Case T-287/01: Action brought on 20 November 2001 by Bioelettrica S.p.A. against the Commission of the European Communities
Date: 2002-02-02
Institutions: Court of First Instance
Subjects: European Commission, appeal to the Court (EU), building industry, energy industry, termination of a contract

2.2.2002

EN

Official Journal of the European Communities

C 31/15

In support of his claim, the applicant argues that the contested
decision infringes the principle of equal treatment and thus
the Conditions of Employment. The
also Article 19 of
applicant maintains that, by comparison with the group of
employees entitled to expatriation allowance under Article 17
of the Conditions of Employment, he is being discriminated
against, and that that discrimination is not justified.

— order the Commission to pay to the applicant any amount
which the Court may deem appropriate by way of
compensation for the damage which the applicant has
suffered;

— order the Commission to pay the costs.

The applicant argues that the position is not affected by the
fact that Article 19 of the Conditions of Employment is only a
‘temporary solution’ pending the establishment of a European
School in the Frankfurt am Main area. In this phase also, he
maintains, he cannot be treated differently from the employees
entitled to expatriation allowance.

The applicant finds it incomprehensible that the education
allowance is linked to the existence of a right to expatriation
allowance under Article 17 of the Conditions of Employment.
He argues that the purpose of the education allowance is to
enable all-day schooling to take place, and that it is designed
not to benefit the employee but to support the dependent
child by making a contribution to its maintenance costs.

Action brought on 20 November 2001 by Bioelettrica
S.p.A. against the Commission of the European Communi-
ties

(Case T-287/01)

(2002/C 31/29)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 November 2001 by Bioelettrica
S.p.A., represented by Ombretta Fabe Dal Negro,

The applicant claims that the Court should:

— find that, by terminating by letter of 6 September
2001 the Thermie contract of 12 December 1994 with
Bioelettrica S.p.A., the Commission has acted unlawfully,
and consequently

— declare the contract valid and effective; and

Pleas in law and main arguments

The present application seeks a declaration that, by terminating
the Thermie contract, signed on 22 December 1994 bearing
number BM 1007/1994 IT/DE/UL/PO, for the construction of
a thermal power station in Italy, fuelled by plant-based biomass
based on a fluidised bed air gasifier on a combined cycle, the
Commission acted unlawfully. 40 % of the cost of the contract
was originally financed by Community contributions. The
applicant company, which was coordinating the project,
consisted of five of the seven original parties to the contract in
question.

The decision to terminate was adopted after a number of
problems regarding performance of the contract, in particular
with regard to the failure of Lurgi Energie, one of
the
contractors, to contribute technological support which led the
defendant to the conclusion that it would be impossible to
complete the programme of work of the project within the
agreed time limit.

In support of its application the applicant puts forward the
following pleas in law:

— failure to give one month’s notice by registered letter;

— failure to notify the termination to all the Contractors;

— infringement of Clause 8(8).2(f) of Annex II to the General
Terms and Conditions of the Contract, inasmuch as that
provision provides for the Commission to be able to
terminate the contract where the other contracting party
has not commenced work by the date laid down in the
contract, bearing in mind that the contract was entered
into in December 1994 and that Clause 2.1 of the
Contract lays down 1 January 1995 as the date for the
commencement of work. According to the applicant, it is
unbelievable that the Commission should have taken six
years to complain about the failure to commence work;

— breach of the general principle of legal certainty with
regard to legal relationships with a contractor who may
not under any circumstances be subject to unforeseeable
or unspecified consequences either as regards the con-
ditions which the parties have imposed on themselves or,
even less, the applicable legislation. The applicant points
out that this is particularly the case inasmuch as the
unforeseen effect arises from the exercise of an arbitrary
power, which is not provided for either under the law or
under the contract, to extinguish the existing contractual
relationship by withdrawing on the basis of an improper
and moreover unfounded ground;

C 31/16

EN

Official Journal of the European Communities

2.2.2002

— failure by the Commission to take into account the fact
that the applicant has fulfilled its obligations under the
contract, whereas Clause 2(c) of the General Terms and
Conditions of the Contract expressly provides that a
contractor is not to be liable for a contractor which does
not fulfil its obligations if it can show that it has not
contributed to such failure to fulfil obligations. In that
the defendant had overrated the obligations
regard,
attaching to the project coordinator;

— the defendant disregarded in the present case the duties
enshrined in Article 1375 of the Italian Civil Code so far
as concerns the principle of good faith and the protection
of legitimate expectations.

More generally, the applicant states that the object of the
contract in question is not for the supply of a piece of
equipment or merely white goods, but of a thermal power
station whose technological characteristics should have proved
to be something new and truly innovative. The applicant
therefore claims that the Commission’s conduct in the per-
formance of the contract should have been quite different to
that adopted, since the defendant was not in actual fact a party
to a synallagmatic contract, but a partner in the full sense of
the word, sharing the contracting parties’ interest in developing
technology within the Member States.

Action brought on 23 November 2001 by OPI Products
Inc. against the Office for Harmonisation in the Internal
Market

(Case T-288/01)

(2002/C 31/30)

(Language of the case: English)

— to order the OHIM to register the trademark ‘Nicole’ for
goods of class 3 including essential oils, cosmetics, hair
lotions, dentifrices and nail polish.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

OPI Products Inc.

The Community trade
mark concerned:

The verbal mark ‘Nicole’ for goods
in class 3.

Proprietor of the right to Maxim Marken-Produkte GmbH
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

& Co. KG.

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The national verbal mark ‘Nicole’
for certain goods in class 3

Decision of the Oppo-
sition Division:

Partial rejection of
sition.

the Oppo-

Decision of the Board of
Appeal:

Grounds of claim:

Annulment of the Decision of the
Opposition Division for ‘dentrific-
es’ in class 3 and dismissal of the
further appeal by OPI Products
Inc.

Violation of Article 43(2) of
Council Regulation 40/94 in that
the proof of the use of the mark
asserted by way of opposition was
insufficient. The applicant further
claims a violation of article 8(1)b
of Council Regulation 40/94 since
there is no likelihood of confusion
or similarity of goods.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 23 November 2001 by OPI
Products Inc., represented by Mr Emmanuel Cornu and Mr Eric
De Gryse of Braun Bigwood SCRL, Brussels (Belgium).

A further party to the proceedings before the Board of Appeal
was Maxim Marken-Produkte GmbH & Co. KG.

The applicant claims that the Court should:

— annul the decision of the third Board of Appeal in so far
as it denies registration of the contested CTM application
No 737 510 for the word mark ‘Nicole’ for ‘essential oils,
cosmetics, hair lotions; including nail polish’ in class 3;

Removal from the Register of Case T-108/00 (1)

(2002/C 31/31)

(Language of the case: French)

By order of 12 September 2001, the President of the Third
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of
Case T-108/00: Santiago Go´ mez-Reino v Commission of the
European Communities.

(1) OJ C 176 of 24.6.2000.