Case T-195/01: Action brought on 20 August 2001 by the Government of Gibraltar against the Commission of the European Communities
Date: 2001-10-27
Institutions: Court of First Instance
Subjects: European Commission, Gibraltar, State aid, action for annulment (EU), control of State aid, tax system

27.10.2001

EN

Official Journal of the European Communities

C 303/23

In support of his action for annulment, the applicant also
alleges infringement of the guidelines adopted by the Com-
mission on 18 September 1999, breach of the principle of
equal treatment and psychological harassment in the work
place. Finally the applicant claims compensation for damage
he claims to have suffered.

Grounds of claim:

interpretation
of
Incorrect
article 7 (1)
(b) of the Council
Regulation No 40/94 — The mark
is
sufficiently distinctive. The
Applicant claims further that the
burden to proof otherwise lays
with the Board of Appeal. It is not
up to the Applicant to show that
article 7(1)
the Council
(b) of
Regulation No 40/94 is not appli-
cable.

Action brought on 14 August 2001 by Unilever N.V.
against the Office for Harmonization in the Internal
Market

(Case T-194/01)

(2001/C 303/37)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the
European Communities on 14 August 2001 by Unilever N.V.,
a company registered in Rotterdam (Netherlands) represented
by Dr. Verna von Bomhard and Dr. Andreas Renck of Lovells
Boesebeck Droste, Alicante (Spain).

The applicant claims that the Court should:

— alter the decision of the First Board of Appeal of the
Office for Harmonization in the Internal Market (Trade
Marks and Designs) of 22 May 2001 (Case R 1086/
2000-1) to provide that the trade mark at hand is eligible
for registration as a Community trade mark;

— alternatively, the decision be annulled;

Action brought on 20 August 2001 by the Government
of Gibraltar against the Commission of the European
Communities

(Case T-195/01)

(2001/C 303/38)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 August 2001 by the Govern-
ment of Gibraltar, represented by Alastair Sutton, Michael
Llamas and Walter Schuster, of White & Case, Brussels
(Belgium).

— order the defendant to bear the costs of the proceedings.

The applicant claims that the Court should:

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Unilever N.V.

The Community trade
mark concerned:

Decision of the Exam-
iner:

Decision of the Board of
Appeal:

Three dimensional mark (Pebble
shape)
Application
No 1 418 250 for certain goods
in class 3

—

Rejection of the Application

Partial acceptance of the Appeal

— annul the Commission’s decision to open the procedure
under Article 88(2), in the form of the letter of 11 July
2001 addressed to the United Kingdom;

— order the defendant to pay the costs.

Pleas in law and main arguments

The Government of Gibraltar introduced a tax scheme under
which certain companies, under certain conditions, were
exempt from income tax and subject only to a fixed tax (the
exempt company legislation). That legislation was modified by
several amendments before and after the accession of the
United Kingdom and Gibraltar to the European Communities
in 1973.

C 303/24

EN

Official Journal of the European Communities

27.10.2001

The Commission has now decided to open a procedure under
Article 88(2) EC, qualifying the legislation in question as
non-notified new aid. According to the Commission, the
amendments made to the legislation in 1979 and 1983,
following the United Kingdom’s accession to the European
Communities, were substantial modifications, so that the entire
scheme had to be qualified as new aid. That decision is now
contested by the applicant.

According to the applicant, the Commission has violated
Gibraltar’s rights of defence, by providing an insufficient
statement of the reasons for the contested decision and by
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence,
in so far as they constitute essential procedural
requirements.

Further, the applicant claims that the decision is incompatible
with Article 88 of the EC Treaty and that the Commission has
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.

According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should
therefore rather be considered as existing aid under Article 88
(1) EC.

To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has
elapsed since the amendments in question were adopted, the
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.

the

applicant. The

18 and 23 years after the amendments in question, would
violate the principle of legal certainty and the legitimate
in
expectations of
Article 1(b)(iv) of Regulation No 659/1999 for regarding state
aid as new aid expired long ago. This principle should,
according to the applicant, also apply in equity to the
Commission’s review of alterations to existing aid schemes, as
is the case here.

time-limit

set

Finally, the applicant states that the Commission’s investigation
prior to the decision was too lengthy, and therefore constitutes
a breach of the Commission’s duty to exercise due diligence
and of the principle of good administration.

Action brought on 14 August 2001 by Société Coopéra-
tive Agricole GIPAM against Commission of the European
Communities

(Case T-197/01)

(2001/C 303/39)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 August 2001 by Société
Coopérative Agricole GIPAM, whose registered office is at
Ducos (France), represented by Alain Lorang, Hubert Mazingue
and Patrick Leroyer Gravet, lawyers, with an address for service
in Luxembourg.

The applicant claims that the Court should:

— annul Commission Regulation No 896/2001 of 7 May

2001;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the
time when the amendments in question were made, the
interpretation of ‘state aid’ under EC law has evolved, especially
in relation to fiscal measures. At that time, that type of measure
was, according to the applicant, not generally regarded as
falling within the rules of the EC Treaty concerning state aid.
There was therefore no reason to notify the legislation at that
time. To regard that legislation as new aid now, respectively

In support of its arguments, the applicant claims that the
regulation at issue (1) does not comply with Council Regulation
No 404/1993 (2) for whose application the contested regu-
lation lays down detailed rules. According to the applicant,
those rules adversely affect the rights acquired by the applicant
under the earlier regulations adopted to implement Regulation
No 404/1993. Under those earlier regulations, the applicant
was characterised as a traditional importer, which is no longer