Case T-45/08: Action brought on 29 January 2008 — Transportes Evaristo Molina v Commission
Date: 2008-01-29
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, distributive trades, motor fuel

C 92/36

EN

Official Journal of the European Union

12.4.2008

(b) the general principles of legal certainty and the protec-
tion of legitimate expectations and of equality of treat-
ment.

(2) the general principles of legal certainty and the protection
of legitimate expectations and of equality of treatment.

(1) Council Regulation (EC) No 2792/1999 of 17 December 1999
laying down the detailed rules and arrangements regarding Com-
munity structural assistance in the fisheries sector (OJ L 337, p. 10).
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ L 83, p. 1).

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ L 83, p. 1).

Action brought on 24 January 2008 — Shetland Islands
Council v Commission

(Case T-43/08)

(2008/C 92/72)

Language of the case: English

Parties

Shetland

Applicant:
by:
E. Whiteford, Barrister, R. Murray, Solicitor and R. Thompson
QC)

(represented

Council

Islands

Action brought on 29 January 2008 — Transportes
Evaristo Molina v Commission

(Case T-45/08)

(2008/C 92/73)

Language of the case: Spanish

Parties

Applicant: Transportes Evaristo Molina S.A.
Águila, Spain)
Ezquerra and M.C. Flores Hernández, lawyers)

(Santa María del
(represented by: A. Hernández Pardo, L. Ruiz

Defendant: Commission of the European Communities

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annulment of Articles 3, 4 and 5 of the decision; and

— the costs of this application.

Pleas in law and main arguments

The applicant is a public authority that made payments to the
fisheries sector under the scope of two general aid measures,
named ‘Aid to Fish Catching and Processing Industry’ and ‘Aid
to the Fish Farming Industry’ consisting of different types of aid
schemes. The Commission found that the aid which the United
Kingdom implemented on the basis of
the ‘Fish Factory
Improvement Scheme’ was incompatible with the common
market, in so far as it concerned the amount of GBP 92 007,
granted on 13 August 1997, 7 January 1999, 25 February
1999, 10 December 1999, 19 January 2001 and 15 December
2004.

By means of its application, the applicant seeks partial annul-
ment pursuant
to Article 230 EC of Commission Decision
C 38/2006 (ex NN 93/2005) of 13 November 2007 concerning
the ‘Fish Factory Improvement Scheme’
implemented in the
United Kingdom. In particular, the applicant seeks annulment of
Articles 3, 4 and 5 of the contested decision on the ground that
the Commission erred in finding that recovery of payments
would be compatible with:

(1) Article 14(1) of Council Regulation (EC) No 659/1999 (1);

and

— annul Commission Decision of 12 April 2006 relating to a
Treaty

under Article

proceeding
81
COMP/B-1/38.348 Repsol CPP, and

the

EC

of

— order the Commission to pay the costs.

Pleas in law and main arguments

This application was brought against
the
Commission of 12 April 2006 because it accepted the commit-
ments proposed by REPSOL CPP in accordance with the provi-
sions of Article 9(1) of Regulation (EC) 1/2003 (1).

the decision of

That decision concerns the procedure initiated following the
request by REPSOL CPP for negative clearance or, failing that, an
individual exemption with respect to the standard agreements
and/or contracts by means of which it carried out its fuel distri-
bution activities for motor vehicles through service stations in
Spain.

In the offer of commitments accepted by the Commission,
to increase the annual
REPSOL CPP undertook,
inter alia,
number of service stations which may change supplier,
for
which it undertook to offer the bare owners/operators of the
service stations the possibility of recovery of the right in rem to
the usufruct or over the buildings subject, however, to compli-
ance with a series of conditions by the operator.

12.4.2008

EN

Official Journal of the European Union

C 92/37

The applicant, the owner-operator of a service station which
had concluded a supply contract with REPSOL CPP claims that
since 19 November 2007, the date on which it received notifica-
tion from the monitoring trustee of its inclusion in Annex I of
REPSOL CPP's commitments, the contested decision directly and
individually concerns it.

In support of its claims, the applicant complains, first of all, that
the Commission infringed Article 9 of Regulation 1/2003. In
particular, the applicant claims that the Commission, although
aware of the correct interpretation of the competition rules
relating to time limits, accepted the commitments proposed by
REPSOL CPP, going beyond and infringing the aim of Article 9
of Regulation 1/2003. In addition, the applicant claims in that
context that the contested decision infringes Article 9 of Regu-
lation 1/2003 and the principle of proportionality since the
commitments accepted by the Commission were not effective to
give an appropriate response to the concerns expressed by the
applicant.

Second, the applicant relies on infringement of the principle
according to which persons subject to Community law may not
benefit
from their own unlawful acts or become enriched
without just cause.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

— order OHIM and the intervening party, Antonio Fusco Inter-
national SA, to pay the costs of the present proceedings and
those of the proceedings before the Board of Appeal and the
Opposition Division.

Pleas in law and main arguments

Applicant for a Community trade mark: Antonio Fusco Interna-
tional SA, Luxembourg (Lugano branch)

Community trade mark concerned: Figurative mark FUSCOLLEC-
TION (application for registration No 1.503.366) in respect of
goods in Classes 9, 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or
sign cited in opposition: Community trade mark
(No 727.375) and Italian trade mark (No 489.262) ENZO
FUSCO in respect of goods in Class 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:
No 40/94 on the Community trade mark

Infringement of Art 8(1)(b) of Regulation (EC)

Action brought on 28 January 2008 — Fusco v OHIM —
Fusco International (FUSCOLLECTION)

(Case T-48/08)

(2008/C 92/74)

Language in which the application was lodged: Italian

Parties

Appeal brought on 5 February 2008 by Commission of the
European Communities against the judgment of the Civil
Service Tribunal delivered on 22 November 2007 in Case
F-109/06, Dittert v Commission

(Case T-51/08 P)

(2008/C 92/75)

Language of the case: French

Applicant: Vincenzo Fusco (represented by: B. Saguatti, lawyer)

Parties

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

Other party to the proceedings before the Board of Appeal of OHIM:
Antonio Fusco International SA, Luxembourg (Lugano branch)
(Lugano, Switzerland)

Appellant: Commission of the European Communities (repre-
sented by G. Berscheid and K. Herrmann, acting as Agents)

Other party to the proceedings: Daniel Dittert (Luxembourg, Grand
Duchy of Luxembourg)

Form of order sought

Form of order sought by the appellant

— annul

the decision of

the Second Board of Appeal of
24 October 2007 and amend it to the effect that the action
brought by the applicant before the Board of Appeal should
be considered to be well founded and, consequently, the
opposition should be upheld;

— Annul

the judgment of

the Civil Service Tribunal of
22 November 2007 in Case F-109/06 Dittert v Commission
and refer the case back to the Civil Service Tribunal;

— order the respondent to pay the costs.