Case T-33/09: Action brought on 26 January 2009 — Portuguese Republic v Commission of the European Communities
Date: 2009-01-26
Institutions: Court of First Instance
Subjects: EU law, Portugal, action for failure to fulfil an obligation, damages, public contract

C 82/30

EN

Official Journal of the European Union

4.4.2009

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) as there is no likelihood of confusion between the
opposing trade marks, and infringement of Rule 22 of Regu-
lation (EC) No 2868/95 (2) inasmuch as use preserving the right
to use the trade mark cited in opposition has not been suffi-
ciently proven.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

(2) 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 26 January 2009 — Portuguese
Republic v Commission of the European Communities

(Case T-33/09)

(2009/C 82/53)

Language of the case: Portuguese

Parties

Applicant:
Fernandes and J. A. de Oliveira, Agents)

Portuguese Republic

(represented by:

L.

Inez

Defendant: Commission of the European Communities

Forms of order sought

— as

the main plea, annul Decision C(2008) 7419 of
25 November 2008, by which the Commission required the
Portuguese Republic to make the penalty payment imposed
on it by the judgment of
Justice in Case
the Court of
C-70/06 with effect from 10 January 2008;

— in the alternative, annul the decision referred to in so far as

its effects extend beyond 29 January 2008;

— order the Commission of the European Communities to pay
all the costs or, if the amount of the penalty payment is
merely reduced by the Court of Justice, order each party to
bear its own costs.

Pleas in law and main arguments

The applicant seeks annulment of the decision at issue, pursuant
to Article 230 EC, on the ground that the Commission has
infringed the EC Treaty or the legal rules relating to its applica-
tion.

The Commission infringed the EC Treaty or the legal rules
relating to its application by requiring the applicant to make the
daily penalty payment imposed on it by the Court of Justice in
Case C-70/06 in respect of the period between 10 January and
17 July 2008, when the applicant had already fully complied
with its obligation to transpose Directive 89/665/EEC (1).

Justice delivered its judgment

When the Court of
in Case
C-70/06 on 10 January 2008, ordering the applicant to make a
penalty payment for every day of delay in implementing the
in Case
measures necessary to comply with its judgment
C-275/03 Commission v Portugal
[2004] ECR I-0000 —
requiring the repeal of Decree-Law No 48051 of 21 November
1967 which makes the award of damages to persons injured by
a breach of Community law relating to public contracts, or the
national laws implementing it, conditional on proof of fault or
fraud — the Portuguese Republic had already approved Law
No 67/2007. That law repeals the decree-law referred to and
approves the new system for the non-contractual liability of the
State and other public bodies, and had been published by the
Portuguese Republic on 31 December 2007 in the Diário da
República (The Portuguese Official Journal), First Series, No 251.
That law entered into force 30 days after its publication, that is
to say on 30 January 2008.

On 4 January 2008, the applicant notified that fact to the Court
of Justice and requested that a copy of Law No 67/2007 be
added to the file in Case C-70/06. However, due to the advanced
stage of the proceedings, the Court of Justice could no longer
take the fact in question into account, and delivered its judg-
ment on 10 January 2008.

Accordingly, the applicant submits that the penalty payment
claimed may only relate to the period until 9 January 2008 or,
in the worst case until 29 January 2008, as the date on which
Law No 67/2007 entered into force does not coincide with the
date of
its publication. The Commission's claim is therefore
completely unfounded in so far as it relates to subsequent
periods.

(1) Council Directive 89/665/EEC of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions relating
to the application of review procedures to the award of public
supply and public works contracts (OJ 1989 L 395, p. 33).

Action brought on 23 January 2009 — dm-drogerie markt
v OHIM — Distribuciones Mylar (dm)

(Case T-36/09)

(2009/C 82/54)

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH + Co. KG (Karlsruhe,
(represented by: O. Bludovsky and C. Mellein,
Germany)
lawyers)

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

Other party
to the proceedings before
Distribuciones Mylar, SA (Gelves, Spain)

the Board of Appeal: