Case T-305/08: Action brought on 11 August 2008 — Italian Republic v Commission
Date: 2008-08-11
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), fishing area, fishing industry, fishing rights, sea fish

25.10.2008

EN

Official Journal of the European Union

C 272/31

according to the applicant, the largest paper mill in the Euro-
pean Union. The applicant submits that although there were
clear indications that
the subsidised investment would have
serious and disproportionate effects on it and on the sector as a
whole, the Commission considered that no formal investigation
was necessary as the regional aid did not meet the market share
and capacity increase thresholds laid down in paragraph 68
under
the Guidelines on national aid for
2007-2013 (1) (‘The Regional Aid Guidelines’) and, consequently
declared the aid compatible with the Treaty.

(a) and (b) of

Finally, the applicants argue that the Commission infringed its
obligations in relation to the preliminary investigation to state
adequate reasons on which it based its decision.

(1) OJ 2006 C 54, p. 13.
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ 1999 L 83, p. 1).

The applicant, being a direct competitor of the aid beneficiary,
challenges the Commission's decision not to open the formal
procedure provided for in Article 88(2) EC on the basis of the
following grounds:

First, according to the applicant, the Commission should have
initiated the formal procedure under Article 88(2) EC and
Article 4(4) of Council Regulation No 659/1999 (2) and exam-
ined the aid more thoroughly in light of the doubts arising in
connection with the structural difficulties of the market and in
accordance with a more appropriate assessment of the market.
The applicant claims that the Commission mistakenly confined
itself to applying the rigid thresholds of paragraph 68 of the
Regional Aid Guidelines and made a manifest error of assess-
ment when calculating the capacity increase.

Action brought on 11 August 2008 — Italian Republic v
Commission

(Case T-305/08)

(2008/C 272/58)

Language of the case: Italian

the

effect of

conditions

aid on trading

Second, the applicant submits that the Commission infringed
Article 87(3) EC and the Regional Aid Guidelines in as much as
the contested decision (i) does not contain any analysis of the
adverse
and
(ii) misinterprets the Regional Aid Guidelines. On that basis, it is
submitted that, rather than balancing the benefits of the region
against the repercussions of substantial aid for the sector as a
whole, the Commission simply applied a per se 5 % capacity
increase test while refraining from an economic analysis. Also, it
is submitted that the application of the test laid down in para-
graph 68 of the Regional Aid Guidelines is contrary to the EC
Treaty since the said provision does not require the Commission
to automatically approve all aid measures that follow below the
thresholds set therein.

Parties

Applicant: Italian Republic (represented by: F. Arena, Avvocato
dello Stato)

Defendant: Commission of the European Communities

Third, according to the applicant,
the contested decision is
vitiated by errors of fact and manifest errors of assessment in
respect of market definition and capacity increase.

Form of order sought

it

is

submitted that

Fourth,
the Commission infringed
Article 87(3) EC and the Regional Aid Guidelines in so far as
the contested decision contains a manifest error of assessment
as to the qualification of the aid measure.

Fifth, the decision is also vitiated, allegedly, by serious errors of
law in so far as it considers the Regional aid Map 2007-2013 of
Germany to be compatible with the EC treaty, allowing the
Region Brandenburg-Nordost
to be eligible for regional aid
pursuant to the derogation laid down in Article 87(3)(a) EC for
the whole period of 2007-2013. In addition the contested deci-
sion is flawed since it ignores other aid concerning the same
project.

— Annul Article

1

of Commission Regulation

(EC)
No 530/2008 of 12 June 2008 establishing emergency
measures as regards purse seiners fishing for bluefin tuna in
the Atlantic Ocean, east of
longitude 48° W, and in the
Mediterranean Sea, published in Official Journal L 155 of
13 June 2008, in so far as it bans, as from 16 June 2008,
fishing for bluefin tuna in the Atlantic Ocean, east of longi-
tude 48° W, and in the Mediterranean Sea by vessels flying
the Italian flag and prohibits those vessels from retaining on
board, placing in cages for fattening or farming, tranship-
ping, transferring or landing bluefin tuna stock.

— Order the Commission to pay the costs.

C 272/32

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

Action brought on 5 August 2008 — Fitoussi v OHIM —
Loriot (IBIZA REPUBLIC)

The Italian Government challenges before the Court of First
Instance of the European Communities Article 1 of Commission
Regulation (EC) No 530/2008 of 12 June 2008, published in
Official Journal L 155 of 13 June 2008, which establishes emer-
gency measures as regards fishing for bluefin tuna by purse
seiners in the Atlantic Ocean, east of longitude 48° W, and in
the Mediterranean Sea.

(Case T-311/08)

(2008/C 272/59)

Language in which the application was lodged: French

The challenge is based on five grounds:

Parties

By its first ground,
the applicant submits that no adequate
reasons whatsoever are given for the contested regulation, in so
far as the statement that fishing opportunities for the Italian
fleet would be exhausted on 16 June 2008 is not supported any
argument other than a simple reference to a number of unspeci-
fied data in the Commission's possession and to the content
(equally unknown) of reports by its own inspectors.

the Commission adopted the

By its second ground, the applicant alleges misuse of power,
emergency
contending that
measure provided for in Article 7 of Council Regulation (EC)
No 2371/2002, not because the conditions set out in that
provision were satisfied but for the different purpose of taking
action in relation to an alleged failure on the part of
the
its obligations under
Member State to fulfil a number of
Council Regulation (EC) No 1559/2007.

The third ground alleges infringement of Articles 7 and 26 of
Regulation No 2371/2002 in so far as, according to the appli-
the facts as alleged by the Commission would have
cant,
permitted, at most, measures
to
Article 26 of that regulation (in compliance with the procedure
laid down in that provision) but not Article 7.

to be adopted pursuant

By its fourth ground, the applicant submits that the contested
measure is vitiated on account of a distortion of the facts in that
it is apparent from information forwarded by the Italian autho-
rities to the Commission that, even after the date on which the
contested regulation was adopted, the quantity of bluefin tuna
fished by vessels flying the Italian flag was less than 50 % of the
quota allocated, so that the alleged factual circumstances on
which the disputed measure is based (the fishing opportunities
for the Italian fishing fleet had been exhausted) have no basis.

By its fifth and final ground, the applicant complains of failure
to state the reasons for the alleged infringements of Regulation
No 1559/2007, which are also stated to have occurred in
general terms in the contested measure, without any indication
being given as to the precise nature of those infringements or
any evidence on the basis of which it is claimed that the appli-
cant Member State failed to fulfil its obligations under that regu-
lation.

Applicant: Paul Fitoussi (Vincennes, France) (represented by: K.
Manhaeve, T. van Innis and G. Glas, 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:
Bernadette Nicole J. Loriot (Ibiza, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 7 May
2008 in Case R 1135/2007-2;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bernadette Nicole J. Loriot

trade mark

‘IBIZA
concerned:
Community
REPUBLIC’ for goods in Classes 25, 41 and 43 — application
No 3 868 072

Figurative mark

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited in opposition: National figurative mark in the
form of a five-pointed star surrounded by a circle, for goods in
Class 25

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Council Regulation
No 40/94 in as much as i) the earlier mark consists of a repre-
sentation of a five-pointed star surrounded by a circle and not
only a star; ii) the earlier mark is an intrinsically strong mark
and not a mark with little distinctive character; and iii) the
graphic element of
the earlier mark dominates the word
element and not vice versa.