

Official Journal of the European Union

C 283/41

Pleas in law and main arguments

This action seeks the annulment of Commission Decision
C(2007) 3893 of 8 August 2007, by which the defendant made
a financial correction in the assistance granted by the European
Regional Development Fund (ERDF) to the applicant for the
development of a ‘Rete di piazze telematiche [infrastructure for
universal access to information highways] per la Città di Napoli’,
together with compensation for the damage caused by that deci-
sion.

In support of its application for annulment of the contested
decision, the applicant makes the following submissions:

— The decision is illogical, inadequate and completely wanting
any legal and factual grounds,
insofar as the Commission
deliberately failed to take account of all the parameters (both
as to form and substance) which should have been examined
for the purposes of the correct application of Article 24 of
Regulation No 4253/88 and, consequently, its own assess-
ment as to whether the applicant is responsible for the irre-
gularities of which it is accused is irremediably vitiated.

— The concept of

irregularity in Article 24 of Regulation
No 4253/88 has been misinterpreted and misapplied,
insofar as the objections levelled against the applicant do
not come within the definition of
‘significant changes’
affecting the nature or conditions of the operation that is
being financed or, even less, within the category of ‘sums
received unduly’ for the purposes of the Community budget.

— The Commission is responsible for the initial delay of the
project, insofar as, even though the date for the initiation of
the Project and for the eligibility of expenditure was 1 July
1997, the funding agreement was approved by the Commis-
sion on 14 July 2007 and notified to the Comune di Napoli
only on 25 July 1997.

— The failure to take into account,

the purposes of
the entire
assessing the eligibility of
seven-month period which it
took the Commission to
approve the amended version of the project submitted by
the applicant.

for
the expenditure,

— The Commission incorrectly concluded that the discovery of
asbestos and the subsequent delay caused by its removal did
not constitute force majeure.

— The suspensory effect of

the Tribunale
Amministrativo Regionale was incorrectly limited to the
period between 2 August 2001 (date of the judgment) and

the judgment of

5 December 2001 (date when the judgment on appeal of
the Consiglio di Stato was notified to the applicant) and that
period was limited to invoices issued in connection with the
contract for the supply of computer technology, the subject
matter of the suspension itself.

— Breach of the principle of proportionality,

insofar as the
Commission totally failed to take account, for the purposes
of calculating the reduction in the assistance, of the fact that
the applicant had acted in good faith, that the (alleged) irre-
gularities were of a negligible nature and seriousness, that
the operation being financed was actually completed and,
lastly, the fact that the responsibility for the facts alleged
must be attributed in part to the Commission itself and in
part to force majeure.

— Breach of the obligation to state reasons, insofar as the Deci-
sion does not explain why the alleged irregularities are to be
regarded as ‘significant’.

— As regards compensation for damage, the applicant submits
that, even if the Commission's conduct were not found to
be unlawful, it has nonetheless caused damage to the appli-
cant. The decision ordering repayment, in particular, caused
wholly unforeseeable and exceptional damage, especially in
view of the fact that the operation was completed success-
fully and with the congratulations of the Commission itself.

Order of the Court of First Instance of 5 September 2007
— ReckittBenckiser v OHIM

(Joined Cases T-2/05, T-3/05, T-49/05, T-118/05 and
T-119/05) (1)

(2007/C 283/74)

Language of the case: English

The President of the Court of First Instance (First Chamber) has
ordered that the case be removed from the register.

(1) OJ C 69, 19.3.2005.