Case T-342/08: Action brought on 18 August 2008 — Batchelor v Commission
Date: 2008-08-18
Institutions: Court of First Instance
Subjects: Belgium, European Commission, access to information, action for annulment (EU), broadcasting, document

25.10.2008

EN

Official Journal of the European Union

C 272/41

Action brought on 19 August 2008 — Hess Group v
OHIM — Coloma Navarro (COLOMÉ)

Action brought on 18 August 2008 — Batchelor v
Commission

(Case T-341/08)

(2008/C 272/81)

Language in which the application was lodged: Spanish

(Case T-342/08)

(2008/C 272/82)

Language of the case: English

Parties

Parties

Applicant: Hess Group AG (Berna, Switzerland) (represented by:
E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

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

Applicant: Edward William Batchelor (Brussels, Belgium) (repre-
sented by: F. Young, Solicitor, A. Barav, Barrister and D.
Reymond, lawyer)

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal of OHIM:
José Félix Coloma Navarro (Badajoz, Spain)

Form of order sought

Form of order sought

— Declare the action against the Decision of the First Board of
Appeal of OHIM of 21 May 2008 lodged in time and in the
required form and, via the appropriate procedure, order the
annulment of that decision and order expressly that OHIM
pay the costs.

Pleas in law and main arguments

— Annul the implied negative decision deemed, pursuant to
Article 8(3) of the Access Regulation, to have been made by
the European Commission on 11 June 2008, the express
negative decision SG/E/3/HP/cr D(2008)5545, made by the
Commission on 3 July 2008, and the express negative deci-
sion SG/E/3/EV/psi D(2008)6636, made by the Commission
on 7 August 2008, relating to a request for access to docu-
ments presented pursuant to Regulation (EC) No 1049/2001
of the European Parliament and the Council of 30 May
2001 regarding public access
to European Parliament,
Council and Commission documents (OJ 2001 L 145,
p. 43);

— Order the Commission to pay its own costs and the appli-

cant's costs in relation to these proceedings.

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘COLOMÉ’ for goods in
Class 33 (wines) (Application for Registration No 2.140.283).

Pleas in law and main arguments

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of
Navarro.

invalidity: D. José Félix Coloma

Trade mark right of applicant for the declaration: Spanish figurative
marks ‘COLOMA’ for goods in Class 33 (wines).

Decision of the Cancellation Division: Application for declaration
of invalidity upheld.

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

in law: Breach of Article 8(1)(b) of Regulation (EC)

Pleas
No 40/94 on the Community trade mark.

This application for annulment, pursuant to Article 230(4), is
brought against the Commission's implied negative decision of
11 June 2008 and express negative decisions, SG/E/3/HP/cr
D(2008)5545 of 3 July 2008 and SG/E/3/EV/psi D(2008)6636
to Regulation (EC)
of 7 August 2008, made pursuant
No 1049/2001 (1)
(‘the Access Regulation’) by which the
Commission rejected the applicant's request for access to docu-
ments the Commission sent to, and received from, the Belgian
authorities, relating to the notification of measures taken under
Article 3a(1) of Council Directive 89/552/EEC on the coordina-
tion of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit
of television broadcasting activities (2), as amended by Directive
97/36/EC of the European Parliament and of the Council of
30 June 1997 (3).

The applicant claims that the Commission's failure to provide
adequate and sufficient reasons for denying access to the docu-
ments requested, amounts to a violation of Article 253 EC and
Article 8(1) of the Access Regulation and that, consequently, the
contested decision is vitiated by an infringement of an essential
procedural requirement, as envisaged in Article 230(2) EC.

C 272/42

EN

Official Journal of the European Union

25.10.2008

The applicant further submits that, in wrongly relying on the
permissible exceptions for denying access to the documents
requested, the Commission has violated Article 255 EC and
Articles 1(a), 2(1) and (3), 4(1) to (6) of the Access Regulation
and that, consequently, the contested decision is vitiated by an
infringement of the Treaty and of any rule of law relating to its
application, as envisaged in Article 230(2) EC.

(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 2001 L 145,
p. 43).

(2) OJ 1989 L 298, p. 23.
(3) OJ 1997 L 202, p. 60.

No 1049/2001 (1), since the exceptions laid down in those
provisions were misinterpreted or misapplied. Further, the appli-
cant claims that the Commission infringed the last clause of
Article 4(2) of Regulation No 1049/2001, since it wrongly
denied that the applicant has an overriding public interest in
access to the file in Case COMP/F/38.899. Finally, the applicant
submits that there was an infringement of Article 4(6) of Regu-
lation No 1049/2001, since the applicant ought to have been
allowed to consult at least part of the documentation included
in the file in Case COMP/F/38.899.

(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 2001 L 145,
p. 43).

Action brought on 25 August 2008 — EnBW Energie
Baden-Württemberg v Commission

(Case T-344/08)

(2008/C 272/83)

Language of the case: German

Action brought on 22 August 2008 — Helena Rubinstein v
OHIM — Allergan (BOTOLIST)

(Case T-345/08)

(2008/C 272/84)

Language in which the application was lodged: English

Parties

Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe,
Germany) (represented by: A. Bach and A. Hahn, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant: Helena Rubinstein, SNC (Paris, France)
by: A. von Mühlendahl and J. Pagenberg, lawyers)

(represented

Form of order sought

— Annul Commission Decision D(2008) 4931 of 16 June
2008 concerning a request for access to the administrative
files in Case COMP/F/38.899 (Gas insulated switchgear);

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

Other party to the proceedings before the Board of Appeal: Allergan,
Inc. (Irvine, United States)

— in

the

alternative,

Commission

Decision
annul
D(2008) 4931 of 16 June 2008 concerning a request for
access to the administrative files in Case COMP/F/38.899
(Gas insulated switchgear) in so far as the Commission also
refused the applicant partial access to the documents on the
file;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant objects to the Commission's decision of 16 June
2008 rejecting the applicant's second request for access to docu-
ments on the Commission's file in Case COMP/F/38.899 — Gas
insulated switchgear.

The applicant advances three pleas in support of its application.

First of all, the applicant alleges an infringement of the first
and third indents of Article 4(2) of Regulation (EC)

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 28 May 2008 in case R 863/2007-1;

— Dismiss the appeal filed by the other party to the proceed-
ings before the Board of Appeal against the decision of the
Cancellation Division of the defendant taken on 28 March
2007 in case 1118 C;

— Order the defendant to pay the costs of the proceedings,
including those incurred by the applicant before the Board
of Appeal; and

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings,
including
those incurred by the applicant before the Board of Appeal,
should it become an intervening party in this case.