Case T-71/08: Action brought on 13 February 2008 — Promat v OHIM — Prosima Comercial (PROSIMA PROSIMA COMERCIAL S.A.)
Date: 2008-02-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), machinery, preparation for market, trade-mark law

C 92/42

EN

Official Journal of the European Union

12.4.2008

the

applicant

the Commission infringed
Finally,
alleges
Article 21(4) of Regulation No 139/2004 given that
the
Spanish authorities were not obliged to communicate the condi-
tions imposed on the public bid for the purchase of Endesa, by
Enel and Acciona, to the Commission, since those conditions
sought to protect a legitimate interest, namely public security.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
control of concentrations between undertakings (the EC Merger
Regulation) (OJ 2004 L 24, p. 1).

Action brought on 12 February 2008 — Poland v
Commission

(Case T-69/08)

(2008/C 92/83)

Language of the case: Polish

contested decision, and that alone, which is decisive in this
regard.

The applicant therefore puts forward the following pleas in
support of its application:

— breach

of Article 95(6)

EC,

in

conjunction with

Article 254(3) EC;

— breach of an essential procedural requirement consisting in
the obligation to notify a decision to those to whom it is
addressed within the period laid down by law and thus to
enable them to become aware of the decision's content;

— breach of the principle of legal certainty.

(1) OJ 2008 L 16, p. 17.
(2) Directive 2001/18/EC of

the
Council of 12 March 2001 on the deliberate release into the environ-
ment of genetically modified organisms and repealing Council Direc-
tive 90/220/EEC (OJ 2001 L 106, p. 1).

the European Parliament and of

Parties

Applicant: Republic of Poland (represented by: M. Dowgielewicz,
acting as Agent)

Action brought on 13 February 2008 — Promat v OHIM
— Prosima Comercial (PROSIMA PROSIMA COMERCIAL
S.A.)

(Case T-71/08)

(2008/C 92/84)

Defendant: Commission of the European Communities

Language in which the application was lodged: German

Form of order sought

Parties

— annul Commission Decision 2008/62/EC of 12 October
2007 relating to Articles 111 and 172 of the Polish Draft
Act on Genetically Modified Organisms, notified by the
Republic of Poland pursuant
the
EC Treaty as derogations from the provisions of Directive
2001/18/EC of the European Parliament and of the Council
on the deliberate release into the environment of genetically
modified organisms
(decision notified under document
number C(2007) 4697) (1);

to Article 95(5) of

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
2008/62/EC of 12 October 2007 which rejects proposed
national provisions laying down a derogation from Directive
2001/18/EC (2) that were notified by the Republic of Poland
pursuant to Article 95(5) EC. The applicant states that it was
the contested decision on
notified by the Commission of
4 December 2007, that is to say after expiry of the six-month
period laid down in Article 95(6) EC, meaning that, in accord-
ance with that article, those provisions should be considered to
have been approved upon expiry of the six-month period.

The applicant submits that
the decision was
adopted on 12 October 2007 is immaterial as regards obser-
it is the date of notification of the
vance of that time-limit;

the fact

that

Applicant: Promat GmbH (Ratingen, Germany) (represented by:
S. Beckmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Prosima Comercial SA (Barcelona, Spain)

Form of order sought

— annul the decision of the Office for Harmonisation in the

Internal Market in Case R 574/2007-2;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Prosima Comercial SA

Community trade mark concerned: Figurative mark PROSIMA
PROSIMA COMERCIAL S.A. for goods and services in Classes 6,
7, 11, 16, 17, 20, 22, 35 to 39, 41 and 42 (Application
No 2 423 176)

Proprietor of the mark or sign cited in the opposition proceedings:
Promat GmbH

12.4.2008

EN

Official Journal of the European Union

C 92/43

Mark or sign cited in opposition: Word mark PROMINA for goods
and services in Class 7 (German trade mark No 847 011)

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) as the Office for Harmonisation in the Internal
Market was incorrect to take as a basis that the goods were not
similar.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11, 14.1.1994, p. 1).

Action brought on 6 February 2008 — Now Pharma v
Commission

(Case T-74/08)

(2008/C 92/85)

Language of the case: German

Parties

Applicant: Now Pharma AG (Luxembourg, Luxembourg) (repre-
sented by: C. Kaletta and I.J. Tegebauer, Rechtsanwälte)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

— annul Commission Decision C(2007) 6132 of 4 December

2007;

— hold that the Commission should take a new decision in
relation to the applicant's application of 6 February 2007,
taking into consideration the Court's view of the law;

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

Pleas in law and main arguments

applicant

challenges

the Commission's Decision of
The
4 December 2007 refusing the applicant's request for designa-
tion of the medicinal product ‘Extrait liquide spécial de Cheli-
donii
liquid extract’) as an
radix special
orphan medicinal product within the meaning of Regulation
(EC) No 141/2000 (1).

(‘Chelidonii

radix’

decision

In support of its application, the applicant submits that the
contested
Regulation
infringes Article
No 141/2000. In this respect, the applicant submits, in particu-
lar, that the final negative opinion of the European Medicines
Agency was based on a wrong standard, namely the require-
ments for marketing authorisation in respect of a medicinal

of

3

product pursuant to Article 8(3)(c) of Regulation No 141/2000.
However, according to the applicant, whether a medicinal
product is to be designated as an orphan medicinal product
depends on whether the medicinal product will be of significant
benefit to those affected by the particular condition, within the
meaning of Article 3(2) of Regulation (EC) No 847/2000 (2).
According to the applicant, the requirements of Article 3(1)(b)
of Regulation No 141/2000 are fulfilled, because the medicinal
product constitutes an orphan medicinal product and will be of
significant benefit.

In addition, the applicant takes issue with the lack of qualifica-
tions and the bias of the expert.

(1) Regulation (EC) No 141/2000 of the European Parliament and of the
Council of 16 December 1999 on orphan medicinal products
(OJ 2000 L 18, p. 1).

(2) Commission Regulation (EC) No 847/2000 of 27 April 2000 laying
down the provisions for implementation of the criteria for designa-
tion of a medicinal product as an orphan medicinal product and
definitions of the concepts similar medicinal product and clinical
superiority (OJ 2000 L 103, p. 5).

Action brought on 22 February 2008 — Centre de
coordination Carrefour v Commission

(Case T-94/08)

(2008/C 92/86)

Language of the case: French

Parties

Applicant: Centre de coordination Carrefour SNC (Brussels,
Belgium) (represented by: X. Clarebout and K. Platteau, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision in as much as it does not lay
down a transitional period as required by the Forum 187 (1)
judgment;

— order the Commission to pay the costs.

Pleas in law and main arguments

By decision 2003/755/EC of 17 February 2003, the Commis-
sion and declared the aid scheme implemented by Belgium in
favour of coordination centres established in Belgium incompa-
tible with the internal market (2). That decision was annulled by
judgment of the Court of 22 June 2006 (3) (‘the judgment in
Belgium and Forum 187 v Commission’) in that it did not provide
the
transitional measures with regard to certain of
for