Case T-182/08: Action brought on 16 May 2008 — Commission v Atlantic Energy
Date: 2008-05-16
Institutions: Court of First Instance
Subjects: EU financing, European Commission, appeal, electrical energy, energy industry, energy production, redemption, termination of a contract

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.

5.7.2008

EN

Official Journal of the European Union

C 171/47

Pleas in law and main arguments

Pleas in law and main arguments

On 29 March 1996 the European Community, represented by
the Commission, entered into a contract BU 183/95 UK/AT
with Sidney C. Banks Plc and Jenbacher Energiesysteme AG for
the implementation of the project ‘Advanced automated gasifier
with CHP using waste wood as fuel’ under the Community
activities in the field of non-nuclear energy (1). Pursuant to the
contract provision, the Commission made an advance payment
of its contribution for the project to the designated contract
coordinator, Sydney C. Banks Plc.

By fax dated 25 September 1996, Sidney C. Banks Plc informed
it had decided to withdraw from the
the Commission that
project. On 17 April 1998 the European Community, repre-
sented by the Commission, entered into Addendum No 1 to the
contract by which Atlantic Energy Ltd replaced Sidney C. Banks
Plc as a party to, and coordinator under the contract.

Pursuant to clause 2 of the Addendum Sidney C. Banks Plc
transferred the advance payment received from the Commission
(plus interest) to Atlantic Energy Ltd in April 1998.

The Commission claims an order that Atlantic Energy Ltd repay
the advance payment plus interest on the grounds either that
the project never effectively commenced or, if it did, was termi-
nated by the Commission.

Applicant for a Community trade mark: Leder & Schuh AG.

Community trade mark concerned: The word and figurative mark
‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21,
24-26 and 28 (Application No 1 269 372).

Proprietor of the mark or sign cited in the opposition proceedings:
Schuhpark Fascies GmbH.

Mark or sign cited in opposition: The German word mark ‘Schuh-
park’ for goods in Class 25 (No 1 007 149), in respect of oppo-
sition to the registration for goods in Classes 18, 21, 25 and 26.

Decision of the Opposition Division: Opposition upheld in part
and application rejected in part.

Decision of the Board of Appeal: Annulment of the appealed deci-
sion and rejection of the opposition.

Pleas in law: Infringement of the second sentence of Article 43(2)
and Article 43(3) of Regulation (EC) No 40/94 (1) and breach of
the
second sentence of Rule 22(2) of Regulation (EC)
No 2868/95 (2) in that the applicant has sufficiently proved that
the opposition mark has been used in a manner which preserves
its rights.

(1) Council Decision 94/806/EC of 23 November 1994 adopting a
specific programme for research and technological development,
including demonstration, in the field of non-nuclear energy (1994 to
1998) (OJ L 334, 22.12.1994, p. 87).

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

Community trade mark (OJ 1994 L 11, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Action brought on 16 May 2008 — Schuhpark Fascies v
OHIM — Leder & Schuh (jello SCHUHPARK)

Action brought on 13 May 2008 — Rodd & Gunn
Australia v OHIM (Representation of a dog)

(Case T-183/08)

(2008/C 171/89)

(Case T-187/08)

(2008/C 171/90)

Language in which the application was lodged: German

Language in which the application was lodged: English

Parties

Applicant: Schuhpark Fascies GmbH (Warendorf, Germany)
(represented by: A. Peter and J. Braune, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Leder & Schuh AG (Graz, Austria)

Parties

Applicant: Rodd & Gunn Australia Limited (Wellington, New
Zealand) (represented by: B. Brandreth, Barrister and N. Jenkins,
Solicitor)

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

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 13 March 2008 in appeal proceed-
ings R 1560/2006-4;

— Order the defendant to pay the costs incurred by the appli-

cant.

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 12 March 2008 in case R 1245/2007-4;

— order restitutio in integrum in respect of Community trade

mark No 339 218; and

— order OHIM to pay the costs.