Case T-383/08: Action brought on 11 September 2008 — New Europe v Commission
Date: 2008-09-11
Institutions: Court of First Instance
Subjects: Belgium, European Commission, action for annulment (EU), disclosure of information, financial interests of members, information

22.11.2008

EN

Official Journal of the European Union

C 301/47

Action brought on 10 September 2008 — Advance
Magazine Publishers v OHIM — Capela & Irmãos (VOGUE)

(Case T-382/08)

(2008/C 301/80)

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United
States) (represented by: M. Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: J. Capela
& Irmãos, Lda. (Porto, Portugal)

Form of order sought

— Alter the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 June 2008 in case R 328/2003-2 so as
to hold that the appeal brought by the applicant before the
Board of Appeal is well founded and, consequently, that the
opposition is rejected and the Community trade mark
concerned is admitted;

— In the alternative, annul the decision of the Second Board of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 30 June 2008 in case
R 328/2003-2; and

Pleas in law: (i) Infringement of Article 43(2) and (3) of Council
Regulation No 40/94 and Rule 22 of Commission Regulation
No 2868/95 (1) as the Board of Appeal wrongly considered that
the evidence submitted by the other party to the proceedings
before the Board of Appeal did constitute proof of genuine use
of the earlier trade mark; (ii) Infringement of Article 8(1)(b) of
Council Regulation No 40/94 as the Board of Appeal wrongly
found that the goods in question are similar; (iii) Infringement
of Articles 61(1) and 62(2) of Council Regulation No 40/94
insofar as the Board of Appeal wrongly based its ruling on the
fact that the applicant failed to challenge the findings of the
Opposition Division as to the proof of use or as to the similarity
of the goods and services in question, as well as on the fact that
before the Opposition Division the applicant implicitly consid-
ered that the proof of use was sufficient.

(1) 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 11 September 2008 — New Europe v
Commission

(Case T-383/08)

(2008/C 301/81)

Language of the case: English

— Order the defendant and, as the case may be, the other
party to the proceedings before the Board of Appeal, to pay
the costs,
incurred before
OHIM.

including the costs of appeal

Parties

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VOGUE’ for
goods and services in classes 9, 14, 16, 25 and 41

Applicant: New Europe (Brussels, Belgium) (represented by: A.-M.
Alamanou, lawyer)

Defendant: Commission of the European Communities

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Form of order sought

Mark or sign cited: Portuguese trade mark registration No 143 183
of the word mark ‘VOGUE Portugal’ for goods in class 25;
Portuguese business name No 32 046 ‘VOGUE-SAPATARIA’

Decision of the Opposition Division: Upheld the opposition in its
entirety

— Annulment of the Commission decision in the form of a
letter dated 2 July 2008 and received by the applicant on
the same day, refusing to the latter access to the names of
the companies and the individuals cited in the documents
disclosed by the Commission; and

— Order that the costs of, and occasioned by these proceedings

Decision of the Board of Appeal: Dismissal of the appeal

be borne by the respondent.

C 301/48

EN

Official Journal of the European Union

22.11.2008

Pleas in law and main arguments

By way of the present application, the applicant challenges the
Commission decision notified to the latter by letter dated 2 July
2008 by which the Commission refused to disclose the names
of the companies and of the individuals involved in the so-
called ‘Eximo’ case which are cited in the documents disclosed
to the applicant by the Commission in reply to its initial appli-
cation.

The applicant seeks to annul the contested decision on the basis
of the following grounds:

first

4(2)

indent

4(1)(b),

of Regulation

First, according to the applicant,
the contested decision is
vitiated by a manifest error of law in so far as the Commission
wrongly interpreted and relied on the exceptions provided in
Article
(EC)
No 1049/2001 (1) without carrying out an assessment of fact or
setting out the reasons for its refusal. In addition, the applicant
submits that the Commission made an error of appreciation of
the facts in finding that the commercial interests of the compa-
nies concerned and the privacy and the integrity of the indivi-
duals involved would have been seriously undermined should
their names be disclosed. Furthermore, the applicant contends
that, by opting for an extensive interpretation of
the term
‘protection of commercial interests’ and ‘protection of privacy
and integrity of the individual’, the Commission violated the
principle of the widest possible access to documents as set out
in Article 1(a) of Regulation (EC) No 1049/2001.

the applicant submits

Second,
the contested decision
infringed Article 4(4) of Regulation (EC) No 1049/2001 in so
far as the Commission failed to grant the applicant full access to
a document which was already publicly available.

that

Third, the applicant submits that the Commission violated the
obligation to state reasons in accordance with Article 253 EC,
by failing to inform the applicant on the grounds on which it
based its decision and by simply referring to the exceptions set
out in Article 4(4) of Regulation (EC) No 1049/2001.

(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 11 September 2008 — Elliniki
Nafpigokataskevastiki and Others v Commission

(Case T-384/08)

(2008/C 301/82)

Language of the case: English

Parties

Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou
(Skaramangas,Greece) Howaldtswerke-Deutsche Werft GmbH

(Kiel, Germany)
(Hamburg, Germany) (represented by: U. Soltész, lawyer)

and ThyssenKrupp Marine Systems AG

Defendant: Commission of the European Communities

Form of order sought

— Order the annulment of Article 16 of the decision of the
Commission of 2 July 2008 on the Measures No C 16/2004
(ex NN 29/2004, CP 71/2002 and CP 133/2005) imple-
mented by Greece in favour of Hellenic Shipyards; and

— Order the Commission to pay the applicant's costs of the

present proceedings.

Pleas in law and main arguments

By means of their application the applicants seek partial annul-
ment of Commission Decision C(2008) 3118 final, of 2 July
2008, concerning sixteen measures implemented by the Greek
State in favour of Hellenic Shipyards SA (‘HSY’) and, in particu-
lar, annulment of Article 16 of the said decision according to
which the Commission decided that the Indemnification Guar-
antee granted by HSY's previous owner, Hellenic Bank of Indus-
trial Development (‘ETVA’), to the consortium (1) that acquired
HSY through a share purchase agreement
(Howaldtswerke-
Deutsche Werft (2) and Ferrostaal),
in the event of state aid
recovery from HSY, constitutes illegal state aid and should be
stopped immediately.

The applicants claim that the Commission incorrectly consid-
ered that the Indemnification Guarantee in the privatisation
agreement was given at a time when ETVA was under state
control. According to the applicants, the Indemnification Guar-
antee was only validly agreed after ETVA's privatisation and
therefore constituted a measure negotiated between private
parties, not imputable to the Greek State and therefore cannot
be regarded as state aid.

Moreover, the applicants submit that the Commission's allega-
tion that the two separate clauses in the addendum to the
purchase sharing agreement constituted one overall mechanism
through which HSY would benefit is erroneous. In fact, the
applicants submit that the two guarantees were granted inde-
pendently of each other. In addition, the applicants contend that
the Commission wrongly considered that HSY benefited from
the Indemnification Guarantee since, having regard to the facts
of the case, only Piraeus Bank could be considered to have bene-
fited form it.

The applicants argue that the Commission was wrong in consid-
ering that an economic advantage was conferred on HSY by
virtue of the Indemnification Guarantee which (i) is a standard
term under private law, (ii) was given after a dully carried out
assessment and (iii) conforms to the conduct of a private
vendor.