CELEX: C2003/135/58
Language: en
Date: 2003-06-07 00:00:00
Title: Case T-116/03: Action brought on 7 April 2003 by Oreste Montalto against the Council of the European Union

C 135/36               EN                           Official Journal of the European Union                                         7.6.2003
The other party in the proceedings before the Board of Appeal               Action brought on 7 April 2003 by Oreste Montalto
was Grotto spa.                                                                       against the Council of the European Union
The applicant claims that the Court should:                                                         (Case T-116/03)
—     annul the contested decision which forms the subject-
                                                                                                    (2003/C 135/58)
      matter of these proceedings; in the alternative, declare
      there is no likelihood of confusion between the signs in
      question so far as concerns all the goods requested except
      for jeans, in respect of which there is a likelihood of                                  (Language of the case: French)
      confusion or, at least, so far as concerns all those goods
      which the Court does not consider likely to be confused
      and, accordingly annul the contested decision so far as
      such goods are concerned;
                                                                            An action against the Council of the European Union was
—     order the defendant to pay the costs.                                 brought before the Court of First Instance of the European
                                                                            Communities on 7 April 2003 by Oreste Montalto, resident
                                                                            in Alicante (Spain), represented by Georges Vandersanden,
                                                                            avocat.
Pleas in law and main arguments
                                                                            The applicant claims that the Court should:
Applicant for Com-             The applicant
munity trade mark:                                                          —     annul the decision of the Council, taken by its President
                                                                                  on 23 May 2002, appointing an additional Chairman of
Community trade mark           Word mark ‘GAS STATION’ —                          a Board of Appeal, also President of the Appeals Depart-
sought:                        application No 712647, regis-                      ment of the OHIM, and thereby rejecting the applicant’s
                               tration sought in respect of goods                 candidature for the same post;
                               in Class 25 (‘Clothing, footwear,
                               headgear’)
                                                                            —     award the applicant compensation for the material and
                                                                                  non-material loss suffered, provisionally assessed at
Proprietor of mark or          Grotto S.p.A.                                      EUR 20 000;
sign cited in the oppo-
sition proceedings:
                                                                            —     order the defendant to pay the costs.
Mark or sign cited in          Italian trade mark ‘BLUE JEANS
opposition:                    GAS’ registered in respect of
                               goods in Class 25 (‘trousers, jack-
                               ets, jeans, shirts, skirts, heavy jack-
                               ets, sports jerseys, sweaters, tail-
                                                                            Pleas in law and main arguments
                               ored jackets, stockings, socks,
                               footwear, boots, slippers’)
Decision of the Oppo-          Registration refused                         The applicant is an official of the Office for Harmonisation in
sition Division:                                                            the Internal Market (OHIM). In response to a vacancy notice,
                                                                            he submitted his candidature for the post of Chairman of a
Decision of the Board of       Appeal dismissed                             Board of Appeal of the OHIM. Another candidate was
Appeal:                                                                     appointed to that post by the contested decision and the
                                                                            applicant’s candidature was accordingly rejected. In support of
                                                                            his claims, the applicant makes two pleas in law. The first plea
Pleas in law:                  Misapplication of Article 8(1)(b)            alleges infringement of the selection procedure. In that respect,
                               of Regulation (EC) No 40/94 inas-            the applicant argues that the selection procedure was entrusted
                               much as the trade marks in ques-             to a private company and that both the competent authorities
                               tion are not to be considered                within the OHIM and the defendant had in reality abdicated
                               similar for the purposes of that             their power of supervision by simply ratifying the conclusions
                               provision                                    to which that company came. He also argues that the contested
                                                                            decision should have been taken by the President of the OHIM
                                                                            and not by the defendant. The second plea alleges manifest
                                                                            errors of assessment and an infringement of the principle of
 ---pagebreak--- 7.6.2003               EN                          Official Journal of the European Union                                         C 135/37
equality of treatment as regards the use of English during the             considerations are mistaken, there would be no serious
selection procedure, in addition to other alleged defects in the           social difficulties if British Energy became insolvent, and the
same procedure. The applicant also argues that insufficient                contested Decision is, therefore, in breach of paragraph 23 (c)
reasons were stated for the contested decision.                            of the Guidelines. The applicant also claims that the aid in
                                                                           question is not restricted to the amount needed to keep British
                                                                           Energy in business, because if British Energy were placed into
                                                                           administration, as provided for by English insolvency law, the
                                                                           cost of keeping it in business might be smaller. For this reason
                                                                           the applicant considers that the contested Decision is also
                                                                           contrary to paragraph 23(e) of the Guidelines. The applicant
                                                                           further claims that the contested Decision violated para-
                                                                           graph 23 (a) of the Guidelines, by failing to take into account
Action brought on 14 April 2003 by AES Drax Power                          that the contested aid takes the form of cash placed on deposit
Limited against the Commission of the European Com-                        by the government. According to the applicant these deposits
                              munities                                     remove the market risk of dealing with British Energy and are
                                                                           therefore not identical to loans or state guarantees of loans
                                                                           provided for in paragraph 23 (a) of the Guidelines. Finally, the
                          (Case T-124/03)                                  applicant contends that the defendant exceeded the limits
                                                                           placed upon the exercise of its discretion by the EC Treaty and
                                                                           the general principles of EC law in failing to take account of
                         (2003/C 135/59)
                                                                           the impact of the contested aid on the competitors of British
                                                                           Energy.
                   (Language of the case: English)
                                                                           (1 ) OJ 1999 No C 288 p. 2.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 April 2003 by AES Drax Power
Limited, Selby, United Kingdom, represented by K. P. E. Lasok
QC and Ms. E. Gibson-Bolton, Solicitor.
The applicant claims that the Court should:
                                                                           Action brought on 14 April 2003 by Reckitt Benckiser
—     Order any measures of enquiry necessary to resolve the               (España), S.L. against the Office for Harmonisation in the
      issues of fact in this case                                               Internal Market (Trade Marks and Designs) (OHIM)
—     Annul the contested decision of 27 November 2002
      authorising State Aid NN101/02 to British Energy plc.                                         (Case T-126/03)
—     order the defendant to pay the applicant’s costs
                                                                                                    (2003/C 135/60)
                                                                           (Language of the case to be determined pursuant to Article 131(2)
Pleas in law and main arguments                                            of the Rules of Procedure — language in which the application was
                                                                                                    submitted: English)
In September 2002 the United Kingdom Government awarded
a package of rescue aid to British Energy plc., one of the main
producers of electricity in the United Kingdom and a nuclear
stations operator. By the contested Decision the defendant                 An action against the Office for Harmonisation in the Internal
decided that this state aid was compatible with the EC Treaty.             Market (Trade Marks and Designs) (OHIM) was brought before
The applicant, a competitor of British Energy, seeks the                   the Court of First Instance of the European Communities on
annulment of that Decision, contending that the defendant                  14 April 2003 by Reckitt Benkiser (España), S.L., Barcelona,
breached its own Guidelines on State Aid for Rescuing and                  Spain represented by Ms Monica Esteve Sanz, lawyer,
Restructuring firms in difficulty ( 1). The applicant disputes the
defendant’s findings that in the absence of the aid in question
British Energy would be insolvent and have to cease operating
and that if it did so there would be serious consequences both             ALADIN Gesellschaft für innovative mikrobiologische Systeme
for nuclear safety and for the security of power supply in                 GmbH was also a party to the proceedings before the Board of
the United Kingdom. According to the applicant all these                   Appeal.