Case T-14/02: Action brought on 30 January 2002 by Agrofair Benelux BV, Volta River Estates Limited, SH Pratt & Co (Bananas) Ltd and M W Mack Limited against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), import licence, import policy, tariff quota, tropical fruit

C 109/48

EN

Official Journal of the European Communities

4.5.2002

Action brought on 14 January 2002 by Zapf Creation AG
against the Office for Harmonisation in the Internal
Market

Grounds of claim:

(Case T-8/02)

(2002/C 109/95)

Violation of Article 43, Section 2
of Regulation 40/94 (1) since there
was no satisfactory proof of the
the opposing
genuine use of
trademark
of
violation
and
Article 8, Section 1 b) of Regu-
lation 40/94 since there is no
danger of confusion.

(Language of the case: English)

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

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

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 14 January 2002 by Zapf Creation
AG, represented by Mr Axel Kockläuner of Meissner Bolte &
Partner, Munich (Germany).

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of
29 October 2001 in case R 418/2001-1 relating to
Opposition Proceedings no. B 97230 and Community
trade mark application no. 50229 ‘Colette Zapf Creation
Kombi Collection’

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Zapf Creation AG

The Community trade
mark concerned:

The figurative mark ‘Colette Zapf
for
Creation Kombi Collection’
certain goods in class 28

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

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

Jesmar S.A.

The Spanish word mark ‘Colette’
for certain goods in class 28

Decision of the Oppo-
sition Division:

Rejection of the opposition by
Jesmar S.A.

Action brought on 30 January 2002 by Agrofair Benelux
BV, Volta River Estates Limited, SH Pratt & Co (Bananas)
Ltd and M W Mack Limited against the Commission of
the European Communities

(Case T-14/02)

(2002/C 109/96)

(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 30 January 2002 by Agrofair
Benelux BV, Volta River Estates Limited, SH Pratt & Co
(Bananas) Ltd and M W Mack Limited, represented by Mr Phil-
ippe Vlaemminck and Mr Pieter De Wael of Vlaemminck &
Partners, Ghent (Belgium).

The applicant claims that the Court should:

— annul Article 1, third indent and Article 2(4) of Com-
mission Regulation (EC) No 2294/2001 of 26 November
2001 fixing certain indicative quantities and individual
ceilings for the issue of licences for imports of bananas
into the Community for the first quarter of 2002 under
the tariff quotas to the extent that the applicants can only
import a maximum of 8 % of their annual allocation
during the first quarter of 2002;

Decision of the Board of
Appeal:

Admission of the appeal lodged
by Jesmar S.A.

— order the Commission to pay the costs of the applicant
companies in the present proceedings including the costs
of the interim proceedings.

4.5.2002

EN

Official Journal of the European Communities

C 109/49

Pleas in law and main arguments

Action brought on 31 January 2002 by BASF AG against
the Commission of the European Communities

The applicants import organic, fair-trade and conventionally
grown bananas into the European Union. They are all non-
importers of bananas who have requested and
traditional
received a C quota for 2002. Because of Commission Regu-
lation 2294/2001, the applicants are allowed to import during
the first quarter of 2002 only 8 % of their quota, while the
traditional C operators can import 26 % of their quota, and
the traditional and non-traditional A and B operators 27 %.

According to the applicants, the Commission has misused its
powers in that the Commission, by the contested Regulation,
favours the traditional C operators. Following the agreement
reached between the European Union and the United States,
and the agreement with Ecuador to resolve the respective
disputes over bananas, the banana regime in the European
Union will be reformed in two stages. The second stage
includes a reduction of the C quota by 100 000 tonnes. As a
consequence of the contested Regulation, the burden of the
the C quota will be imposed, according to
decrease of
the applicant, solely on the non-traditional importers. The
applicant points out that if this limitation of 8 % is taken
through the whole year, this leads to a reduction of the import
under the C quota of approximately 100 000 tonnes.

Furthermore, the contested Regulation violates the principles
of proportionality and non-discrimination. The non-tra-
ditional C operators are the only operators who can import
only 8 % of their quota in the first quarter. This limitation
discriminates, according to the applicant, between the tra-
ditional and non-traditional C operators in particular. The
contested measure is also disproportionate, since the Com-
mission places the burden of the decrease of the C quota solely
on the non-traditional C operators. Instead the Commission
could have spread this burden between the traditional and
non-traditiona C operators. According to the applicant, it is
also unlikely that the Commission will divide the remaining
92 % of the quota over the remainder of the year.

Finally, the applicants claim that there has been a violation of
the principle of legitimate expectations and legal certainty.
According to the applicants, the current 8 % allocation is a
complete departure from the Commission’s earlier practices
where allocations of 26 to 28 % were given to the non-
traditional C operators for the first quarter of the year. The
applicants also claim that they could legitimately rely on the
fact that the decrease of the C quota would be divided between
the different traditional and non-traditional operators in a
proportionate manner.

(Case T-15/02)

(2002/C 109/97)

(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 31 January 2002 by BASF AG,
represented by Mr Nicholas Levy, Dr John Temple Lang,
Mr Robert O’Donoghue and Dr Christoph Feddersen of Cleary,
Gottlieb, Steen & Hamilton, Brussels (Belgium).

The applicant claims that the Court should:

— annul or substantially reduce the fine imposed on BASF

pursuant to Article 3(b) of the Decision;

— order the Commission to pay BASF’s legal and other costs

and expenses in relation to this matter.

Pleas in law and main arguments

The present application concerns a Decision of the European
Commission rendered on 21 November 2001,
in case
No. COMP/E-1/37.512-Vitamins. This Decision finds that a
number of companies infringed Article 81 EC and Article 53
EEA by participating in a cartel that affected the global markets
for vitamins A, E, B2, B5, C, D3 and Beta-carotene and
carotinoids. The fines imposed on the companies involved
were the highest ever in a competition law case.

In support of its claims, the applicant relies on and submits
the following grounds and main arguments:

— Whilst the statements of objections stated that there was
a single cartel, comprising collusive arrangements with
regard to various vitamins, the contested Decision, in
contrast, stated for the first time that the arrangements
with regard to each vitamin constituted ‘distinct’ infringe-
ments of Community competition law. The Commission
has thus breached the principle according to which a
Decision cannot rely on legal or factual objections
that are materially different from those contained in a
statement of objections.