Case T-177/08: Action brought on 13 May 2008 — Schräder v CPVO — Hansson (Sumost 01)
Date: 2008-05-13
Institutions: Court of First Instance
Subjects: Community Plant Variety Office, action for annulment (EU), citrus fruit, designation of origin, plant variety right

5.7.2008

EN

Official Journal of the European Union

C 171/45

Action brought on 13 May 2008 — Schräder v CPVO —
Hansson (Sumost 01)

(Case T-177/08)

(2008/C 171/85)

Language in which the application was lodged: German

— Infringement of Article 62 of Regulation No 2100/94 by
reason of an insufficient and flawed assessment of the facts
as regards distinctiveness;

— Infringement of Article 48 of Regulation No 2100/94 on
account of alleged partiality on the part of one of
the
members of the Board of Appeal.

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented
by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office

Other party to the proceedings before the Board of Appeal:
Hansson (Søndersø, Denmark)

Jørn

Form of order sought

— Annul

the decision of

the
Community Plant Variety Office of 4 December 2007
(Ref. A 005/2007);

the Board of Appeal of

(1) Commission Regulation (EC) No 1239/95 of 31 May 1995 estab-
lishing implementing rules for the application of Council Regulation
(EC) No 2100/94 as regards proceedings before the Community
Plant Variety Office (OJ 1995 L 121, p. 37).

(2) Council Regulation (EC) No 2100/94 of 27 July 1994 on Com-

munity plant variety rights (OJ 1994 L 227, p. 1).

Appeal brought on 15 May 2008 by Giuseppe Tiralongo
against the order of the Civil Service Tribunal delivered on
6 March 2008 in Case F-55/07, Tiralongo v Commission

(Case T-180/08 P)

(2008/C 171/86)

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

Language of the case: Italian

Pleas in law and main arguments

Applicant for Community plant variety rights: Ralf Schräder.

Parties

Community plant variety right at issue: ‘Sumost 01’ (Variety appli-
cation No 2001/1758).

Appellant: Giuseppe Tiralongo (Ladispoli, Italy) (represented by F.
Sciaudone, lawyer, R. Sciaudone, lawyer, and S. Frazzani, lawyer)

Proprietor of
Hansson.

the opposing Community plant variety right:

Jørn

Opposing Community plant variety right: ‘Lemon Symphony’.

Decision of
the Community Plant Variety Office, appealed against
before the Board of Appeal: Rejection of the application for Com-
munity plant variety rights.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law:

— Infringement

of Article
in that

59(2)
(EC)
of Regulation
the applicant was not duly

No 1239/95 (1),
summoned to the oral proceedings;

— Infringement

of Article

(EC)
No 2100/94 (2), in that the appealed decision was based on
grounds and evidence on which the applicant had no oppor-
tunity to present his comments;

Regulation

75

of

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— annul

the contested order of 6 March 2008 in Case
F-55/07, and refer the case back to the Civil Service Tribunal
for it to rule on the substance of the case in the light of the
guidance which the Court of First
to
provide;

Instance sees fit

— order the Commission to pay the costs of

the present

proceedings and those of Case F-55/07.

Pleas in law and main arguments

— Infringement of Article 81(2) and Article 48 of Regulation
No 2100/94 on account of
the alleged partiality of an
employee of the defendant, whose evidence was relied on in
the decision;

— Infringement of Article 60 of Regulation No 1239/95, in
that no formal decision was issued concerning hearing the
oral evidence of an employee of the defendant;

In support of its forms of order sought, the applicant claims:

— misapplication of the case law relating to the independence
of legal remedies. In particular, the court of first instance
misapplied the principles of case-law referring to compensa-
tion for damage caused by unlawful acts to a case in which,
on the other hand,
the harm was caused by unlawful
conduct;