C 317/36               EN                     Official Journal of the European Communities                                    10.11.2001
According to the applicant, the company managing the store               23 September 1999, the contract in respect of Lot No 5 for
did not properly carry out its loading obligations, and as the           the transport of 6 500 tonnes of skimmed-milk powder from
Polish police found overloading, they levied fines on the                Ireland to Russia.
applicant. Also, the managing company required prior pay-
ment of the additional charges for those loading operations.             According to the applicant the intervention agency, the
                                                                         Department of Agriculture, Food and Rural Development
In support of its claims, the applicant relies on the contractual        (D.A.F.) sent it the goods with substantial delay, which forced
and non-contractual liability of the Commission.                         it to pay demurrage to the owner of the ship which it had
                                                                         chartered.
The applicant relies on the same arguments as in Case                    In support of its claims seeking compensation for the losses
T-215/01, taking account of the fact that in the present case            suffered, the applicant pleads contractual liability and, alterna-
the additional charges were caused by the actions of the                 tively, non-contractual liability of the Commission by putting
warehouse of the intervention agency, which required prior               forward pleas and arguments similar to those presented in
payment of an additional sum for releasing and loading the               Case T-215/01.
goods and carried out the relevant operations badly, exposing
the applicant to the fines.
                                                                         (1) Commission Regulation (CE) No 1815/1999 of 18 August 1999
                                                                             on the supply of skimmed-milk powder to Russia (OJ 1999 L 220,
                                                                             p. 13).
Action brought on 24 September 2001 by Calberson G.E.
  against the Commission of the European Communities                             Removal from the Register of Case T-42/00 (1)
                         (Case T-221/01)                                                          (2001/C 317/71)
                         (2001/C 317/70)                                                    (Language of the case: German)
                   (Language of the case: French)                        By order of 5 June 2001, the President of the Second Chamber
                                                                         of the Court of First Instance of the European Communities
                                                                         has ordered the removal from the Register of Case
An action against the Commission of the European Communi-                T-42/00, City-Broker Deutschland GmbH v the Office for
ties was brought before the Court of First Instance of the               Harmonisation in the Internal Market (Trade Marks and
European Communities on 24 September 2001 by Calberson                   Designs).
G.E., a company established in Paris, represented by Thierry
Gallois, lawyer.
                                                                         (1) OJ C 135 of 13.5.00.
The applicant claims that the Court should:
—     order the Commission to pay to the applicant compen-
      sation equal to the totals of invoices BRU 114 4316
      (USD 25 761,11) and BRU 413 1828 (23 115,49 Euros);                       Removal from the Register of Case T-359/00 (1)
—     order interest at the legal rate to be added to the                                         (2001/C 317/72)
      compensation from the 8th day following each unpaid
      invoice;                                                                              (Language of the case: Spanish)
—     order that all the costs be paid by the Commission.                By order of 21 June 2001, the President of the Fourth Chamber
                                                                         of the Court of First Instance of the European Communities
                                                                         has ordered the removal from the Register of Case T-359/00,
                                                                         Organización de Productores Asociados de Grandes Atuneros
Pleas in law and principal arguments                                     Congeladores (OPAGAC) y Empresarios Asociados v Com-
                                                                         mission of the European Communities.
The applicant states that, in the context of Regulation
No 1815/1999 (1), the Commission awarded it, by decision of              (1) OJ C 45 of 10.2.01.


title: Case T-113/10: Action brought on 8 March 2010 — Spain v Commission

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/74

         Action brought on 8 March 2010 — Spain v Commission
   (Case T-113/10)
   2010/C 113/108
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

      Defendant: European Commission

      Form of order sought

               —

               Annulment of Commission Decision No 10678 of 23 December 2009 reducing the assistance from the European Regional Development Fund (ERDF) for the País Vasco operational programme Objective 2 (1997-1999) in Spain pursuant to Decision C(98) 121 of 5 February 1998, ERDF No 97.11.09.007, and

               —

               an order that the Commission should pay the costs.

      Pleas in law and main arguments

   The origin of this case is Decision C(98) 121 of 5 February 1998 by which the Commission granted assistance from the European Regional Development Fund (ERDF) and the European Social Fund (ESF) for an operational programme in the País Vasco region, forming part of the Community support framework for action by the structural funds in the Spanish regions concerned by Objective No 2 in the period 1997-1999, for a maximum amount of EUR 291 862 367.
   The decision contested in these proceedings maintains that in the carrying out of that operational programme irregularities occurred in 24 of the 37 projects audited, which affects a total of ESP 4 844 712 820 and entails a financial correction of EUR 27 794 540,77.
   In support of its claims the applicant puts forward the following pleas in law:

               —

               infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, (1) in that the extrapolation method was used in the contested decision, given that that article does not provide for it to be possible to extrapolate irregularities found in specific actions to the whole body of actions included in the operational programmes financed by ERDF funds. The correction applied by the Commission in the contested decision has no basis in law, because the Commission’s internal guidelines of 15 October 1997 concerning net financial corrections in the context of the application of Article 24 of Regulation (EEC) No 4253/88 cannot, in accordance with the judgment of the Court of Justice in Case C-443/97 Spain v Commission, (2) be considered to produce legal effects vis-à-vis the Member States, and because that provision envisages the reduction of assistance only when examination of that assistance reveals an irregularity, a principle breached by the application of corrections by extrapolation;

               —

               as a subsidiary plea, infringement of Article 24 of Regulation (EEC) No 4253/88 read in conjunction with the present Article 4(3) TEU (principle of sincere cooperation), for the correction was applied by extrapolation although no deficiency had been revealed in the management, supervision or audit systems regarding the amended contracts, given that the management bodies applied the Spanish legislation which has not been declared by the Court to be contrary to the law of the European Union. The Kingdom of Spain takes the view that the management bodies’ observance of national law, even though it may lead to a finding by the Commission of irregularities or of actual infringements of European Union law, cannot serve as a basis for extrapolation on the ground of failings in the system of management, when the law applied by those bodies has not been declared contrary to European Union law by the Court of Justice and when the Commission has not brought an action against the Member State under Article 258 TFEU;

               —

               as a subsidiary plea, infringement of Article 24 of Regulation (EEC) No 4253/88, in that the sample used for the application of the financial correction by extrapolation was unrepresentative. In this respect it is claimed that the Commission formed the sample for the application of extrapolation with a very limited number of projects (37 out of 3 348), without taking into consideration all the essential parts of the operational programme, including expenditure withdrawn beforehand by the Spanish authorities, taking as the starting point the expenditure declared and not the assistance granted and by using an IT programme which offered a level of reliability of less than 85 %. The Kingdom of Spain considers, therefore, that the sample does not satisfy the conditions of representativity required in order for it to serve as a basis for extrapolation;

               —

               finally, the Kingdom of Spain considers that the communication of irregularities to the Spanish authorities (which took place in August 2005, in most cases concerning irregularities committed during the years 1998 and 1999) must determine the moment from which the period of four years laid down in Article 3 of Regulation No 2988/95 (3) started to run with regard to those irregularities.

      (1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

      (2)  Case C-443/97 Spain v Commission (2000) ECR I-2415.

      (3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1).


title: Case T-378/11: Action brought on 18 July 2011 — Langguth Erben v OHIM (MEDINET)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/55

         Action brought on 18 July 2011 — Langguth Erben v OHIM (MEDINET)
   (Case T-378/11)
   2011/C 269/121
   Language of the case: German

      Parties

      Applicant: Franz Wilhelm Langguth Erben GmbH & Co. KG (Traben-Trarbach, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of 10 May 2011 in Case R 1598/2010-4 relating to Community trade mark application No 8 786 485;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the figurative mark ‘MEDINET’ for goods in Class 33 — application No 8 786 485

      Decision of the Examiner: the registration of the mark with seniority of earlier national and international marks was refused

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Articles 34, 75 and 77 of Regulation No 207/2009 as the Board of Appeal (i) refused to register the seniority in an unlawful manner; (ii) did not examine the applicant’s submissions in respect of Board of Appeal decisions regarding claims of priority and seniority; and (iii) did not fix a date for oral proceedings.


title: Case C-310/10: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 29 June 2010 — Ministerul Justiției și Libertăților Cetățenești v Ștefan Agafiței and Others

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/27

         Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 29 June 2010 — Ministerul Justiției și Libertăților Cetățenești v Ștefan Agafiței and Others
   (Case C-310/10)
   ()
   2010/C 234/44
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Appellant: Ministerul Justiției și Libertăților Cetățenești

      Respondents: Ștefan Agafiței, Apetroaei Raluca, Bărbieru Marcel, Budeanu Sorin, Chiagă Luminița, Crăciun Mihaela, Curpăn Sorin-Vasile, Dabija Mihaela, Damian Mia-Cristina, Danalache Sorina, Dogaru Oana-Alina, Dorneanu Geanina, Galavan Adina-Cătălina, Grancea Gabriel, Radu (Hobjilă) Mădălina, Iacobuț Nicolae Cătălin, Lăcătușu Roxana, Lupașcu Sergiu, Maftei Smaranda, Mărmureanu Silvia, Oborocianu Maria, Panfil Simona, Pânzaru Oana-Georgeta, Păduraru Laurențiu, Pîrjol-Năstase Elena, Pocovnicu Ioana, Pușcașu Alina, Ștefănescu Cezar, Ștefănescu Roxana, Țimiraș Ciprian, Vintilă Cristina

      Intervening Parties: Tribunalul Bacău, Curtea de Apel Bacău, Ministerul Economiei si Finanțelor Publice, Consiliul Național pentru Combaterea Discriminării

      Questions referred

               1.

               Do Article 15 of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1) and Article 17 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (2) — both transposed into national law by OG (Ordonanța Guvernului (Government legislative decree)) No 137/2000, as republished and amended — preclude national legislation or a judgment of the Curte Constituțională (Constitutional Court) prohibiting the national judicial authorities from awarding to claimants who have been discriminated against the compensation for material and/or non-material damage which is considered appropriate in cases in which the compensation for the damage caused by discrimination relates to salary rights provided for by law and granted to a socio-professional category other than that to which the claimants belong (see, to that effect, judgments of the Curte Constituțională No 1325 of 4 December 2008 and No 146 of 25 February 2010)?

               2.

               If the answer to Question 1 is in the affirmative, are the national courts required to await the repeal or amendment of the provisions of national law — and/or a change in the case-law of the Curte Constituțională — which are, ex hypothesi, contrary to the provisions of Community law, or are the courts required to apply Community law, as interpreted by the Court of Justice of the European Union, directly and immediately to the proceedings pending before them, declining to apply any provision of national law or any judgment of the Curte Constituțională which is contrary to the provisions of Community law?

      (1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

      (2)  OJ 2000 L 303, p. 16.


title: Case C-273/15: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 8 June 2015 — ZS ‘Ezernieki’ v Lauku atbalsta dienests

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/10

         Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 8 June 2015 — ZS ‘Ezernieki’ v Lauku atbalsta dienests
   (Case C-273/15)
   (2015/C 262/14)
   Language of the case: Latvian

      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Appellant: ZS ‘Ezernieki’

      Respondent: Lauku atbalsta dienests

      Questions referred

               1.

               Is the application of the legal effects provided for in Article 71(2) of Regulation No 817/2004 (1) to agri-environmental support granted for the originally declared part of an area, in respect of which the prior conditions for grant of that support were complied with for five years, compatible with the objective of Regulations Nos 1257/99 (2) and 817/2004 and with the principle of proportionality?

               2.

               Must Article 17, in conjunction with Article 52, of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the application of the legal effects provided for in Article 71(2) of Regulation No 817/2004 to agri-environmental support granted for part of an area, in respect of which the prior conditions for grant of that support were complied with for five years, is compatible with those articles?

               3.

               Must Article 52 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that it is permitted to refrain from applying the legal effects which a Regulation and the provisions adopted by a Member State in accordance with that Regulation regard as obligatory, if, in a specific case, there are special circumstances in the context of which the limitation concerned may be considered to be disproportionate?

               4.

               In the light of the objective of Regulations Nos 1257/99 and 817/2004 and the limits laid down therein on the discretion allowed to the Member States, is it acceptable for the court examining the substance of the case not to apply in its full scope Article 84 of Decree No 295 of the Council of Ministers of 23 March 2010‘on the grant, administration and supervision of agricultural development support from the State and from the European Union for the improvement of the agricultural and natural landscape’, a provision which concerns the repayment of aid, where the application of that provision in the specific circumstances could lead to infringement of the principle of proportionality, as that principle is interpreted in the legal system of the Member State?

      (1)  Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 153, p. 30).

      (2)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).


title: Case T-77/14: Action brought on 4 February 2014 — EE v OHIM (Device of grey pattern)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/46

         Action brought on 4 February 2014 — EE v OHIM (Device of grey pattern)
   (Case T-77/14)
   2014/C 135/58
   Language of the case: English

      Parties

      Applicant: EE Ltd (Hatfield, United Kingdom) (represented by: P. Brownlow, Solicitor)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 October 2013 given in Case R 704/2013-1.

      Pleas in law and main arguments

      Community trade mark concerned: The figurative trade mark representing a device of grey pattern for goods and services in Classes 7, 9, 16, 25, 35-39, 41, 42 and 45 — Community trade mark application No 11 388 386

      Decision of the Examiner: Found the mark applied for not eligible for registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) CTMR.


title: Case C-20/12: Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 16 January 2012 — Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin and Joëlle Hodin v State of the Grand Duchy of Luxembourg

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/13

         Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 16 January 2012 — Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin and Joëlle Hodin v State of the Grand Duchy of Luxembourg
   (Case C-20/12)
   2012/C 98/20
   Language of the case: French

      Referring court

   Tribunal administratif

      Parties to the main proceedings

      Applicants: Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin and Joëlle Hodin

      Defendant: State of the Grand Duchy of Luxembourg

      Question referred

   In the light of the Community principle of equal treatment set out in Article 7 of Regulation No 1612/68, (1) do the considerations relating to education policy and budgetary policy put forward by the State of Luxembourg, namely seeking to encourage an increase in the proportion of people with a higher education degree, which is currently inadequate compared with other countries as far as the resident population of Luxembourg is concerned, considerations which would be seriously threatened if the State of Luxembourg had to give financial aid for higher education studies to every student, without any connection with the society of the Grand Duchy, to carry out their higher education studies in any country in the world, which would lead to an unreasonable burden on the budget of the State of Luxembourg, constitute considerations, in terms of the Community case-law cited above, which are capable of justifying the difference in treatment resulting from the residence requirement imposed both on Luxembourg nationals and on nationals of other Member States in order to obtain aid for higher education studies?

      (1)  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. English Special Edition 1968(II), p. 475.


title: Case C-431/13: Order of the President of the Fourth Chamber of the Court of 5 June 2014 (request for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Vietnam Airlines Co. Ltd v Brigitta Voss, Klaus-Jürgen Voss

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/46

         Order of the President of the Fourth Chamber of the Court of 5 June 2014 (request for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Vietnam Airlines Co. Ltd v Brigitta Voss, Klaus-Jürgen Voss
   (Case C-431/13) (1)

   2014/C 315/76
   Language of the case: German
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 325, 9.11.2013.


title: Case C-55/16: Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 1 February 2016 — Evo Bus GmbH v Direcția Generală Regională a Finanțelor Publice Ploiești — Administrația Județeană a Finanțelor Publice Argeș

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/19

         Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 1 February 2016 — Evo Bus GmbH v Direcția Generală Regională a Finanțelor Publice Ploiești — Administrația Județeană a Finanțelor Publice Argeș
   (Case C-55/16)
   (2016/C 145/24)
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casație și Justiție

      Parties to the main proceedings

      Applicant: Evo Bus GmbH

      Defendant: Direcția Generală Regională a Finanțelor Publice Ploiești — Administrația Județeană a Finanțelor Publice Argeș

      Question referred

   Are the Eighth Directive (79/1072/EEC) (1) and the principle of fiscal neutrality to be interpreted as precluding/having precluded the legislation of a Member State which regulates/regulated, in the light of the principle that there should be certainty in tax matters, the conditions for eligibility for reimbursement of value added tax, such as, in the present case, the condition requiring proof of payment of the tax by suppliers?

      (1)  Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11).


title: Judgment of the Court of First Instance of 6 October 2004 in Case T-294/02: Miguel Vicente-Nuñez v Commission of the European Communities (Compliance with a judgment of the Court of First Instance — Decision on promotion — Seniority in grade — Date of taking effect)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/17

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 6 October 2004
   in Case T-294/02: Miguel Vicente-Nuñez v Commission of the European Communities (1)

   (Compliance with a judgment of the Court of First Instance - Decision on promotion - Seniority in grade - Date of taking effect)
   (2004/C 314/43)
   Language of the case: French
   In Case T-258/01: Miguel Vicente-Nuñez, an official of the Commission of the European Communities, residing in Kraainem (Belgium), represented by M.-A. Lucas, lawyer, against Commission of the European Communities (Agents: C. Berardis-Kayser and L. Lozano Palacios, with an address for service in Luxembourg) — application for annulment of the Commission's decision promoting the applicant to Grade A 5, Step 3 under the 1998 procedure, adopted in order to comply with the judgment delivered by the Court of First Instance on 9 March 2000 in Case T-10/99, in so far as it limits its effect to 1 April 2000, and, second, a claim for damages, the Court of First Instance (Third Chamber), composed of J Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, gave a judgment on 6 October 2004, in which it:

               1.

               Annuls the Commission's decision of 11 June 2002, in so far as it does not have the effect of replacing Mr Vicente-Nuñez in a situation comparable, from the point of view of his seniority in grade, to the situation in which he would have been had he been promoted to Grade A 5 on 1 April 1998;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Commission to pay the costs.

      (1)  OJ No C 289 of 23.11.2002


title: Case T-193/10: Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/46

         Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission
   (Case T-193/10)
   2010/C 179/80
   Language of the case: Italian

      Parties

      Applicant: Scuola Elementare Maria Montessori (Rome, Italy) (represented by: A. Nucara, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the Commission contained in the letter of 15 February 2010 by which the defendant rejected the applicant’s complaints.

               —

               Order the defendant to pay the costs of the present proceedings.

      Pleas in law and main arguments

   The present action is brought against the decision contained in the letter of 15 February 2010 rejecting the applicant’s complaint.
   That complaint concerns not only the exemption from the Imposta Comunale sugli Immobili (Communal Tax on Immovable Property), as in Case T-192/10 Pietro Ferracci v Commission, but also the partial exemption (at the rate of 50 %) from payment of the Imposta sul reddito delle persone giuridiche (tax on the income of legal persons) provided for under Italian tax law.
   The pleas in law and main arguments are similar to those relied on in Case T-192/10.


title: Case T-89/15: Action brought on 23 February 2015 — Niagara Bottling v OHIM (NIAGARA)

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/44

         Action brought on 23 February 2015 — Niagara Bottling v OHIM (NIAGARA)
   (Case T-89/15)
   (2015/C 118/56)
   Language of the case: English

      Parties

      Applicant: Niagara Bottling LLC (Ontario, United States) (represented by: M. Edenborough, QC)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International registration No 1 153 535 designating the European Union in respect of the word mark ‘NIAGARA’

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 12 December 2014 in Case R 784/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case T-679/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in green and white)

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/20

         Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in green and white)
   (Case T-679/15)
   (2016/C 090/27)
   Language of the case: English

      Parties

      Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Zintler, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark (Representation of a crescent in green and white) — Application for registration No 13 189 139

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 23 September 2015 in Case R 78/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 189 139) in respect of the goods in Class 5 described in the application for registration;

               —

               order the defendant to pay the costs.

      Plea(s) in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case T-360/08: Action brought on 3 September 2008 — Spain v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/46

         Action brought on 3 September 2008 — Spain v Commission
   (Case T-360/08)
   (2008/C 272/90)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Disapply the Guidelines for determining the financial corrections applicable to expenses co-financed by the Structural Funds and the Cohesion Fund in the event of failure to comply with the public procurement rules, final version of 29 November 2007, COCOF 07/0037/03-ES,

               —

               annul the Decision of the Commission of the European Communities of 25 June 2008, C(2008) 3247, in so far as it reduces financial assistance from the Cohesion Fund to project group No 2001.ES.16.C.P.E.036 (cleaning of the Hydrographic Basin of the North — Galicia-2001), and

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   This dispute concerns a group of projects for the improvement of existing and newly-constructed pumping stations, the expansion, conditioning and improvement of the drainage network and cleaning, situated in various parts of Galicia. The Community co-financing initially granted by the Commission amounted to 80 % of the public cost eligible for subsidy.
   In July 2007, the Commission sent a letter to the applicant suggesting corrections to remedy the irregularities that came to light during an earlier audit. The conclusions of the letter specified the two irregularities which together provided the reason for the contested decision and the corresponding proposals for financial corrections: the incorrect use of the emergency procedure in relation to a procurement contract and the wrong use of experience as an award criterion for various contracts. The proposals for financial correction amount to EUR 697 901 and EUR 354 591 respectively.
   The pleas in law and main arguments are those put forward in Case T-359/08 Spain v Commission.


title: Case C-348/06 P: Appeal brought on 17 August 2006 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 6 June 2006 in Case T-10/02 Girardot v Commission

text:
               14.10.2006

               EN

               Official Journal of the European Union

               C 249/5

         Appeal brought on 17 August 2006 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 6 June 2006 in Case T-10/02 Girardot v Commission
   (Case C-348/06 P)
   (2006/C 249/11)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by: D. Martin, F. Clotuche-Duvieusart, Agents)

      Other party to the proceedings: Marie-Claude Girardot
   Form of order sought
   In its appeal, the appellant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance of 6 June 2006 in Case T-10/02;

               —

               order the Commission to pay Ms Girardot the sum of EUR 23 917,40;

               —

               order that the parties should bear their own costs in the appeal proceedings and in the proceedings before the Court of First Instance of the European Communities

         Pleas in law and main arguments
   The appellant bases its appeal on a single plea, alleging infringement of Article 236 EC and of the conditions governing the liability of the Commission. The appellant essentially claims that the Court of First Instance wrongly interpreted the notion of loss of an ‘opportunity’ to fill a post as being a notion equivalent to the loss of a ‘guarantee’ to fill a post — thus failing to have regard to the discretion traditionally accorded to the Commission in recruitment — and, consequently, used an erroneous method of calculation of the sum payable by the Commission to compensate for the loss of an opportunity to be recruited resulting from an unlawful decision of the Commission. Only actual and certain damage can give rise to compensation. However, in the present case, the only actual and certain damage caused to the interested party is that which results from the Commission's failure to consider her candidature, and not that which results from a hypothetical loss of earnings.
   Moreover, the Commission notes that the criterion of loss of earnings used by the Court of First Instance to calculate the damage to be compensated is itself uncertain because if the interested party had, during the period in question, taken employment outside the Community Institutions which was better paid than the post which she could have obtained in the Commission, there would have been no loss of earnings to compensate. The method used by the Court of First Instance may therefore also lead to discrimination between candidates for the same recruitment on the basis of whether or not they occupy a post that is better paid than that to which they had the opportunity of being recruited.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 4 May 1995 in Case C-218/94: Commission of the European Communities v. Kingdom of Belgium (Failure of a Member State to fulfil obligations - Directive 91/263/EEC - Failure to transpose)

text:
No C 159/2              EN                   Official Journal of the European Communities                                     24 . 6 . 95
Advocate-General; H. A. Riihl, Principal Administrator, for                   in the Official Journal of the European Communities,
the Registrar, has given a j udgment on 4 May 1 995, in which                 the Hellenic Republic has failed to fulfil its obligations
it rules :                                                                    under Council Directive 77/62/EEC of 21 December
                                                                              1976 coordinating procedures for the award of public
                                                                              supply contracts, as last amended by Directive
The definition of 'child' for the purposes of Article 12 of                   88/29 S/EEC of 22 March 1988;
Council Regulation (EEC) No 1612/68 of 15 October 1968
on freedom of movement for workers within the
Community is not subject to the same conditions of age or               2 , orders the Hellenic Republic to pay the costs.
dependency as are the rights governed by Article 10 (1 ) and
Article 11 of that Regulation.
                                                                        (!) OJ No C 132 , 14 . 5 . 1994 .
                                                                        ( 2 ) OJ No L 13 , 15 . 1 . 1977, p. 1 .
( 1 ) OJ No C 59 , 26 . 2 . 1994 .                                      ( 3 ) OJ No L 127, 20 . 5 . 1988 , p . 1 .
( 2 ) OJ No L 257, 19 . 10 . 1968 , p . 2 .
                                                                                JUDGMENT OF THE COURT
                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber)
                           (Fifth Chamber )
                                                                                of 4 May 1995
                            of 4 May 1995
                                                                        in Case C-218/94 : Commission of the European
in     Case    C-79/94 : Commission of the              European                    Communities v. Kingdom of Belgium ( x )
             Communities v. Hellenic Republic (*)
                                                                        (Failure ofa Member State to fulfil obligations — Directive
(Failure ofa Member State to fulfil obligations — Directive                           91/263/EEC — Failure to transpose)
 77/62/EEC — Framework agreement for the exclusive
                                                                                ( 95/C 159/04 )
supply ofdressing material for use in Greek hospitals and by
                           the Greek army)
                             ( 95/C 159/03 )                                             (Language of the case: French)
                 (Language of the case: Greek)                          (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
(Provisional translation; the definitive translation will be
           published in the European Court Reports)                     In Case C-218/94 : Commission of the European
                                                                        Communities (Agents : Anders Jessen and Jean-Francis
                                                                        Pasquier ) v. Kingdom of Belgium (Agent: J. Devadder) —
In Case C-79/94 : Commission of the European
                                                                        application for a declaration that, by failing to adopt the
Communities (Agent: X. A. Yataganas ) v. Hellenic Republic
                                                                        laws, regulations and administrative measures necessary to
(Agents : V. Kontolaimos and E. -M. Mamouna ) —
                                                                        comply with Council Directive 91 /263/EEC of 29 April
application for a declaration that, by concluding a
                                                                        1991 on the approximation of the laws of the Member
framework agreement for the exclusive supply by six Greek
textile undertakings of dressing material for use in Greek              States concerning telecommunications terminal equipment,
hospitals and by the Greek army and by failing to publish
                                                                        including the mutual recognition of their conformity ( 2 ), the
the relevant notice in the Official Journal of the European
                                                                        Kingdom of Belgium has failed to fulfil its obligations under
Communities, the Hellenic Republic has failed to fulfil its
                                                                        the third paragraph of Article 189 of the EC Treaty and
                                                                        under Article 17 of the above Directive, and, in the
obligations under Council Directive 77/62/EEC of
                                                                        alternative , a declaration that, by failing to inform the
21 December 1976 coordinating procedures for the award
                                                                        Commission without -delay of the measures adopted to that
of public supply contracts ( 2 ), as last amended by Directive
88/295/EEC of 22 March 1988 ( 3 ) — the Court ( Fifth                   end, the Kingdom of Belgium has in any event failed to fulfil
                                                                        its obligations under those provisions — the Court ( Sixth
Chamber), composed of C. Gulmann, President of the
Chamber, J. C. Moitinho de Almeida ( Rapporteur ), D. A. O.             Chamber), composed of F. A. Schockweiler, President of the
                                                                        Chamber, G. F. Mancini ( Rapporteur), J. L. Murray, G.
Edward, J.-P. Puissochet and L. Sevôn, Judges; C. O. Lenz,
Advocate-General; L. Hewlett, Administrator, for the
                                                                        Hirsch and H. Ragnemalm, Judges; C. O. Lenz,
                                                                        Advocate-General; R. Grass, Registrar, has given a
Registrar, has given a judgment on 4 May 1995 , in which
it :
                                                                        judgment on 4 May 1 995 , in which it:
1 . declares that, by concluding a framework agreement for              1 , declares that, by failing to adopt within the period
      the exclusive supply by six Greek textile undertakings of               specified the laws, regulations and administrative
      dressing material for use in Greek hospitals and by the                 measures necessary to comply with Council Directive
      Greek army and by failing to publish the relevant notice                91 /263/EEC of 29 April 1991 on the approximation of
 ---pagebreak--- 24 . 6 . 95              EN                 Official Journal of the European Communities                                 No C 159/3
      the laws of the Member States concerning                              Republic of Germany has failed to fulfil its obligations
      telecommunications terminal equipment, including the                  under Directives 75/442/EEC and 78/319/EEC;
      mutual recognition of their conformity, the Kingdom of
      Belgium has failed to fulfil its obligations under               2 , for the rest, dismisses the application;
      Article 1 89 of the EC Treaty and Article 1 7 of Directive
      9 1 /263 /EEC;
                                                                       3 , orders the parties to bear their own costs.
2 , orders the Kingdom of Belgium to pay the costs.
                                                                       (M   OJ No  C 35 , 9 . 2 . 1993 .
                                                                       (2)  OJ No  L 194 , 25 . 7 . 1975 , p . 39 .
( ! ) OJ No C 275 , 1 . 10 . 1994 .                                    (3 ) OJ No  L 84, 31 . 3 . 1978 , p . 43 .
( 2 ) OJ No L 128 , 23 . 5 . 1991 , p . 1 .                            (4)  OJ No  L 326, 13 . 12 . 1984 , p . 31
                                                                       (5)  OJ No  L 181 , 4 . 7 . 1986 , p . 13 .
                 JUDGMENT OF THE COURT
                          of 10 May 1995                                             JUDGMENT OF THE COURT
in Case C-422/92 : Commission of the European                                                     of 10 May 1995
       Communities v. Federal Republic of Germany (*)                  in Case C-384/93 (reference for a preliminary ruling from
(Failure by a Member State to fulfil its obligations —                 the College van Beroep voor het Bedrijfsleven ): Alpine
 Transposition of the Directives on waste, toxic and                           Investments BV v. Minister van Financiën (M
dangerous waste and the transfrontier shipment of                      (Freedom to provide services — Article 59 of the EEC
                          hazardous waste)                             Treaty — Prohibition of cold calling by telephone for
                            ( 95/C 159/05 )                                                       financial services)
                                                                                ( 95/C 159/06 )
                  (Language of the case: German)
                                                                                (Language of the case: Dutch)
(Provisional translation; the definitive translation will be
            published in the European Court Reports)                   (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
In Case C-422/92 : Commission of the European
Communities (Agents : Rolf Wàgenbaur, assisted by                      In Case C-384/93 : reference to the Court under Article 177
Alexander Bohlke, of the Brussels Bar ) v. Federal Republic
                                                                       of the EEC Treaty from the College van Beroep voor het
of Germany (Agents : Ernst Roder and Ludger-Anselm
                                                                       Bedrijfsleven ( Administrative Court for Trade and Industry)
Versteyl, Rechtsanwalt, Burgwedel ) — application for a
                                                                       for a preliminary ruling in the proceedings pending before
declaration that, by failing to bring into force all the
                                                                       that court between Alpine Investments BV and Minister van
measures needed to transpose Council Directive
                                                                       Financiën — on the interpretation of Article 59 of the EEC
75/442/EEC of 15 July 1975 on waste ( 2), Council Directive
                                                                       Treaty — the Court, composed of G. C. Rodriguez Iglesias,
78/319/EEC of 20 March 1978 on toxic and dangerous
waste ( 3 ), Council Directive 84/63 1 /EEC of 6 December              President, F. A. Schockweiler, P. J. G. Kapteyn and C.
                                                                       Gulmann, Presidents of Chambers, G. F. Mancini, J. C.
1984 on the supervision and control within the European
                                                                       Moitinho de Almeida, J. L. Murray, D. A. O. Edward
Community of the transfrontier shipment of hazardous
waste ( 4 ) and Council Directive 86/279/EEC of 12 June                ( Rapporteur ) and J. -P. Puissochet, Judges; F. G. Jacobs,
                                                                       Advocate-General; L. Hewlett, Administrator, for the
1986 amending Directive 84/631/EEC ( 5 ), the Federal
Republic of Germany has failed to fulfil its obligations               Registrar, gave a judgment on 10 May 1995 , the operative
                                                                       part of which is as follows :
under the EEC Treaty — the Court, composed of G. C.
Rodriguez Iglesias , President, F. A. Schockweiler and C.
Gulmann ( Presidents of Chambers ), G. F. Mancini, J. C.               1 . On a proper construction, Article 59 of the EEC Treaty
Moitinho de Almeida, J. L. Murray, D. A. O. Edward , J. -P.                 covers services which the provider offers by telephone to
Puissochet ( Rapporteur ) and G. Hirsch, Judges ; F. G.                     potential recipients established in other Member States
Jacobs , Advocate-General; D. Louterman-Hubeau,                             and provides without moving from the Member State in
Principal Administrator, for the Registrar, has given a                     which he is established.
judgment on 10 May 1995 , in which it:
                                                                       2 . Rules of a Member State which prohibit providers of
1 , declares that, by excluding certain categories of                       services established in its territory from making
      recyclable waste from the scope of its legislation on the             unsolicited telephone calls to potential clients
      disposal of waste and by failing to draw up, keep up to               established in other Member States in order to offer their
      date, publish or notify to the Commission within the                  services constitute a restriction on freedom to provide
      prescribed period the plans for the disposal of toxic and             services within the meaning of Article 59 of the
      dangerous waste for certain regions, the Federal                      Treaty.


title: Case T-461/11: Action brought on 22 August 2011 — Natura Selection v OHIM — Menard (natura)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/25

         Action brought on 22 August 2011 — Natura Selection v OHIM — Menard (natura)
   (Case T-461/11)
   2011/C 340/52
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Natura Selection SL (Barcelona, Spain) (represented by: E. Sugrañes Coca, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Ernest Menard SA (Bourseul, France)

      Form of order sought

   The applicant claims that the Court should:

               —

               admit the present application;

               —

               require OHIM to produce in these proceedings the evidence of reputation to which the applicant referred during the appeal procedure in Case R 2454/2010-2 and which is identified in paragraph 39 of the application;

               —

               annul the decision of the Second Board of Appeal of OHIM of 8 June 2011 in Case R 2454/2010-2 and the decision of the Opposition Division of 21 October 2010 in Case B 1072513;

               —

               grant full registration to figurative mark No 4 713 368‘natura’, refused by opposition B 1072513 for goods in Class 20;

               —

               order OHIM to pay all the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Natura Selection

      Community trade mark concerned: Figurative mark ‘natura’ for goods and services in Classes 14, 20, 25 and 35.

      Proprietor of the mark or sign cited in the opposition proceedings: Ernest Menard SA.

      Mark or sign cited in opposition: Word mark ‘natura’ for goods and services in Classes 19 and 20.

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) given that there is no likelihood of confusion between the trade marks at issue.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case C-280/15: Request for a preliminary ruling from the Harju Maakohus (Estonia) lodged on 10 June 2015 — Irina Nikolajeva v OÜ Multi Protect

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/11

         Request for a preliminary ruling from the Harju Maakohus (Estonia) lodged on 10 June 2015 — Irina Nikolajeva v OÜ Multi Protect
   (Case C-280/15)
   (2015/C 262/15)
   Language of the case: Estonian

      Referring court

   Harju Maakohus

      Parties to the main proceedings

      Applicant: Irina Nikolajeva

      Defendant: OÜ Multi Protect

      Questions referred

   The following questions on the interpretation of Council Regulation (EC) No 207/2009 (1) of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1) are referred to the Court of Justice of the European Union for a preliminary ruling:

               1)

               Is a Community trade mark court required to issue the order provided for in Article 102(1) if the applicant does not seek such an order in his claims and the parties do not allege that the defendant has infringed or threatened to infringe a Community trade mark after a specific date in the past, or does failure to make an application to that effect and to refer to this fact represent a ‘special reason’ within the meaning of the first sentence of this provision?

               2)

               Is Article 9(3) to be interpreted as meaning that the proprietor of a Community trade mark may demand only reasonable compensation from a third party on the basis of the second sentence of Article 9(3) for use of a sign identical with the trade mark in the period from the publication of the application for registration of the trade mark until the publication of the registration of the trade mark, but not compensation for the fair market value of what has been gained as a result of the infringement and for damage, and that there is also no right to reasonable compensation for the period prior to publication of the application for registration of the trade mark?

               3)

               What type of costs and other forms of compensation are included in reasonable compensation under Article 9(3), second sentence, and can this also encompass in certain circumstances (and if so, in which circumstances) compensation for non-material harm caused to the proprietor of the trade mark?

      (1)  OJ 2009 L 78, p. 1.


title: Case F-93/08: Judgment of the Civil Service Tribunal (First Chamber) of 10 November 2009 — N v European Parliament (Staff case — Officials — Reports — Staff report — Action for annulment — Admissibility — Statement of reasons — Manifest error of assessment — Definition of targets to be achieved)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/76

         Judgment of the Civil Service Tribunal (First Chamber) of 10 November 2009 — N v European Parliament
   (Case F-93/08) (1)

   (Staff case - Officials - Reports - Staff report - Action for annulment - Admissibility - Statement of reasons - Manifest error of assessment - Definition of targets to be achieved)
   2010/C 24/140
   Language of the case: French

      Parties

      Applicant: N (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

      Defendant: European Parliament (represented by: K. Zejdová, R. Ignătescu and S. Seyr, Agents)

      Re:

   Annulment of the applicant’s staff report for the period from 1 January 2007 to 30 April 2007.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders N to pay all the costs.

      (1)  OJ C 44, 21.2.2009, p. 75.


title: Case T-149/07: Action brought on 7 May 2007 — ThyssenKrupp Elevator v Commission

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/33

         Action brought on 7 May 2007 — ThyssenKrupp Elevator v Commission
   (Case T-149/07)
   (2007/C 155/60)
   Language of the case: German
   Parties

      Applicant: ThyssenKrupp Elevator AG (Düsseldorf, Germany) (represented by: T. Klose and J. Ziebarth, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the contested decision in so far as it relates to the applicant;

               —

               in the alternative, reduce as appropriate the amount of the fine imposed jointly and severally on the applicant in the contested decision;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant is challenging Commission Decision C(2007) 512 final of 21 February 2007 in Case COMP/E-1/38.823 — PO/Elevators and Escalators. In the contested decision, fines were imposed on the applicant and other undertakings on the ground of their participation in cartels relating to the installation and maintenance of lifts and escalators in Belgium, Germany and Luxembourg. In the view of the Commission, the undertakings concerned acted in breach of Article 81 EC.
   In support of its action, the applicant puts forward the following pleas in law:

               —

               Lack of competence on the part of the Commission in the absence of any significance at inter-State level of the local infringement of which the applicant is accused;

               —

               Infringement of the ne bis in idem principle inasmuch as the Commission failed to take account of the amnesty decisions which the national cartel authorities in Belgium and Luxembourg adopted in the applicant's favour before the present proceedings were instituted;

               —

               Absence of the conditions required to establish that the applicant bears joint and several liability with its subsidiaries, inasmuch as it was not itself involved in the offences, its subsidiaries operate on a legally and economically independent basis and there is no objective justification for extending liability to the applicant;

               —

               Disproportionate nature of the basic amounts used for the calculation of the fine when compared with the de facto market volume concerned;

               —

               Disproportionate nature of the deterrent multiplication factor, inasmuch as this differs significantly from the treatment accorded to other undertakings of comparable scale in comparable cases decided at the same time;

               —

               Lack of justification for the repeat offender surcharge in the context of the fine calculation by reason of errors of law in regard to the inclusion of previous fines;

               —

               Breach of Article 23(2) of Regulation (EC) No 1/2003 (1), inasmuch as, with regard to the upper fine limit of 10 % of the undertaking's turnover, the fine ought to have been calculated solely on the basis of the turnover of the subsidiaries concerned;

               —

               Legally defective application of the Notice on immunity from fines and reduction of fines (2) inasmuch as insufficient account was taken of the added value represented by the applicant's cooperation.

      (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).

      (2)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).


title: Case C-122/03: Action brought on 19 March 2003 by the Commission of the European Communities against the French Republic

text:
C 112/18                 EN                        Official Journal of the European Union                                         10.5.2003
The Commission of the European Communities claims that                     Action brought on 19 March 2003 by the Commission of
the Court should:                                                           the European Communities against the French Republic
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with                                         (Case C-122/03)
      Commission Directive 2000/52/EC of 26 July 2000 on
      the transparency of financial relations between Member
      States and public undertakings as well as on financial                                         (2003/C 112/32)
      transparency within certain undertakings (1) or, in any
      event, by failing to notify them to the Commission,
      France has failed to fulfil its obligations under that
      directive;
                                                                           An action against the French Republic was brought before the
—     order France to pay the costs.                                       Court of Justice of the European Communities on 19 March
                                                                           2003 by the Commission of the European Communities,
                                                                           represented by H. Støvlbæk and B. Stromsky, acting as Agents,
                                                                           with an address for service in Luxembourg.
Pleas in law and main arguments
The period prescribed for transposition expired on 31 January              The applicant claims that the Court should:
2001.
                                                                           1.    Declare that, by imposing, pursuant to Article R. 5142-
( 1) OJ L 193 of 29 July 2002, p. 78.                                            15 of the Public Health Code, on traders importing or
                                                                                distributing in France medicinal products which are
                                                                                already covered by a marketing authorisation for the
                                                                                French or Community market the requirement that they
                                                                                submit, at the request of the monitoring authorities,
                                                                                either a certified copy issued by the French agency for
Action brought on 18 March 2003 by the Commission of                             health products sanitary safety (FAHPSS) of the French
the European Communities against the Kingdom of Spain                            marketing authorisation or of the registration of the
                                                                                medicinal product, or a document issued by the FAHPSS
                           (Case C-120/03)                                       attesting to the fact that the imported medicinal product
                                                                                has obtained a marketing authorisation issued by the
                           (2003/C 112/31)                                       European Community, the French Republic has failed to
                                                                                fulfil its obligations under Article 28 of the EC Treaty;
An action against the Kingdom of Spain was brought before                  2.    Order the French Republic to pay the costs.
the Court of Justice of the European Communities on 18 March
2003 by the Commission of the European Communities,
represented by K. Banks and J.L. Buendía Sierra, acting as
Agents, with an address for service in Luxembourg.
                                                                           Pleas in law and main arguments
The applicant claims that the Court should:
                                                                           So far as concerns the importation into France of pharmaceuti-
1.    Declare that, by failing to adopt the laws, regulations
                                                                           cal products already covered by a marketing authorisation for
      and administrative provisions necessary to comply with
                                                                           the French or Community market, Article R. 5142-15 of the
      Directive 98/71/EC ( 1) of the European Parliament and of
                                                                           Public Health Code requires the submission at the request of
      the Council of 13 October 1998 on the legal protection
                                                                           customs officers of either a certified copy of the marketing
      of designs or, in any event, by failing to communicate
                                                                           authorisation or of the registration of the medicinal product
      them to the Commission, the Kingdom of Spain has
                                                                           or a document attesting to the fact that the imported medicinal
      failed to fulfil its obligations under that directive;
                                                                           product has obtained a marketing authorisation issued by the
2.    Order the Kingdom of Spain to pay the costs.                         European Community, each of those documents being issued
                                                                           by the FAHPSS.
Pleas in law and main arguments
                                                                           The effects of that provision on traders wishing to import and
                                                                           distribute pharmaceutical products in France may be resumed
The period prescribed for implementation of the directive                  as follows: (i) formalities, costs and the time entailed by the
expired on 28 October 2001.                                                granting procedure are imposed on traders which they are
                                                                           obliged to bear, on pain of sanctions, throughout its term; (ii)
( 1) OJEC L 289 of 28 October 1998, p. 28.                                 those same traders are obliged to be constantly in possession
                                                                           of documents which could be potentially numerous and
                                                                           voluminous.
 ---pagebreak--- 10.5.2003               EN                       Official Journal of the European Union                                          C 112/19
Accordingly, the Commission is of the view that                          Pleas in law and main arguments
Article R. 5142-15 of the French Public Health Code is such
as to hinder, directly and indirectly, actually or potentially,
intra-Community trade and that it therefore amounts to a
measure of an effect equivalent to a quantitative restriction,           In August 1997 Irish Sugar complied with the Commission
prohibited by Article 28 of the EC Treaty.                               decision 97/624/EC of 14 May 1997 and paid the fine imposed
                                                                         on it. The Court of First Instance subsequently reduced the fine
                                                                         by judgment of 7 October 1999. When submitting details
The French legislation is discriminatory and can therefore be            about its bank account so that the part of the fine unduly
justified only on grounds of public interest as provided for in          levied could be reimbursed, Greencore (Irish Sugar’s mother
Article 30 of the EC Treaty.                                             company) also asked for confirmation that interest would be
                                                                         paid. On 4 January 2000 the Commission reimbursed the
                                                                         principal amount without interest thus, in the Commission’s
However, even leaving aside its discriminatory character, it             view, refusing to grant the request concerning interest.
must be pointed out that the measure in issue is unjustifiable.
In the internal market, the mere fact that a Community
product originates abroad cannot give rise to a suspicion that
it is non-compliant.                                                     Greencore did not react until after the judgment in case T-171/
                                                                         99 ‘Corus’ of 10 October 2001, in which the Court of First
                                                                         Instance stated that the Commission would have to pay interest
Even supposing that that measure could have been prompted                on a fine unduly levied. On 1 November 2001, almost two
by the objective of protecting human health and life, the                years after reimbursement of the part of the fine unduly levied,
objective of verifying whether a marketing authorisation has             Greencore, referring to the ‘Corus’ judgment, requested the
been granted could be attained as effectively by a system which          payment of interest on the amount of the fine reimbursed. By
is less of an obstacle to intra-Community trade, for example             letter of 11 February 2002 the Accounting Officer of the
by a system based on the checking of the number of the                   Commission informed Greencore that, when it requested the
marketing authorisation appearing on the external packaging              payment of interest on the amount of the fine unduly levied
of the medicinal product.                                                on 27 October 1999, the Commission only reimbursed the
                                                                         principal sum and had, therefore, already refused to pay
                                                                         interest at that date.
                                                                         Before the Court of First Instance the Commission raised an
                                                                         objection of inadmissibility arguing that the letter of 11 Febru-
Appeal brought on 19 March 2003 by the Commission of                     ary 2002 had not in any way changed the applicant’s legal
the European Communities against the order made on                       position. The Commission submitted that the letter merely
7 January 2003 by the Second Chamber of the Court of                     informed the applicant that it had failed to attack the
First Instance of the European Communities in case T-135/                Commission decision of 4 January 2000 not to grant interest
02 (1) between Greencore Group plc and the Commission                    and was therefore precluded from attacking that decision
                 of the European Communities                             now, taking advantage of a judgment obtained by another
                                                                         undertaking in a separate Court procedure.
                         (Case C-123/03 P)
                          (2003/C 112/33)                                The Commission submits that the Court of First Instance
                                                                         committed an error in law in rejecting the objection of
                                                                         inadmissibility. In the Commission’s view the Court of First
                                                                         Instance infringed Article 230 EC by declaring admissible an
An appeal against the order made on 7 January 2003 by the                action for annulment against an act that is not challengeable,
Second Chamber of the Court of First Instance of the European            since it does not bring about a distinct change in the applicant’s
Communities in case T-135/02 between Greencore Group plc                 legal position. According to the Commission the letter of
and the Commission of the European Communities, was                      11 February is a simple information telling the applicant that
brought before the Court of Justice of the European Communi-             it should have attacked the decision of 4 January 2000 refusing
ties on 19 March 2003 by the Commission of the European                  interest. It does not alter the applicant’s position in any way,
Communities, represented by K. Wiedner, acting as agent, with            since the Commission does not consider or re-consider the
an address for service in Luxembourg.                                    applicant’s right to receive payment of interest. There are,
                                                                         furthermore, no substantial new facts which should have
                                                                         prompted the Commission to re-examine its initial position.
The Appellant claims that the Court should:
—      annul the order of 7 January and declare the application
       inadmissible;                                                     (1 ) OJ C 169, 13.07.2002, p. 38.
—      order the applicant to bear the costs incurred before the
       Court of First Instance as well as the Court of Justice.


title: Case F-17/09: Order of the Civil Service Tribunal (First Chamber) of 30 November 2009 — Meister v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Staff cases — Officials — Action for annulment — Carry-over of promotion points acquired earlier — Absence of act having adverse effect — Action for damages — Damages not quantified — Manifest inadmissibility)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/79

         Order of the Civil Service Tribunal (First Chamber) of 30 November 2009 — Meister v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case F-17/09) (1)

   (Staff cases - Officials - Action for annulment - Carry-over of promotion points acquired earlier - Absence of act having adverse effect - Action for damages - Damages not quantified - Manifest inadmissibility)
   2010/C 24/149
   Language of the case: German

      Parties

      Applicant: Herbert Meister (Muchamiel, Spain) (represented by: H.-J. Zimmermann, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: I. de Medrano Caballero, Agent, assisted by D. Waelbroeck, lawyer)

      Re:

   Annulment of the dismissal of the applicant’s complaint regarding the defective and incorrect periodical report for the year 2008 and application for damages for the material loss allegedly suffered.

      Operative part of the order

               1.

               Mr Meister’s action is dismissed as manifestly inadmissible;

               2.

               Mr Meister is ordered to bear his own costs and to pay the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

      (1)  OJ C 113, 16.05.2009, p. 46


title: Case F-29/09: Judgment of the Civil Service Tribunal (Third Chamber) of 30 September 2010 — Lebedef and Jones v Commission (Civil Service — Officials — Remuneration — Article 64 of the Staff Regulations — First subparagraph of Article 3(5) and Article 9 of Annex XI to the Staff Regulations — Weighting — Equal treatment)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/60

         Judgment of the Civil Service Tribunal (Third Chamber) of 30 September 2010 — Lebedef and Jones v Commission
   (Case F-29/09) (1)

   (Civil Service - Officials - Remuneration - Article 64 of the Staff Regulations - First subparagraph of Article 3(5) and Article 9 of Annex XI to the Staff Regulations - Weighting - Equal treatment)
   2010/C 328/97
   Language of the case: French

      Parties

      Applicant: Georgio Lebedef (Senningerberg, Luxembourg) and Trevor Jones (Ernzen, Luxembourg) (represented by: F. Frabetti and J.-Y. Vergnaud, lawyers)

      Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: K. Zieleśkiewicz and M. Bauer, acting as Agents)

      Re:

   Application for annulment of the decision refusing to bring the purchasing power of remunerations in Luxembourg to a level equivalent to that of the purchasing power of remunerations in Brussels and, in the alternative, application for annulment of the applicants’ remuneration statements issued with effect from 15 June 2008.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Lebedef and Mr Jones to pay all the costs, with the exception of those incurred by the Council of the European Union;

               3.

               Orders the Council of the European Union, intervener, to bear its own costs.

      (1)  OJ C 129, 6.6.2009, p. 21.


title: Case T-509/08: Action brought on 7 November 2008 — Ryanair/Commission

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/44

         Action brought on 7 November 2008 — Ryanair/Commission
   (Case T-509/08)
   (2009/C 32/85)
   Language of the case: English
   Parties

      Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

      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 documents for which access was requested by the applicant in an application dated 20 June 2008 is void and that the Commission's decision of 26 September 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 26 September 2008 refusing access to the documents for which access was requested by the applicant in an application dated 20 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 Bratislava airport. The said decision was followed by the express decision of 26 September 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.


title: Case T-204/10: Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/51

         Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS)
   (Case T-204/10)
   2010/C 179/88
   Language in which the application was lodged: English

      Parties

      Applicant: Lancôme parfums et beauté & Cie (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (Munich, Germany)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 February 2010 in case R 238/2009-2;

               —

               Annul the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in case 990 C;

               —

               Dismiss the request introduced by the other party to the proceedings before the Board of Appeal for a declaration of invalidity of the applicant's CTM No 1327410 COLOR FOCUS to the extent the request is based on the Community trade mark FOCUS No 453720;

               —

               Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

      Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘COLOR FOCUS’ for goods in class 3 — Community trade mark registration No 1327410

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 453720 of the word mark ‘FOCUS’ for goods and services in classes 3, 6, 7, 9, 14, 16, 21, 25, 28, 29, 32, 33, 35, 38, 39, 41, 42; German mark registration No 39407564 of the word mark ‘FOCUS’, for a wide variety of goods and services in a total of 24 classes

      Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law:

               The applicant advances two pleas in law in support of its application.

               On the basis of its first plea, the applicant claims that the contested decision violates Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation (EC) No 207/2009 (hereinafter ‘the CTMR’) in finding a likelihood of confusion between ‘COLOR FOCUS’ and ‘FOCUS’. According to the applicant, the Board of Appeal failed by not providing a specific assessment of such a finding, which requires an analysis of the degree of distinctiveness and of the degree of similarity, in a way that the contested decision is lacking an essential element in its reasoning.

               By its second plea, the applicant considers that the contested decision failed to take into account a general principle of law that no person is entitled to rely on a formal legal position when it constitutes an abuse of right.


title: Case C-400/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 July 2011 — Josef Egbringhoff v Stadtwerke Ahaus GmbH

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/18

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 July 2011 — Josef Egbringhoff v Stadtwerke Ahaus GmbH
   (Case C-400/11)
   2011/C 311/30
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Josef Egbringhoff

      Defendant: Stadtwerke Ahaus GmbH

      Question referred

   Is Article 3(5) of, in conjunction with point (b) and/or (c) of Annex A to, Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules (1) for the internal market in electricity and repealing Directive 96/92/EC to be interpreted as meaning that a provision of national law on price variations in electricity delivery contracts with domestic customers, who are supplied electricity within the framework of the general duty to supply (standard-rate customers), satisfies the transparency requirements if, in that provision, the grounds, preconditions and scope of the price variation are not stipulated but customers are assured that electricity suppliers will give them sufficient advance notice of any price increases and they have the right to terminate the contract if they are unwilling to accept the amended contractual terms and conditions as communicated?

      (1)  Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37).


title: Case T-297/06: Action brought on 17 October 2006 — Majątek Hutniczy v Commission

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/25

         Action brought on 17 October 2006 — Majątek Hutniczy v Commission
   (Case T-297/06)
   (2006/C 310/48)
   Language of the case: French
   Parties

      Applicant: Majątek Hutniczy sp. z o.o. (Częstochowa, Poland) (represented by: C. Rapin and E. Van den Haute, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare this action admissible;

               —

               annul Articles 3 and 4 of the Commission Decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa S.A. (notified under document number C (2005) 1962);

               —

               in the alternative, declare that on the date on which this action is brought there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and that the amounts of that aid and interest are therefore not payable;

               —

               in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of interest back to the Commission for a fresh decision in accordance with Annex A to this application or with such other consideration as the Court may indicate in the grounds of its judgment;

               —

               in any event, order the Commission to pay all of the costs;

               —

               if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments
   By its decision C (2005) 1962 final of 5 July 2005 (State Aid No C 20/04, ex NN 25/04) the Commission declared certain restructuring aid granted by Poland to the steel producer Huta Częstochowa S.A. to be incompatible with the common market and ordered its recovery. The applicant is one of the successors to the aid beneficiary which, in the context of the restructuring of Huta Częstochowa S.A., received certain assets and liabilities from that company to be bought up subsequently by the company Industrial Union of Donbass through its subsidiary ISD Polska. The applicant is included in the contested decision among the companies required jointly and severally to repay the aid declared incompatible with the common market.
   In support of its action for the partial annulment of the decision, the applicant relies on four pleas in law.
   By its first plea, it claims that the Commission made a manifest error of assessment of the facts decisive for the outcome of the investigation. It maintains that, once the assets of the original beneficiary of the incompatible aid are sold, those assets having been bought by ISD Polska (and Donbass), it is the vendor of the original aid beneficiary that retains the benefit of that aid and must ensure that it is repaid. The applicant claims that in this case, if the Commission had correctly established the relevant facts concerning the sale of the assets of Huta Częstochowa, through, among others, Majątek Hutniczy, to ISD Polska (and Donbass), it would have come to the view that, because the means of production of Huta Częstochowa were acquired at a price reflecting the market price, restitution of the aid would thereby already have been made to the vendor. According to the applicant, the Commission was therefore in breach of its obligation to examine, carefully and impartially, all the relevant facts of the case.
   By its second plea, the applicant claims that the Commission infringed Protocol No 8 to the Treaty of Accession, on the restructuring of the Polish steel industry (1), by interpreting purely literally certain of its provisions which, in the view of the applicant, it should have interpreted in the light of the objectives pursued by that protocol and in consideration of the background to its adoption. That allegedly incorrect interpretation led the Commission to require, by its decision, repayment of State aid received before the adoption of Protocol No 8 by companies not included in Annex 1, which designates eight beneficiary companies which are eligible for aid from Poland in derogation from Articles 87 EC and 88 EC. It also claims that, as Protocol No 8 does not expressly state that it applies retroactively for a specific period, the Commission's interpretation of that protocol infringed several general principles such as those of non-retroactivity and of legal certainty. The applicant claims that Protocol No 8, on a correct interpretation, does not empower the Commission to call for the repayment of State aid received before its adoption by companies not referred to in Annex 1. It thus concludes that, having acted in that way without a legal basis, the Commission encroached upon the temporal competence of other Community institutions.
   The third plea, invoked as an alternative plea if the Court should find that the Commission has properly established the facts and correctly interpreted Protocol No 8, alleges infringement of Article 14(1) of Regulation No 659/1999 (2). The applicant submits that, by adopting the decision to recover the aid, the Commission is acting at variance with the principles of equal treatment, legitimate expectations and legal certainty.
   By its fourth plea, the applicant submits, in support of its alternative request for annulment of the second subparagraph of Article 3(2) of the contested decision, that the Commission infringed Regulation No 794/2004 (3) when calculating the interest rate applicable to the recovery of the aid in the present case.

      (1)  OJ 2003 L 236, p. 948.

      (2)  Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty, (OJ 1999 L 83, p.1).

      (3)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (OJ L 140 of 30.4.2004, p. 1).


title: Case T-443/13: Judgment of the General Court of 21 January 2016 — Makhlouf v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Obligation to state reasons — Rights of defence — Right to effective judicial protection — Manifest error of assessment — Right to property — Right to respect for private life — Proportionality)

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/13

         Judgment of the General Court of 21 January 2016 — Makhlouf v Council
   (Case T-443/13) (1)

   ((Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Obligation to state reasons - Rights of defence - Right to effective judicial protection - Manifest error of assessment - Right to property - Right to respect for private life - Proportionality))
   (2016/C 090/18)
   Language of the case: French

      Parties

      Applicant: Mohammad Makhlouf (Damas, Syria) (represented by: C. Rygaert and G. Karouni, lawyers)

      Defendant: Council of the European Union (represented by: M.-M. Joséphidès and G. Étienne, acting as Agents)

      Re:

   Application for partial annulment of Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14) in so far as that act concerns the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Mohammad Makhlouf to bear his own costs and to pay the costs incurred by the Council of the European Union.

      (1)  OJ C 325, 9.11.2013.


title: Case T-336/17: Action brought on 30 May 2017 — The GB Foods v EUIPO — Yatecomeré (YATEKOMO)

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/12

         Action brought on 30 May 2017 — The GB Foods v EUIPO — Yatecomeré (YATEKOMO)
   (Case T-336/17)
   (2017/C 318/17)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: The GB foods, SA (L’Hospitalet de Llobregat, Spain) (represented by: M. Buganza González and E. Torner Lasalle, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Yatecomeré, SL (Ribadumia, Spain)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘YATEKOMO’ — EU trade mark No 11 703 568

      Procedure before EUIPO: Invalidity proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 13 March 2017 in Case R 1506/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               declare admissible the present application challenging the decision of the Board of Appeal of EUIPO of 13 March 2017 (Case R 1506/2016-5), and grant the application by annulling the Board of Appeal’s decision and by restoring and confirming the validity of trade mark No 11 703 568 ‘YATEKOMO’ for all of the goods in Classes 29 and 30 in respect of which the mark was applied for initially;

               —

               declare that the mark ‘YATEKOMO’ is well known;

               —

               order EUIPO to make available to the Court all the documentation which was provided for that registration and which comprised the file for the annulment proceedings before EUIPO in respect of the mark ‘YATEKOMO’ in order that all of the documents produced in the proceedings may be analysed;

               —

               order EUIPO to pay the costs pursuant to Article 134 of the Rules of Procedure of the General Court.

      Pleas in law

               —

               The trade mark ‘YATEKOMO’ does not infringe Article 8 of Regulation No 207/2009. The EU word mark does not conflict with the earlier Spanish composite mark ‘ya te comeré el vacío que te llena’.

               —

               The reputation acquired by mark No 11 703 568 ‘YATEKOMO’