Case T-474/08: Action brought on 31 October 2008 — Umbach v Commission
Date: 2008-10-31
Institutions: Court of First Instance
Subjects: Central and Eastern Europe, EU programme, European Commission, access to EU information, action for annulment (EU), provision of documents

7.2.2009

EN

Official Journal of the European Union

C 32/37

Re:

Application for suspension of operation of Article 4(2) of
Commission Decision C(2008) 3435 final of 16 July 2008
relating to a proceeding under Article 81 EC and Article 53 of
the EEA Agreement (Case COMP/C2/38.698 — CISAC).

Operative part of the order

1. The application for interim measures is dismissed.

2. Costs are reserved.

Action brought on 23 October 2008 — Toland v
Parliament

(Case T-471/08)

(2009/C 32/72)

Language of the case: English

Parties

Applicant: Ciarán Toland (Dublin, Ireland)
Burke, Solicitor, E. Regan, SC)

(represented by: A.

Defendant: European Parliament

Form of order sought

— Annul decision A(2008) 10636 of Vice-President Dianna
Wallis MEP of the Bureau of the European Parliament of
11 August 2008 addressed to Ciaran Toland insofar as it
refused the applicant access
to Internal Audit Report
No 06/02 concluded on 9 January 2008 of the Internal
Audit Service of the European Parliament entitled ‘Audit of
the Parliamentary Assistance Allowance’;

— Order the European Parliament to grant the applicant access
to Internal Audit Report No 06/02 concluded on 9 January
2008 of
the European
Parliament entitled ‘Audit of the Parliamentary Assistance
Allowance’;

the Internal Audit Service of

— Order the European Parliament to pay the applicant's costs

of these proceedings.

Pleas in law and main arguments

On 11 June 2008,
the applicant applied to the European
Parliament for access to the 2006 Annual Report of the Euro-
pean Parliament Internal Audit Service, including the 16 Audit
reports referred to in paragraph 24 of the European Parliament
Resolution of 22 April 2008. By letter of 23 June 2008, the
applicant was granted partial access to one of the reports, the
Internal Audit Report 07/01, and made a confirmatory applica-
tion on the basis of Article 7(2) of Regulation (EC)
No 1049/2001 (1) for full access to the 16 Audit Reports. By
letter of 11 August 2008, which came to the knowledge of the

applicant on 20 August 2008,
the Vice-President of The
European Parliament replied to the application granting access
to 13 of the requested Internal Audit Reports, partial access to
2 of the other reports, while refusing access to one of them.

On the basis of its application made pursuant to Article 230 EC
and in accordance to Regulation (EC) No 1049/2001, the appli-
cant seeks partial annulment of Decision A(2008) 10636 of
11 August 2008, insofar as it rejected the applicant's request to
obtain access to Report No 06/02 of the Internal Audit Service
entitled ‘Audit of the Parliamentary Assistance Allowance’.

The applicant submits that the contested decision is vitiated by
manifest errors of law and of fact, is disproportionate and fails
to state reasons, in that:

(a) it advanced no grounds sustainable in law for refusal of

access;

(b) it abrogated to itself a discretion which it doesn't have in
failing to have regard to the provisions of the legislation;

(c) insofar as it advanced no legitimate grounds for refusal of
access under Article 4(2) third indent or Article 4(3) of
Regulation (EC) No 1049/2001;

(d) it failed to consider whether there was an overriding public
interest which might outweigh the grounds for refusal;

(e) the Vice-President failed to find that the interests of democ-
racy, openness and transparency are overriding public inter-
ests which outweigh the grounds for refusal;

(f) it acknowledged that Internal Audit Report made recom-
mendations for implementation of action plans within the
regulatory and legislative process or failed to find that the
interests of democracy, openness an transparency in the
regulatory and legislative process are matters of citizen
participation which constitute overriding public interest in
disclosure.

(1) Regulation (EC) 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 31 October 2008 — Umbach v
Commission

(Case T-474/08)

(2009/C 32/73)

Language of the case: German

Parties

Applicant: Dieter C. Umbach (represented by: M. Stephani,
lawyer)

Defendant: Commission of the European Communities

C 32/38

EN

Official Journal of the European Union

7.2.2009

Form of order sought

Form of order sought

— Annulment

of

the

defendant's

decision

(reference:

SG.E.3/MV/psi D(2008) 6991) of 2 September 2008.

Pleas in law and main arguments

The applicant has brought an action against the Commission
decision by which that institution refused full and unrestricted
access to documents connected with a TACIS programme and a
TACIS contract to which the applicant was a party. The appli-
cant claims that access to the documents in question is essential
for his defence in the action filed by the Commission against
him, following termination of the TACIS contract, for reimbur-
sement of the monies paid in advance.

In support of his action the applicant claims, first, that general
principles of Community law have been infringed, in particular
the right to sound administration and the right to due process,
because he, as a concerned party, must be given the possibility
to obtain full and unfettered access to documents necessary for
his defence and subsequent vindication of his own claims
against the Commission.

The applicant also claims, secondly, that a right to full and
unfettered access
from Regulation (EC)
No 1049/2001 (1), inasmuch as the Commission erred, in par-
ticular, in the exercise of its discretionary powers under Arti-
cles 4 and 9 of that regulation.

to the files arises

(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).

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 9 September 2008 (Case R 1858/2007-4);
and

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘Atlas Transport’ for trans-
port operations (transport of goods) in Class 39 (Community
trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a
declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regu-
lation (EC) No 2868/95 (1), in so far as an incorrect standard
was applied to the proof of use preserving the rights held and
as evidence submitted was incorrectly assessed; breach of the
procedural requirements of the right to a hearing in accordance
with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the
duty to give reasons under [Rule] 73(1) of Regulation (EC)
No 2868/95; incorrect assessment.

(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 November 2008 — Atlas Transport
v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

(2009/C 32/74)

Language in which the application was lodged: German

Action brought on 11 November 2008 — Longevity Health
Products v OHIM — Merck (Kids Vits)

(Case T-484/08)

(2009/C 32/75)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (repre-
sented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus,
lawyers)

Parties

Applicant: Longevity Health Products,
(represented by: J. Korab, lawyer)

Inc.

(Nassau, Bahamas)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Alfred Hartmann (Leer, Germany)

Other party to the proceedings before the Board of Appeal of OHIM:
Merck KGaA (Darmstadt, Germany)