Case C-64/02 P: Appeal brought on 27 February 2002 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 11 December 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-138/00 between Erpo Möbelwerke GmbH and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-05-04
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU)

4.5.2002

EN

Official Journal of the European Communities

C 109/31

Action brought on 26 February 2002 by the Commission
the United
of

the European Communities against
Kingdom of Great Britain and Northern Ireland

(Case C-63/02)

(2002/C 109/53)

Appeal brought on 27 February 2002 by the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) against the judgment delivered on 11 December
2001 by the Fourth Chamber of the Court of First Instance
of the European Communities in Case T-138/00 between
Erpo Möbelwerke GmbH and the Office for Harmonis-
ation in the Internal Market (Trade Marks and Designs)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 26 February 2002 by the
Commission of the European Communities, represented by
Michael Shotter, acting as agent, with an address for service in
Luxembourg.

The Applicant claims that the Court should:

— declare that by failing to adopt for Northern Ireland
and Wales all the laws, regulations and administrative
provisions necessary to comply with Council Directive
98/83/EC of 3 November 1998 on the quality of water
intended for human consumption (1) or, in any event, by
failing to notify such provisions to the Commission, the
United Kingdom of Great Britain and Northern Ireland
has failed to fulfil its obligations under Article 17(1) and
17(2) of this directive;

(Case C-64/02 P)

(2002/C 109/54)

An appeal against the judgment delivered on 11 December
2001 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-138/00 between Erpo
Möbelwerke GmbH and the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (1) was brought
before the Court of Justice of the European Communities on
27 February 2002 by the Office for Harmonisation in the
Internal Market (Trade Marks and Designs), represented by
Alexander von Mühlendahl, Vice-President of the Office, and
Gregor Schneider, member of the Legal Services and Court
Proceedings Unit of the Legal Department.

The appellant claims that the Court should:

— order the United Kingdom to pay the costs.

— set aside the contested judgment;

Pleas in law and main arguments

Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 25 December 2000 without the United Kingdom
having informed the Commission of the provisions adopted to
comply with the directive referred to in the conclusions of the
Commission as regards Wales and Northern Ireland.

Since the Commission is in possession of no other information
enabling it to conclude that the United Kingdom has adopted
the necessary provisions, it is compelled to assume that the
UK has failed to fulfil its obligations under the directive.

(1) OJ L 330, 05.12.1998, p. 32.

— dismiss the action against the decision of the Third Board
of Appeal of 23 March 2000 in Case R 392/1999-3, or
alternatively refer the proceedings back to the Court of
First Instance;

— order the other party to the proceedings to pay the costs
both of the proceedings at first instance and of the appeal
proceedings.

Pleas in law and main arguments

the Court of First

Infringement of Article 7(1)(b) of Council Regulation
No 40/94 (2):
Instance applied a new
examination criterion in the contested judgment. The Office
considers that to limit the possibility of refusing a trade mark
application to cases in which general use amongst the class of
persons concerned is proved constitutes a legally erroneous
interpretation of Article 7(1)(b). If it were possible to refuse an
application for a trade mark only if that mark, or at all events
signs portrayed in the same way, were shown to be already

C 109/32

EN

Official Journal of the European Communities

4.5.2002

customary in business circles, Article 7(1)(b) would be robbed
of its central meaning for the purposes of examination of trade
mark applications and, moreover, the examination would
overlap with Article 7(1)(d).

(1) Not yet published in the European Court Reports.
(2) Council Regulation (EC) No 40/94 on the Community trade mark

(OJ L 11 of 14.1.1994, p. 1).

Appeal brought on 28 February 2002 by ThyssenKrupp
Stainless GmbH (formerly doing business as KruppThys-
sen Stainless GmbH) against the judgment delivered on
13 December 2001 by the First Chamber of the Court of
First Instance of the European Communities in Joined
Cases T-45/98 and T-47/98 between KruppThyssen Stain-
less GmbH and Acciai speciali Terni SpA and the Com-
mission of the European Communities

(Case C-65/02 P)

(2002/C 109/55)

An appeal against the judgment delivered on 13 December
2001 by the First Chamber of the Court of First Instance of
the European Communities in Joined Cases T-45/98 and
T-47/98 between KruppThyssen Stainless GmbH and Acciai
speciali Terni SpA and the Commission of the European
Communities (1) was brought before the Court of Justice of the
European Communities on 28 February 2002 by Thyssen-
Krupp Stainless GmbH, represented by Dr Martin Klusmann,
Rechtsanwalt, of Freshfields Bruckhaus Deringer, Düsseldorf.

The appellant claims that the Court should:

(1) partially set aside the judgment of the Court of First
Instance of the European Communities, in so far as it
dismisses the action brought against the Commission
Decision 98/247/ECSC of 21 January 1998;

(2)

correct, in so far as it concerns the appellant, the finding
in Article 1 of Decision 98/247/ECSC regarding the
duration of the infringement;

(3)

reduce the fine imposed on the appellant in Article 2 of
Decision 98/247/ECSC appropriately,

or, alternatively in respect of claims (1) and (2),

Pleas in law and main arguments:

— Errors of law in the determination of, and the regard had
to, the duration of the infringement for which the fine
was imposed: the Court of First Instance erroneously
rejected the contention that the infringement was only
sporadic, although it is undisputed that, from as early as
February 1994 onwards, the appellant has repeatedly
independently fixed its prices for stainless steel
flat
products. The defendant and the Court of First Instance
would have been entitled to assume that prices continued
to be influenced by the concerted practices within the
meaning of Article 65 of the ECSC Treaty after the next
time the prices were independently fixed, in March 1994,
only if there had been actual evidence of such continued
influence or of continued practices.

the Court of First

Even if it could not be assumed that the infringement was
only sporadic,
Instance failed to
recognise that the protracted length of the administrative
procedure worked — unfairly — to the disadvantage of
the appellant, since the Commission did not make clear
that it was acting on the presumption of an ongoing
infringement.

— Error of law in so far as the initial fixed sum was taken
into account more than once in the calculation of the
fine: the Court of First Instance wrongly failed to address
the applicant’s contention that, when applying the prin-
ciple of fixed-sum fines in respect of the applicant’s legal
relationships, the Commission was entitled to impose
only a single fine. Instead, the Commission recognised
the corporate structure of the group in the non-operative
part of its decision, but failed to take it into account in
the calculation of the fine imposed of the applicant,
thereby breaching the principle of equal treatment.

— Error of

law in the appraisal of the applicant’s co-
operation in the investigation: finally, the Court of First
the Commission was
Instance erroneously held that
entitled to grant those undertakings involved in the
procedure which co-operated in the investigation to
exactly the same extent as the applicant, but which
additionally admitted that, in legal terms, the facts notified
to the applicant constituted an infringement of Article 65
ECSC, a specific additional 30 % reduction in the fine in
respect of that admission. In addition to the principle of
protection of sources which emerges from the Com-
mission’s notice (2), it is an axiomatic principle of the rule
of law that an admission of illegality cannot and must
not be rewarded.

refer the case back to the Court of First Instance for a
new judgment which complies with the Court’s interpret-
ation of the law;

(1) Not yet published in the European Court Reports.
(2) OJ 1996 C 207, p. 4.

(4) order the Commission to pay the full costs of

the

proceedings.