Case T-46/08 P: Appeal brought on 28 January 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 6 December 2007 in Case F-40/06, Marcuccio v Commission
Date: 2008-01-28
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, appeal, damage, indemnification

C 79/32

EN

Official Journal of the European Union

29.3.2008

The applicant claims in support of its action that the contested
decision is based on an erroneous assessment of the facts. In
particular, adequate supporting evidence was inappropriately
regarded as being inadequate, and costs of employing temporary
assistants and trainees, together with costs provided for in the
budget and certain travel costs were inappropriately disallowed.

(1) Decision No 803/2004/EC of the European Parliament and of the
Council of 21 April 2004 adopting a programme of Community
action (2004 to 2008) to prevent and combat violence against chil-
dren, young people and women and to protect victims and groups at
risk (the Daphne II programme) (OJ 2004 L 143, p. 1).

Pleas in law: Misapplication of Article 7(1)(b) and (c) of Regu-
lation (EC) No 40/94 (1), as the name ‘SLIM LINE’ is neither a
descriptive indication nor is it devoid of any distinctive char-
acter.

(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 28 January 2008 — Furukawa Electric
North America v OHIM (SLIM LINE)

(Case T-36/08)

(2008/C 79/62)

Language in which the application was lodged: German

Parties

Applicant: Furukawa Electric North America,
United States of America) (represented by O. Rauscher, lawyer)

(Norcross,

Inc.

Appeal brought on 28 January 2008 by Luigi Marcuccio
against the judgment of the Civil Service Tribunal delivered
on 6 December 2007 in Case F-40/06, Marcuccio v
Commission

(Case T-46/08 P)

(2008/C 79/63)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

Other party to the proceedings: Commission of
Communities

the European

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

Form of order sought by the appellant

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 22 November 2007 in case number
R 1532/2007-2;

— order the Office for Harmonisation in the Internal Market

(Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SLIM LINE’ for
goods in Class 9 (Application No 5 907 266)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

— annul the order delivered on 6 December 2007 in Case
F-40/06 Marcuccio v Commission of the First Chamber of the
Public Service Tribunal of the European Union insofar as
(a) the action brought by the applicant at first instance was
dismissed on grounds other than absence of legal interest in
(b) the applicant's claims to obtain
bringing proceedings;
compensation in respect of
the damage (‘the damage in
question’) arising from the facts in the case were rejected;
and (c) the applicant was ordered to pay the defendant's
costs;

— declare that the action at first instance was admissible, and
in particular that the applicant, at the time he brought that
action, had a legal interest in bringing proceedings;

— uphold the conclusions relating to compensation for the
damage in question and order the defendant to pay all the
costs borne by the applicant in respect of both the action at
first instance and the present appeal;

— in the alternative, refer the present case back to the Public
Service Tribunal for a ruling on: (a) all those parts of the
present case on which the court did not rule or which were
annulled by the judgment to be made in this appeal; (b) the
costs of the action at first instance and of the appeal.

29.3.2008

EN

Official Journal of the European Union

C 79/33

Pleas in law and main arguments

Form of order sought

Absolute failure to state reasons and reasons which are, inter
alia, manifestly illogical, inconsistent and confused, absence of
preliminary enquiries, failure to rule on a fundamental fact of
the present case and infringement of the obligation of clare loqui,
misrepresentation and distortion of the facts (in particular, para-
graphs 10, 12, 26 to 38 inclusive and 42 to 46 inclusive of the
contested order).

Erroneous interpretation, misinterpretation and misapplication
of the general principles and provisions of law and Community
case-law on compensation for damage (in particular, paragraphs
42 to 46 of the contested order).

— annul Commission decision C(2007) 5400 final of
20 November 2007, notified on 21 November 2007,
concerning State aid No C 36/A/2006 (ex NN 38/2006)
which Italy paid to ThyssenKrupp, Cementir and Nuova
Terni Industrie Chimiche.

Pleas in law and main arguments

Manifest lack of logic of the judgment and ruling of the Civil
Service Tribunal on costs as well as unreasonableness, absolute
failure to state reasons,
inconsistency, misrepresentation and
distortion of the actual facts, arbitrariness (in particular, para-
graphs 49 and 50 of the contested order).

the State aid paid by Italy to
By the contested decision,
ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche,
and that granted but not yet paid to the same beneficiaries, in
the form of favourable tariff conditions for the supply of electri-
city, were declared incompatible with the common market.

Absolute failure to state the reasons for the decision which is
the subject-matter of the complaint in the action at first instance
(in particular, paragraphs 26 to 38 inclusive of the contested
order).

Misrepresentation and distortion of the facts and related proce-
dural errors which are so serious that they infringe irremediably
the rights of the applicant to a defence and infringe essential
procedural requirements such as to invalidate irremediably the
contested order (in particular, paragraph 24 of the contested
order).

Infringement of the rules concerning a fair trial, with particular
reference to the provisions of
the European Convention on
Human Rights (paragraphs 24 and 26 to 38 inclusive of the
contested order).

Action brought on 31 January 2008 — Italy v Commission

(Case T-53/08)

(2008/C 79/64)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, Avvo-
cato dello Stato)

Defendant: Commission of the European Communities

In support of its claims, the applicant relies on the following
pleas:

(1) Infringement of Articles 87(1) and 88(3) EC and erroneous
reconstruction of the facts. In its decision the Commission
failed to consider that the contested measure adopted by the
Italian State did not constitute State aid since it did not
the measure
advantage.
confer an economic
extending the preferential electricity tariffs to be applied to
the companies in the proceedings, the assignee of Terni
SpA, was owing as a supplement
to the expropriation
compensation granted previously to Terni SpA on account
legal provisions adopted subsequently
of
involved a longer term in respect of the concession for the
production of the expropriated energy.

the fact

In fact

that

(2) Infringement of Articles 87 and 88(3) EC and erroneous
reconstruction of the facts. In its decision the Commission
failed to consider that the contested measure adopted by the
Italian State did not constitute State aid since the aid was
not granted through State resources. In fact the cost of the
measure is borne by the other users of the energy supply
service.

(3) Infringement of essential procedural requirements in relation
to absence of preliminary enquiries and infringement of the
rights of the defence. In its decision the Commission stated
that the results of an economic study to assess all the sacri-
fices imposed on Terni in consequence of the expropriation
and all the benefits obtained by that company by way of
compensation were irrelevant because the suitability of the
compensation mechanism can be assessed only ex ante,
namely, at the time of the expropriation. The study was
in accordance with previous Commission
carried out
in the
guidance. The Commission,
abstract a study requested by it previously was irrelevant,
should have carried out
further preliminary enquiries,
reopening the discussion concerning the methods of
carrying out the study.

taking the view that