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C 267/76 EN Official Journal of the European Union 7.11.

2009

As the basis of its action, the applicant claims that the Pleas in law and main arguments
defendant incorrectly applied Article 87(1) EC in a number of
respects. In that regard, it is submitted, inter alia, that the Registered Community trade mark in respect of which a declaration of
defendant wrongly categorises conservation organisations as invalidity has been sought: The coloured figurative mark ‘Pago’ for
undertakings and wrongly failed to carry out the necessary goods in Class 32 (Community trade mark No 915 488)
overall assessment of the measures referred to. Furthermore,
the conservation organisations have obtained no material
advantage for State aid purposes from the measures referred Proprietor of the Community trade mark: The applicant
to. The applicant further complains of an incorrect application
of the fourth criterion laid down by the Court of Justice in Case
C-280/00 Altmark Trans und Regierungspräsidium Magdeburg Applicant for the declaration of invalidity: Tirol Milch registrierte
[2003] ECR I-7747. Genossenschaft mit beschränkter Haftung

In the alternative, a breach of the duty to state reasons laid


down in Article 253 EC is claimed. Decision of the Cancellation Division: Revocation in part of the
Community trade mark

Decision of the Board of Appeal: Annulment in part of the


decision of the Cancellation Division and revocation of the
Community trade mark

Action brought on 3 September 2009 — PAGO


Pleas in law:
International v OHIM — Tirol Milch (Pago)

(Case T-349/09)
— Infringement of Article 51 in conjunction with Article
(2009/C 267/136) 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as
it was incorrectly deemed not to have been proved that the
trade mark at issue in the proceedings had been used in
Language in which the application was lodged: German such a way as to preserve the rights of the proprietor;

Parties
Applicant: PAGO International GmbH (Klagenfurt, Austria) — Infringement of Article 75 of Regulation No 207/2009 and
(represented by: C. Hauer and C. Schumacher, lawyers) of fundamental Community rights, in particular the right to
a fair hearing.

Defendant: Office for Harmonisation in the Internal Market


(Trade Marks and Designs)
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the
Community trade mark (OJ 2009 L 78, p. 1).
Other party to the proceedings before the Board of Appeal of OHIM:
Tirol Milch reg.Gen.mbH Innsbruck (Innsbruck, Austria)

Form of order sought


Action brought on 4 September 2009 — ICO Satellite v
— Amend the decision of the Fourth Board of Appeal of the Commission
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 1 July 2009 concerning cancellation
proceedings No 2025 C (Community trade mark No (Case T-350/09)
915 488) so as to dismiss the appeal by Tirol Milch regis­
trierte Genossenschaft mit beschränkter Haftung against the (2009/C 267/137)
decision of the Cancellation Division of 4 August 2008, and
order Tirol Milch registrierte Genossenschaft mit Language of the case: English
beschränkter Haftung to pay the costs of the appeal
proceedings; Parties
Applicant: ICO Satellite Ltd (Slough, United Kingdom) (repre­
— in the alternative, annul the decision of the Fourth Board of sented by: S. Tupper, Solicitor)
Appeal and refer the case back to the Office for Harmon­
isation in the Internal Market (Trade Marks and Designs) for
a fresh decision. Defendant: Commission of the European Communities
7.11.2009 EN Official Journal of the European Union C 267/77

Form of order sought Action brought on 14 September 2009 — Novácke


chemické závody/Commission
— order that Decision No 2009/449/EC of 13 May 2009 on
the selection of operators of pan-European Systems
providing mobile satellite services (MSS) is void in (Case T-352/09)
accordance with the provisions of Articles 230 and 231 EC;
(2009/C 267/138)

Language of the case: English


— order that the costs of the present action be paid by the
defendant and any other orders it may deem appropriate. Parties
Applicant: Novácke chemické závody, a.s. (Nováky, Slovak
Republic) (represented by: A. Černejová, lawyer)

Pleas in law and main arguments Defendant: Commission of the European Communities
By means of its application, the applicant seeks the annulment
of Commission Decision No 2009/449/EC of 13 May 2009 on
the selection of operators of pan-European Systems providing Form of order sought
mobile satellite services (“MSS”) (1).
— Annul the contested decision with respect to the applicant
and consequently cancel the fine imposed on the applicant;
or
It is submitted that the contested decision has the effect of
depriving the applicant of property rights legitimately accrued — in the alternative, cancel the fine imposed on the applicant
to it under international law. The applicant further claims that in the Article 2 of the decision or at least significantly
the contested decision is unlawful because the Commission has: decrease the fine imposed on the applicant; and

— order the Commission to pay the costs.


(a) discriminated against the applicant by involving a former
chairman of the Inmarsat Ventures Limited Council
(“Inmarsat”) in the decision-making process, thereby Pleas in law and main arguments
infringing essential procedural requirements and breaching By means of the present application, the applicant seeks the
the principle of equal treatment; and annulment of Commission decision of 22 July 2009 (Case No
COMP/F/39.396 — Calcium and magnesium reagents for the
steel and gas industries) where the Commission found the
applicant together with other undertakings liable for the
(b) acted unreasonably, by selecting Inmarsat and Solaris Mobile infringement of Article 81 EC and Article 53 EEA through
Limited over the applicant when the latter is allegedly in an market sharing, quotas, customer allocation, price fixing and
objectively better position to provide MSS. exchanges of sensitive commercial information between
suppliers of calcium carbide and magnesium granulates. Alter­
natively, the applicant seeks the cancellation or reduction of the
fine imposed on it pursuant to Article 31 of Council Regulation
According to the applicant, by adopting the contested (EC) No 1/2003.
decision, the defendant has acted disproportionately and in
a way which is discriminatory and contrary to the The application is based on the following grounds:
applicant’s legitimate expectations. The applicant further
submits that the contested decision also constitutes a
violation of its rights to the peaceful enjoyment of its First, the applicant submits that the Commission has breached
possessions as protected by Article 1 of Protocol 1 to the the principle of proportionality and equal treatment which are
European Convention of Human Rights (“ECHR”), as well as general principles of Community law, by imposing an excessive
the right to enjoy its civil rights, including property rights and disproportionate fine on the applicant.
and the right to a fair and public hearing, enshrined in
Article 6 of the ECHR.
Second, that applicant claims that the Commission failed to
investigate the applicant’s ability to pay the fine and the risk
that the fine may lead to its bankruptcy. The applicant submits,
in particular, that the Commission failed to adhere to the
essential procedural requirements, that it did not properly
(1) 2009/449/EC: Commission Decision of 13 May 2009 on the
selection of operators of pan-European systems providing mobile examine the evidence supplied by the applicant showing the
satellite services (MSS) (notified under document number C(2009) imminent risk of a bankruptcy proceeding should the
3746) (OJ 2009 L 149, p. 65) Commission impose a fine on it. Hence, it is submitted that
the Commission committed a manifest error of appraisal in
failure to establish the aforementioned risk and to apply
paragraph 35 of the Guidelines in respect of the applicant.