Case T-189/08: Action brought on 22 May 2008 — Forum 187 v Commission
Date: 2008-05-22
Institutions: Court of First Instance
Subjects: Belgium, European Commission, State aid, action for annulment (EU), aid system, control of State aid, infringement of EU law

C 183/26

EN

Official Journal of the European Union

19.7.2008

Form of order sought

Decision of implied rejection

— Annulment of the decision of the European Commission of
28 February 2008 (referred to in letter of 3 April 2008 sent
by the Commission to the Liga para a Protecção da natureza
(LPN)) whereby the Commission closed the file on the
complaint No 2003/4523 relating to the construction of the
Baixo Sabor dam, in so far as that decision wrongly presup-
poses compliance with the procedural formalities essential
for the exercise of LPN's rights to participate in the adminis-
trative procedure relating to the ‘Baixa Sabor Dam’ project,
initiated with complaint No 2003/4523 addressed to the
European Commission;

— Annulment also of the decision whereby the Secretariat-
General of the Commission tacitly rejected the confirmatory
application submitted by LPN on 19 February 2008 under
Article 8 of Regulation No 1049/2001 (1)

regard

1367/2006 (2)

to Regulations No

Having
and
No 1049/2001, which confirm unequivocally the right of access
to ‘internal rules’ based on which the right to submit preli-
minary comments is granted, the silence — first of the Commis-
sion, then of the Secretariat General on the confirmatory appli-
cation — is inexplicable and flatly contravenes the right of
access to documents and information laid down by those regu-
lations.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, p. 43).
(2) Regulation (EC) No 1367/2006 of the European Parliament and of
the Council of 6 September 2006 on the application of the provi-
sions of the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environ-
mental Matters to Community institutions and bodies (OJ L 264,
p. 13).

— Order payment

to LPN of

token compensation for the
infringement of LPN's
the
Commission would act fairly and would comply with proce-
dural rules;

legitimate expectations

that

— Request of the Commission, under Article 64 et seq. of the
Rules of Procedure, that it submit to the Court the said deci-
sion to close the file of 28 February 2008, which has been
neither notified to the applicant nor published;

— Order the Commission to pay the costs.

Action brought on 22 May 2008 — Forum 187 v
Commission

(Case T-189/08)

(2008/C 183/50)

Language of the case: English

Pleas in law and main arguments

Decision to close the file

The decision to close the file is invalid since it is based on a
clear infringement of the right to present preliminary comments
which the Commission itself granted to LPN.

Applicant: Forum 187 ASBL (Brussels, Belgium) (represented by:
A. Sutton, G. Forwood, Barristers)

Parties

The Commission has refused access to any material in the file
which would have enabled LPN to exercise its right to submit
preliminary comments, and has not specified the ‘internal rules’
(which it claims exist) on the basis of which that right was
granted by it.

Defendant: Commission of the European communities

Form of order sought

There has also been an infringement of the fundamental princi-
ples of good faith, fairness, transparency and proper administra-
tion, since the comments cannot even have been analysed
before adoption of the final decision to close the file (clearly
less than 24 hours elapsed
demonstrated by the fact
between the sending of the preliminary comments — 40 pages
in Portuguese, with fresh facts and arguments — and the deci-
sion to close the file).

that

— annul the contested decision insofar as it does not provide
reasonable prospective transitional periods for the coordina-
tion centres covered by the judgment of the Court of Justice
of 22 June 2006;

— order the Commission to pay costs of this case and

— take such other or further steps as justice may require.

19.7.2008

EN

Official Journal of the European Union

C 183/27

Pleas in law and main arguments

Action brought on 22 May 2008 — JOOP! v OHIM

in

Belgium,

established

In the present case, the applicant seeks the annulment of the
Commission Decision 2008/283/EC of 13 November 2007 on
the aid scheme implemented by Belgium for coordination
Decision
centres
2003/757/EC (1) following the partial annulment of that first
decision by the Court of Justice (2). In that ruling, the ECJ held
that the 2003 decision did not provide transitional measures for
those coordination centres with an application for renewal of
their authorisation pending on the date on which the contested
decision was notified, or with an authorisation which expired at
the same time as or shortly after the notification of that deci-
sion.

amending

(Case T-191/08)

(2008/C 183/51)

Language in which the application was lodged: German

Parties

The contested decision creates transitional periods for the cate-
gory of centres covered by the Court's ruling.

Applicants: JOOP! GmbH (Hamburg, Germany) (represented by:
H. Schmidt-Hollburg, W. Möllering, A. Löhde, H. Leo, A. Witte,
T. Frank, A. Theil, H.-P. Rühland, B. Willers and T. Rein)

The applicant states in support of
contested decision:

its contentions that

the

— is incompatible with Community law on existing aids, as

consistently interpreted by the European Courts;

— denies the centres their legitimate expectations to benefit
from a reasonable period after the Commission's final deci-
sion closing the existing aid procedure (notified to the appli-
cant on 17 March 2008), to re-arrange their business and
fiscal affairs;

— infringes Article 254(3) EC;

— by providing for the retroactive levying and payment taxes
in an existing aid case, in effect orders the recovery of the
aid as if it was illegal aid and this fails to respect the prin-
ciple that existing aids schemes should only be changed
prospectively, at a date after the final Commission decision
closing the existing aid procedure;

— fails to respect the legitimate expectations of coordination
centres which relied on the order of the President of the
Court of Justice of 26 June 2003 (3) as a legal basis upon
which they could obtain the renewal of authorisations;

— infringes the principles of equal treatment and non-discrimi-
nation by providing different treatment without objective
justification for different groups of centres.

(1) OJ 2008 L 90, p. 7.
(2) Joined Cases C-182/03 and C-217/03, Belgium and Forum 187 v

(3) Joined Cases C-182/03 R and C-217/03 R, Belgium and Forum 187 v

Commission, [2006] ECR I-5479].

Commission, [2003] ECR I-6887].

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

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market of 6 March
2008 in Case R 1822/2007-1;

— Order the Office for Harmonisation in the Internal Market
to pay the costs including those incurred during the appeal
proceedings.

Pleas in law and main arguments

Community trade mark concerned: figurative mark representing an
exclamation mark, for goods in Classes 14, 18 and 25 (Appli-
cation No 5 332 176).

Decision of the Examiner: Rejection of the registration.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), as the mark applied for has distinctive char-
acter and its availability does not have to be preserved.

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

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