Case T-494/08: Action brought on 14 November 2008 — Ryanair/Commission
Date: 2008-11-14
Institutions: Court of First Instance
Subjects: European Commission, State aid, access to EU information, action for annulment (EU), air transport, provision of documents

C 32/40

EN

Official Journal of the European Union

7.2.2009

Action brought on 18 November 2008 — Wessang v
OHIM — Greinwald (star foods)

(Case T-492/08)

(2009/C 32/77)

Language in which the application was lodged: French

Pleas in law: According to the applicant, there is a likelihood of
confusion between the two marks at issue, to the extent that
they are extremely similar both visually and phonetically or
conceptually and refer to similar or even identical goods.

Action brought on 14 November 2008 — Ryanair/
Commission

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented
by: A. Grolée, lawyer)

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

Other party to the proceedings before the Board of Appeal: Greinwald
GmbH (Kempten, Germany)

Parties

(Case T-494/08)

(2009/C 32/78)

Language of the case: English

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of

17 September 2008;

Applicant: Ryanair Ltd (Dublin,
Vahida, I. Metaxas-Maragkidis, lawyers)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

— Uphold the opposition filed by Mr Nicolas WESSANG of
26 September 2005 against the application for registration
of the mark STAR FOODS + device No 004105615;

Form of order sought

— Reject that application for registration No 004105615 in its

entirety;

— Order the company Greinwald GmbH to pay the whole of
the costs incurred by Mr Nicolas WESSANG in the opposi-
tion proceedings, the appeal proceedings and the present
proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Greinwald GmbH

Community trade mark concerned: Figurative mark ‘star foods’ for
goods in Classes 29, 30 and 32 — application No 4 105 615

— declare in accordance with Articles 230 and 231 EC that the
Commission's implied decision refusing access to the docu-
ments for which access was requested by the applicant in an
the
application dated 25 June 2008 is void and that
Commission's decision of 9 October 2008 refusing access to
the same documents is non-existent;

— alternatively, declare

in accordance with Articles 230
and 231 EC that the Commission's decision of 9 October
2008 refusing access to the documents for which access was
requested by the applicant in an application dated 25 June
2008 is void;

— order the Commission to pay the costs incurred by the

applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Proprietor of the mark or sign cited in the opposition proceedings:
Nicolas Wessang

Pleas in law and main arguments

Mark or sign cited in opposition: Community figurative and word
marks ‘STAR SNACKS’ for goods in Classes 29, 30 and 31

Decision of the Opposition Division: The opposition is upheld

Decision of the Board of Appeal: Annulment of the decision of the
Opposition Division and rejection of the opposition

By means of this application the applicant seeks annulment of
the Commission implied decision rejecting the applicant's
request, pursuant to Regulation No 1049/2001 (1), of the access
to documents relating to State aid procedures concerning the
presumed State aid granted through an agreement with the
operator of Aarhus airport. The said decision was followed by
the express decision of 9 October 2008. The annulment of the
express decision is alternatively sought by the applicant in the
present case.

7.2.2009

EN

Official Journal of the European Union

C 32/41

In support of its application the applicant puts forward two
pleas in law.

that

submits

the applicant

the Commission's

refusal
First,
infringes Article 4 of Regulation No 1049/2001. First of all, it
states that the Commission performed an overall examination
instead of carrying out an individual examination of the docu-
ments referred to in the request for access. In particular, the
applicant claims that the Commission has not assessed to the
requisite legal standard the existence of the specific, actual and
foreseeable risk of harming the protected interests set out in
Article 4(2) and (3) of the Regulation. Moreover, the applicant
argues that the Commission failed to assess to the requisite legal
standard that partial disclosure of the documents would have
harmed the protection of legal advice, the purpose of investiga-
tions or the Commission's decision-making process and thus
infringed Article 4(6) of the Regulation and it has failed to
the
apply properly the principle of proportionality. Finally,
applicant contends that the Commission failed to assess the
public interest considerations regarding the right of defence and
transparency and openness relied on by the applicant.

Second, the applicant submits that the Commission's implied
refusal of access and its decision of 9 October 2008 infringe the
duty to state reasons pursuant to Article 253 EC and Article 8
of Regulation 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.

— alternatively, declare

in accordance with Articles 230
and 231 EC that the Commission's decision of 8 October
2008 refusing access to the documents for which access was
requested by the applicant in an application dated 25 June
2008 is void;

— order the Commission to pay the costs incurred by the

applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of
the Commission implied decision rejecting the applicant's
request, pursuant to Regulation No 1049/2001 (1), of the access
to documents relating to State aid procedures concerning the
presumed State aid granted through an agreement with the
operator of Alghero airport. The said decision was followed by
the express decision of 8 October 2008. The annulment of the
express decision is alternatively sought by the applicant in the
present case.

The pleas in law and main arguments relied on by the applicant
are identical to those relied on in Case T-494/08 Ryanair v
Commission.

(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 14 November 2008 — Ryanair/
Commission

Action brought on 14 November 2008 — Ryanair/
Commission

(Case T-495/08)

(2009/C 32/79)

Language of the case: English

(Case T-496/08)

(2009/C 32/80)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, I. Metaxas-Maragkidis, lawyers)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the
Commission's implied decision refusing access to the docu-
ments for which access was requested by the applicant in an
application dated 25 June 2008 is void and that
the
Commission's decision of 8 October 2008 refusing access to
the same documents is non-existent;

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, I. Metaxas-Maragkidis, lawyers)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the
Commission's implied decision refusing access to the docu-
ments for which access was requested by the applicant in an
application dated 25 June 2008 is void;