Case T-360/08: Action brought on 3 September 2008 — Spain v Commission
Date: 2008-09-03
Institutions: Court of First Instance
Subjects: Cohesion Fund, European Commission, Spain, Structural Funds, action for annulment (EU), award of contract, co-financing, hydrology

C 272/46

EN

Official Journal of the European Union

25.10.2008

Form of order sought

The 2007 Guidelines also infringe:

— disapply the Guidelines for

the assessment of

financial
corrections to be applied to expenditure co-financed by the
Structural Funds and the Cohesion Fund in cases of non-
compliance with the rules on public contracts, final version
of 29 November 2007 COCOF 07/0037/03-ES;

— annul Commission Decision C(2008) 3243 of 25 June 2008
reducing the assistance from the Cohesion Fund to the
group of projects No 2001.ES.16.C.P.E.045 (Waste Manage-
ment in Galicia — 2001) (Group II); and

— order the Commission of the European Communities to pay

the costs.

Pleas in law and main arguments

This dispute concerns four sub-groups of projects relating to the
Solid Urban Waste Management Plan for Galicia. The Com-
munity financing initially granted for
the whole group of
projects was 80 % of the costs eligible for public funding.

sent by the Commission to the applicant

In a letter
in
April 2006, the Commission proposed corrections in respect of
irregularities discovered in an earlier audit. In the concluding
part of that document contained two proposals for financial
corrections. The first, relating to an irregularity penalised by the
decision concerned arises from a difference in the criteria for
classifying certain contracts. The proposed financial correction
with respect to that ground is EUR 59 652,48.

The entry into force at the end of 2007 of the new ‘Guidelines
for the assessment of financial corrections to be applied to
expenditure co-financed by the Structural Funds and the Cohe-
sion Fund in cases of non-compliance with the rules on public
contracts’ provides for an increase in the corrections finally
imposed, since the criteria contained in it require corrections
which are more substantial than those resulting from the appli-
cation of the Guidelines in force at the material time.

— the general principle of transparency in Article 255 of the
EC Treaty and Regulation (EC) No 1049/2001 of the Euro-
pean Parliament and of
the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission: the Guidelines were not widely publicised on
account of the form in which they were adopted and their
limited access.

— the general principle of legal certainty on account of the fact
that it applies retroactively to projects approved from 2000,
and

— the duty to give a statement of reasons.

As regards Decision C(2008) 3243 of 25 June 2008, the appli-
it
cant submits that, as well as being based on illegal rules,
infringes Article 7(1) of Regulation No 1164/94 and Article 17
of Regulation No 1386/2002 in so far as the basic amount for
calculating the correction is the contract tender value and not
the certified expenditure or,
the
contract.

the value of

failing that,

Action brought on 3 September 2008 — Spain v
Commission

(Case T-360/08)

(2008/C 272/90)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

In support of
first and in
its claims the applicant submits,
accordance with the provisions of Article 241 of the EC Treaty,
that the 2007 Guidelines are unlawful on the ground that they
are contrary to Article 7(1) of Council Regulation (EC)
No 1164/94 of 16 May 1994 establishing a Cohesion Fund and
Article 17 of Regulation (EC) No 1386/2002 laying down
detailed rules for the implementation of Council Regulation (EC)
No 1164/94, in so far as, first, they fail to set accurate financial
corrections, that is to say financial corrections which reflect the
amount of expenditure wrongly charged to the Fund and,
second, because by setting the corrections at that amount they
take the base for calculating the correction as the contract
tender value and not the certified expenditure or, failing that,
the price of the contract.

— Disapply the Guidelines for determining the financial correc-
tions applicable to expenses co-financed by the Structural
Funds and the Cohesion Fund in the event of failure to
comply with the public procurement rules, final version of
29 November 2007, COCOF 07/0037/03-ES,

— annul the Decision of the Commission of the European
Communities of 25 June 2008, C(2008) 3247, in so far as
it reduces financial assistance from the Cohesion Fund to
project group No 2001.ES.16.C.P.E.036 (cleaning of
the
Hydrographic Basin of the North — Galicia-2001), and

— order the Commission of the European Communities to pay

the costs.

25.10.2008

EN

Official Journal of the European Union

C 272/47

Pleas in law and main arguments

Pleas in law and main arguments

This dispute concerns a group of projects for the improvement
of existing and newly-constructed pumping stations, the expan-
sion, conditioning and improvement of the drainage network
and cleaning, situated in various parts of Galicia. The Com-
munity co-financing initially granted by the Commission
amounted to 80 % of the public cost eligible for subsidy.

In July 2007, the Commission sent a letter to the applicant
suggesting corrections to remedy the irregularities that came to
light during an earlier audit. The conclusions of the letter speci-
fied the two irregularities which together provided the reason
for the contested decision and the corresponding proposals for
financial corrections: the incorrect use of the emergency proce-
dure in relation to a procurement contract and the wrong use
of experience as an award criterion for various contracts. The
proposals for financial correction amount to EUR 697 901 and
EUR 354 591 respectively.

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘nollie’ for
goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 —
application No 4 602 017

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

or

sign cited:

International

Mark
trade mark registration
No 839 740 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25; United Kingdom trade mark registration
No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25.

The pleas in law and main arguments are those put forward in
Case T-359/08 Spain v Commission.

Decision of the Opposition Division: Allowed the opposition and
rejected the application in its entirety

Decision of
contested decision

the Board of Appeal: Partial annulment of

the

Action brought on 29 August 2008 — 2nine v OHIM —
Pacific Sunwear of California (nollie)

(Case T-363/08)

(2008/C 272/91)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by:
S. Palmer, Solicitor)

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal failed to find that there
is a likelihood of confusion between the conflicting trade marks
infringement of
with respect
Article 74(1) of Council Regulation No 40/94 as the Board of
Appeal failed or neglected to take into account properly the
facts, evidence and arguments submitted.

the contested goods;

to all

Action brought on 29 August 2008 — 2nine v OHIM —
Pacific Sunwear of California (nollie)

(Case T-364/08)

(2008/C 272/92)

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

Language in which the application was lodged: English

Other party to the proceedings before the Board of Appeal: Pacific
Sunwear of California, Inc. (Anaheim, United States)

Parties

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 16 June 2008 in case R 1590/2007-2;

— Order the defendant to pay the costs; and

Applicant: 2nine Ltd (London, United Kingdom) (represented by:
S. Palmer, Solicitor)

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

— Take any further action as the Court may deem appropriate.

Other party to the proceedings before the Board of Appeal: Pacific
Sunwear of California, Inc. (Anaheim, United States)