Case T-80/01: Action brought on 9 April 2001 by Barbara Diehl-Leistner against the Commission of the European Communities
Date: 2001-06-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition (EU), equal treatment, mother tongue, staff assessment

C 186/10

EN

Official Journal of the European Communities

30.6.2001

Action brought on 5 April 2001 by Robert Bosch GmbH
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-79/01)

(2001/C 186/15)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
5 April 2001 by Robert Bosch GmbH, of Stuttgart (Germany),
represented by Stefan Völker, Rechtsanwalt, with an address
for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision adopted on 31 January 2001 by the
First Board of Appeal of the Office for Harmonisation in
the Internal Market (Trade Marks and Designs) in the
appeal
number
R 124/2000-1 concerning Community trade mark appli-
cation No 761 270;

proceedings

registered

under

— order the defendant Office to pay the costs.

— Registration of the mark in
question would accord with
the
the other
decision-making practice fol-
lowed by
the Boards of
Appeal.

aspects of

— Infringement,

alternatively
misinterpretation,
of
Article 7(1)(b) and (c) of Regu-
lation No 40/94.

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

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

Action brought on 9 April 2001 by Barbara Diehl-Leistner
against the Commission of the European Communities

(Case T-80/01)

(2001/C 186/16)

Pleas in law and main arguments

(Language of the case: German)

Applicant for the Com-
munity trade mark:

the applicant

The trade mark con-
cerned:

the verbal mark ‘Kit Pro’

Goods or service con-
cerned:

goods and services in Class 12
(parts for repairing drum brakes
in land vehicles)

Decision
before
Appeal:

contested
the Board of

refusal of the application for regis-
tration of the mark

Grounds of claim:

— The mark is not descriptive
within
of
Article 7(1)(c) of Regulation
(EC) No 40/94 (1).

the meaning

— There is no need to keep the

mark free.

— The mark possesses the mini-
mum level of distinctiveness
necessary for trade-mark pro-
tection.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 April 2001 by Barbara Diehl-
Leistner, Luxembourg, represented by Lex Thielen, Lawyer,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision notified to the applicant by letter of
the selection board for Competition COM/A/12/98, 02
of 17 April 2000 that she is not included on the list of
successful candidates in the open competition and the
decision of 17 January 2001 rejecting her complaint of
4 July 2000;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant took part in Open Competition COM/A/12/98,
02 and was informed that she was not placed on the list of
successful candidates in the competition because she did not
achieve the minimum mark in the oral test. Her complaint
against that decision was rejected by the defendant.

30.6.2001

EN

Official Journal of the European Communities

C 186/11

The applicant alleges, inter alia, that the principle of equal
treatment was infringed in her oral test. That test, which was
conducted in German as ‘Language 1’, was not attended by a
member of the selection board with German as mother tongue,
while other candidates had examiners whose mother tongue
was their ‘Language 1’. The applicant contends that she was
not always understood correctly during the test. By reason of
that infringement of the principle of equal treatment the
selection board failed to observe the rules governing its work,
and it was not ensured in accordance with Article 27 of the
Staff Regulations that the defendant secured the services of
officials of the highest standard of ability.

Action brought on 5 April 2001 by M.O.H. Verdoodt and
I.E.M. Rademakers-Verdoodt against the Commission of
the European Communities

(Case T-81/01)

(2001/C 186/17)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 April 2001 by M.O.H. Verdoodt
and I.E.M. Rademakers-Verdoodt, both resident in Schoten
(Belgium), represented by J. van Dam, of the Rotterdam Bar.

The applicants claim that the Court should:

(1) Annul Commission Decision SG (2001) D/286098 of
9 February 2001 not to grant the applicants the requested
exemption from the old-for-new obligations set out in
Article 4(1) of Council Regulation (EC) No 718/1999 of
29 March 1999 on a Community-fleet capacity policy to
promote inland waterway transport, and rule that the
requested exemption ought to be granted in respect of
the Arizona;

(2) Order the defendant to pay the costs.

Pleas in law and main arguments

The applicants challenge Commission Decision SG (2001)
D/286098 of 9 February 2001, which is addressed to them.
That decision was issued in response to the request which the

applicants submitted to the Commission on 20 October 2000
that the gypsum tanker Arizona be exempted from application
of the ‘old-for-new obligations’ laid down in Article 4(1) of
Regulation No 718/1999.
the
Commission decided not to grant the requested exemption, a
decision which has a direct adverse effect on the applicants’
interests.

In the contested decision,

The vessel Arizona is a gypsum tanker which transports
calcined gypsum. In the contested decision, the Commission
takes the view, by reference to the conditions laid down in
Article 4(6) of the regulation, that if those conditions are
satisfied, the vessel does not contribute to an increase in fleet
capacity and thus does not adversely affect the objectives of
the Community rules. The Commission states that, while
consulting the expert group ‘capacity policy and promotion of
Community inland waterway transport’, it learned that, as a
gypsum tanker, the vessel carries out transport operations in
the same way as other vessels on the market which also
transport gypsum but which have not benefited from exemp-
tion from the ‘old-for-new’ rule.

According to the applicants, however, the consignments for
transport by the Arizona are not ’gypsum’ but rather calcined
gypsum. Previously, calcined gypsum was transported solely
by lorry: apart from the Arizona, there is no vessel which can
and may transport calcined gypsum. The gypsum which other
vessels transport is therefore a different type of cargo to the
calcined gypsum which the Arizona transports. Other vessels
transport loose or rough gypsum. Moreover, the market for
vessels which transport ‘gypsum’ is different to that for the
transport of calcined gypsum. The market for the transpor-
tation of calcined gypsum consists of lorry transport and, since
the construction of the Arizona, of transport by the Arizona,
which thus, each year, moves the equivalent of some 2 400 lor-
ries. The Arizona is technically unsuitable for the transportation
of other goods. The European Commission’s view that, follow-
ing minor modifications, the Arizona could transport any type
of goods is clearly attributable to erroneous information.

The Commission errs in its conclusion that granting the
Arizona exemption from the old-for-new rule would result in
a distortion of competition. On the contrary, ‘fair and honest
treatment of all market players’ means that the Arizona, as
a specialised vessel satisfying the classification criteria of
Article 4(6) of Regulation No 718/1999, ought to be exempted
from the old-for-new obligations.

The applicants offer to substantiate their views by all legal
means, in particular by way of witnesses and experts.