Case T-180/08 P: 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
Date: 2008-05-15
Institutions: Court of First Instance
Subjects: European Commission, European civil service, action for annulment (EU), indemnification, judicial proceedings

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;

C 171/46

EN

Official Journal of the European Union

5.7.2008

— failure to state the reasons for the contested order inasmuch
it is expressly states that the three claims of unlawfulness
complained of by the applicant with regard to the conduct
in fact, the unlawfulness of
of the Commission concern,
some acts;

legal remedies.

— misinterpretation of the case-law relating to the indepen-
dence of
the court at first
instance was wrong to hold that the principle of the inde-
pendence of remedies could have no effect in the present
case;

In particular,

— failure to state reasons for the application for compensation
for non-material damage. Regarding the many arguments
comprehensively set out by the applicant to show the link
between the non-material damage and the Commission's
conduct,
there is nothing in the contested order which
makes it possible to understand the reasons on the basis of
which those arguments were rejected.

Action brought on 16 May 2008 — Tay Za v Council

(Case T-181/08)

(2008/C 171/87)

Language of the case: English

No 2006/318/CFSP (2) requiring Member States to prevent the
applicant form entering into and transiting through their terri-
tories does allegedly not provide any reasons either for the
applicant's inclusion in the list, but simply includes him in a list
under a heading ‘Persons who benefit
from Government
Economic Policies’. Third, the applicant submits that the regu-
lation infringes his fundamental rights, since it allegedly inter-
feres in a disproportionate manner with his rights to peaceful
enjoyment of his property, to a fair hearing and to effective legal
protection. Fourth, according to the applicant the regulation
infringes the principle of proportionality.

(1) Council Regulation (EC) No 194/2008 of 25 February 2008
renewing and strengthening the restrictive measures in respect of
Burma/Myanmar and repealing Regulation (EC) No 817/2006
(OJ 2008 L 66, p. 1).

(2) Council Common Position No 2006/318/CFSP of 27 April 2006
renewing restrictive measures against Burma/Myanmar (OJ 2006
L 116, p. 77) extended until 30 April 2009 by Council Common
Position 2008/349/CFSP of 29 April 2008 (OJ 2008 L 116, p. 57).

Action brought on 16 May 2008 — Commission v Atlantic
Energy

(Case T-182/08)

(2008/C 171/88)

Language of the case: English

Parties

Applicant: Pye Phyo Tay Za (Yangoon, Myanmar) (represented by:
D. Anderson QC, M. Lester, Barrister and G. Martin, Solicitor)

Defendant: Council of the European Union

Parties

Form of order sought

— The annulment of Regulation 194/2008 of 25 February
2008, as a whole or in so far as it concerns the applicant;
and

— order that the Council pays the applicant's costs for this

action.

Pleas in law and main arguments

applicant

The
No 194/2008 (1) in so far as it applies to him for four reasons:

annulment

Regulation

seeks

of

(EC)

First, the applicant contends that the regulation has no proper
legal basis. He submits to this end that neither Article 60 EC
nor Article 301 EC gives the Council the power to freeze the
entirety of a person's funds who is not connected with the mili-
tary regime of Burma/Myanmar. Second, the applicant claims
that the regulation infringes the obligation to state reasons on
the basis of Article 253 EC. Namely, the applicant claims that
the regulation does not provide any reasons why the applicant
has been included in Part J of Annex VI of the said regulation
government
which lists members of
and
the Common Position
people

associated with it. Also,

the Burmese

Applicant: Commission of the European Communities (repre-
sented by: A.-M. Rouchaud-Joët, S. Lejeune, Agents, and M.
Jarvis, Barrister)

Defendant: Atlantic Energy Ltd (Truro, United Kingdom)

Form of order sought

the

being

amount

principal

— to order the defendant to pay the Commission the sum of
EUR 383 081,19
of
EUR 226 010,00 together with EUR 76 233,61 as late
payment interest calculated at the ECB rate + 2 % on the
principal amount for the period between 1 June 1996 and
28 February 2002 and EUR 84 448,11 as late payment
interest calculated on the principal amount plus interest to
28 February 2002 at the ECB rate + 1,5 % for the period
between 16 July 2002 and 31 May 2008 less an off set in
the sum of EUR 3 610,53;

— to order the defendant to pay EUR 39,33 per day by way of
interest from 31 May 2008 until the date on which the debt
is repaid in full; and

— to order the defendant

to pay the costs of

the present

proceedings.