Case T-533/08: Action brought on 3 December 2008 — Telekomunikacja Polska v Commission
Date: 2008-12-03
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), electronic document management, electronic mail

C 44/54

EN

Official Journal of the European Union

21.2.2009

Pleas in law and main arguments

By means of their application, the applicants seek the annul-
ment of the specific entry for a group of four nickel carbonate
related compounds — Nickel Hydroxycarbonate, Pure Nickel
Carbonate and two other compounds (the ‘Nickel Carbonates’)
— in Commission Directive 2008/58/EC (1)
(‘the 30th ATP
Directive’), which is an adaptation to technical progress (‘ATP’)
of Directive 67/548/EEC (2) (‘The Dangerous Substances Direc-
tive’).

The applicants' central claim is that the revised classification of
the Nickel Carbonates was not based on the applicable legal
criteria. According to the applicants, the revised classification of
the Nickel Carbonates is contrary to the requirements of
Dangerous Substances Directive since it was unsupported by
data and was not an adaptation to technical progress. Instead, it
is submitted that the Commission revised the classification of
the Nickel Carbonates based on a risk assessment of the Nickel
Carbonates carried out for a different purpose under Regulation
(EC) No 793/93 (3)
(‘The Risk Assessment Regulation’). The
applicant further submits that the Commission relied in particu-
lar upon a Derogation Statement
in which four individual
companies, including the applicants, requested permission not
to carry out certain testing required under the Risk Assessment
applicants,
Regulation. That Statement,
provided no data to support any of the changes in classification
of the Nickel Carbonates that are included in the 30th ATP
Directive.

according to the

Thus, the applicants seek the annulment of two separate acts of
the European Commission:

Moreover, the applicants claim that the revised classification of
the Nickel Carbonates in the 30th ATP Directive must be
annulled because the Commission failed to state the reasons on
which it is based, as required by Article 253 EC.

(1) Commission Directive 2008/58/EC of 21 August 2008 amending,
for the purpose of its adaptation to technical progress, for the 30th
time, Council Directive 67/548/EEC on the approximation of the
laws, regulations and administrative provisions relating to the classifi-
cation, packaging and labelling of dangerous substances (OJ 2008
L 246, p. 1).

(2) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to the
substances
classification, packaging and labelling of dangerous
(OJ 1967 196, p. 1).

(3) Council Regulation (EEC) No 793/93 of 23 March 1993 on the
evaluation and control of the risks of existing substances (OJ 1993
L 84, p. 1).

Action brought on 3 December 2008 — Telekomunikacja
Polska v Commission

(Case T-533/08)

(2009/C 44/95)

Language of the case: Polish

— the revised classification of the Nickel Carbonates in entry
028-010-00-0 in Annex 1F to the 30th ATP Directive;

Parties

— the Commission's decision to use the Derogation Statement
given by the applicants under the Risk Assessment Regu-
lation as the basis for the contested entry.

Applicant: Telekomunikacja Polska SA (Warsaw, Poland) (repre-
sented by H. Romańczuk, M. Modzelewska de Raad and S. Haut-
bourg, lawyers)

In support of
the
contested acts do not comply with the requirements of the
Dangerous Substances Directive for the following reasons:

their claims the applicants submit

that

a) the contested acts do not comply with the detailed criteria
and scientific data requirements for classification in each
hazard class under Annex VI to the Dangerous Substances
Directive;

b) in adopting the contested acts, the Commission did not
consider the intrinsic properties of the Nickel Carbonates in
the context of normal handling and use required by the
Dangerous Substances Directive;

c) the contested acts are not an adaptation to technical progress
of the Dangerous Substances Directive and, as such, have no
legal basis in EC law;

d) in taking the contested decision and basing the contested
entry on the Nickel Carbonates risk assessment under the
Risk Assessment Regulation, rather than applying Article 4
and Annex VI
the Commission
classification criteria,
exceeded its powers under the Dangerous Substances Direc-
tive.

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2008) 4997 of 4 September
2008 requiring the undertaking Telekomunikacja Polska SA
and all undertakings directly or indirectly controlled by it to
submit to an inspection in accordance with Article 20(4) of
Council Regulation No 1/2003 (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2008) 4997 of 4 September 2008 requiring the undertaking
Telekomunikacja Polska SA and all undertakings directly or
indirectly, wholly or partly controlled by it to submit to an
inspection in accordance with Article 20(4) of Council Regu-
lation No 1/2003, in connection with a procedure concerning
the
incompatible with
Article 82 EC in the electronic communications sector.

application of

practices

alleged

21.2.2009

EN

Official Journal of the European Union

C 44/55

The applicant raises the following pleas in law in support of its
action:

First, the applicant claims that the contested decision was taken
in breach of the obligation to state proper reasons laid down in
Article 253 EC and Article 20(4) of Council Regulation
No 1/2003. In this connection the applicant complains that the
Commission did not demonstrate in a satisfactory manner that
it was in possession of information and evidence on the basis of
which it could reasonably be asserted that the applicant had
committed the infringement
it was accused of. Moreover,
according to the applicant, the Commission's decision did not
describe with sufficient precision the facts which the Commis-
sion intended to examine in the course of the inspection. The
applicant further submits that the Commission breached the
obligations of describing in the contested decision the essential
features of the infringement the applicant was accused of.

the applicant claims

Second,
the contested decision
infringed the principle of proportionality, in that the Commis-
sion did not, according to the applicant, choose the method of
carrying out the procedure which would have been the least
oppressive for the applicant.

that

Third, the applicant claims that the Commission did not ensure
the applicant's rights of defence, particularly in connection with
the infringements alleged by the applicant in relation to the
contested decision in the first plea in law. In connection with
the above, the applicant submits that it was not able to deter-
mine clearly what practices would be the subject of
the
Commission inspection and consequently to make a proper
assessment of whether and to what extent the inspection was
justified or of its obligation to cooperate with the Commission
in the course of the inspection.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

Action brought on 1 December 2008 — Granuband v
OHIM — Granuflex (GRANUflex)

(Case T-534/08)

(2009/C 44/96)

Language in which the application was lodged: Dutch

Form of order sought

— Annul, or at

least

review,

the decision of OHIM of
15 September 2008, served on 24 September 2008, on
grounds of infringement of the provisions of Article 52(1),
in conjunction with Article 8(4), of Regulation No 40/94,
and

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: the figurative mark GRANUFLEX for
goods in Classes 17, 19 and 27 — Community Trade Mark
No 943118

Proprietor of the Community trade mark: Granuband BV

Applicant for the declaration of
mark: Granuflex Ipari és Kereskedelmi Kft.

invalidity of the Community trade

invalidity:
for
Trade-mark right of applicant
commercial designation GRANUFLEX for goods and services in
Classes 17, 19, 27 and 37

the declaration of

Decision of the Cancellation Division: declaration that the Com-
munity trade mark is invalid

Decision of the Board of Appeal: dismissal of the appeal brought
by the applicant

Pleas in law: breach of Articles 52(1)(c) and 8(4) of Regulation
No 40/94.

Action brought on 5 December 2008 — Etimine and
Etiproducts v Commission

(Case T-539/08)

(2009/C 44/97)

Language of the case: English

Parties

Applicant(s): Etimine SA (Bettembourg, Luxembourg) and Ab
Etiproducts Oy (Espoo, Finland) (represented by: C. Mereu and
K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities

Parties

Form of order sought

Applicant: Granuband BV (Amsterdam, Netherlands) (represented
by: M. Ellens, lawyer)

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

— declare the application admissible and well-founded;

— partially annul

the contested measures by annulling the
entries in Annex 1G to the contested measure relating to the
following substances:

Other party to the proceedings before the Board of Appeal of OHIM:
Granuflex Ipari és Kereskedelmi Kft (Budapest, Hungary)

— boric acid; boric acid, crude natural,

— diboron trioxide; boric oxide,