Case T-539/08: Action brought on 5 December 2008 — Etimine and Etiproducts v Commission
Date: 2008-12-05
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), approximation of laws, chemical product, data processing, epidemiology

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,

C 44/56

EN

Official Journal of the European Union

21.2.2009

— disodium tetraborate anhydrous; boric acid, disodium
salt; tetraboron disodium heptaoxide, hydrate; orthobroic
acid, sodium salt,

failed to provide adequate reasons pursuant to Article 253 EC as
no justification was given by the Commission to explain the
grounds for the extrapolation of data.

— disodium tetraborate decahydrate; borax decrahydrate,

— disodium tetraborate penthahydrate; borax pentahydrate.

— in alternative, partially annul

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

— diboron trioxide; boric oxide,

— disodium tetraborate anhydrous; boric acid, disodium
salt; tetraboron disodium heptaoxide, hydrate; orthobroic
acid, sodium salt,

— disodium tetraborate decahydrate; borax decrahydrate,

— disodium tetraborate penthahydrate; borax pentahydrate.

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

the applicant claims that

Third,
the Commission infringed
fundamental principles of the community law such as principle
of proportionality as stated in Article 5 EC as, in the applicant's
opinion, the contested measure goes beyond what is necessary
to achieve the aims pursued by that measure.

(1) OJ 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
classification, packaging and labelling of dangerous
substances,
OJ 196, p. 1.

(3) Council Decision of 28 June 1999 laying down the procedures for
the exercise of implementing powers conferred on the Commission,
OJ L 184, p. 23.

Pleas in law and main arguments

Action brought on 12 December

2008 — Esso

By means of this application, the applicant seeks partial annul-
ment pursuant
to Article 230 EC of 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, regula-
tions and administrative provisions relating to the classification,
packaging and labelling of dangerous substances (1) in so far as
it classifies certain borates as toxic to reproduction for both
fertility and development effects.

The applicant puts forward three pleas in law in support of its
claims.

First, the applicant claims that the Commission has infringed
essential procedural requirements as the contested measure fails
to comply with the applicable legislative procedure and there-
fore infringes Articles 5 and 7 EC, Article 29 of Council Direc-
tive 67/548/EEC (2)
and Article 5 of Council Decision
1999/468/EC (3).

Second, the applicant argues that the Commission committed
errors of assessment in applying the criteria for classification of
the borate substances and thus infringed Council Directive
67/548/EEC. It submits that the Commission did not apply or
failed to properly apply the ‘normal handling and use’ principle
provided for in Annex VI to Directive 67/548/EEC, unlawfully
applied risk assessment criteria while, in the applicant's opinion,
they are irrelevant in the context of classification of substances
under Directive 67/548/EEC and failed to apply or misapplied
the ‘appropriateness’ criterion in breach of point 4.2.3.3 of
Annex VI to Directive 67/548/EEC. Furthermore, the applicant
contends that the Commission failed to give sufficient weight to
epidemiological and human data submitted by the applicant
and, in result, the contested measure is partially vitiated by a
manifest error of assessment. The applicant claims that
the
Commission unlawfully extrapolated data relating to one of the
borate substances for the purposes of classifying the other
borate substances and therefore the contested measure must be
partially annulled at least in so far as it concerns the other
borate substances. The applicant submits that the Commission

e.a./Commission

(Case T-540/08)

(2009/C 44/98)

Language of the case: English

Parties

Applicants: Esso Société Anonyme
(Courbevoie,
France), Esso Deutschland GmbH (Hamburg, Germany), Exxon-
Mobil Petroleum and Chemical BVBA (Antwerpen, Belgium),
Exxon Mobil Corp. (Irving, United States) (represented by: R.
Snelders, R. Subiotto, L.-P. Rudolf, M. Piergiovanni, lawyers)

Française

Defendant: Commission of the European Communities

Form of order sought

— partially annul

the Commission's decision of 1 October
2008, relating to a proceeding under Article 81 EC (Case
COMP/39.181 — Candle waxes);

— reduce the fine imposed on the applicants by that decision,

and

— order the Commission to pay the costs of

the present

proceedings.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission's deci-
sion C(2008) 5476 final of 1 October 2008,
in Case
COMP/39.181 — Candle waxes (‘the contested decision’) and a
reduction of the fines imposed on the applicants.