Case T-22/02: Action brought on 7 February 2002 by Sumitomo Chemical Co., Ltd against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, limitation of legal proceedings, restrictive trade practice, sanction (EU), vitamin

C 109/52

EN

Official Journal of the European Communities

4.5.2002

Action brought on 30 January 2002 by Interquell GmbH
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

Grounds of claim:

— incorrect

application

of
Article 8(1)(b) of Regulation
(EC) No 40/94 (1);

(Case T-20/02)

(2002/C 109/100)

— infringement of Regulation
(EC) No 40/94 on account
of
failure to comply with
Article 12 thereof.

(Language of the case: to be determined pursuant to Article 131(2)
of the Rules of Procedure — Language in which the application has
been drafted: German)

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

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

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
30 January 2002 by Interquell GmbH, of Wehringen (Germ-
any), represented by G.J. Hodapp, lawyer. A further party to
the proceedings before the Board of Appeal was SCA Nutrition
Ltd, of Lichfield (United Kingdom).

The applicant claims that the Court should:

— annul Decision R 264/2002-2 adopted on 27 November
2001 by the Second Board of Appeal of the Office for
Harmonisation in the Internal Market;

— order the Office to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

the applicant

The Community trade
mark applied for:

Proprietor of the trade-
mark right opposed in
the opposition proceed-
ings:

Trade-mark
opposed:

right

the pictorial mark ‘HAPPY DOG’
for goods in Class 31 (feeding-
stuffs for dogs) — application
No 290577

SCA Nutrition Ltd

the United Kingdom verbal and
pictorial marks ‘HAPPIDOG’ for
goods in Class 31 (feedingstuffs
for dogs)

Action brought on 7 February 2002 by Sumitomo Chemi-
cal Co., Ltd against the Commission of the European
Communities

(Case T-22/02)

(2002/C 109/101)

(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 7 February 2002 by Sumitomo
Chemical Co., Ltd, represented by Mr Martin Klusmann
and Ms Vanessa Turner of Freshfields Bruckhaus Deringer,
Düsseldorf (Germany).

The applicant claims that the Court should:

— annul the defendant’s Decision C(2001)3695-final of
21 November 2001 in Case No. COMP/E-1/37.512 —
Vitamins as far as Sumitomo Chemical Company is
concerned

— order the defendant to pay the costs.

Pleas in law and main arguments

The contested Decision in the present case is the same as in
case T-15/02 BASF/Commission (1).

Decision of the Oppo-
sition Division:

rejection of
application

the

trade mark

In support of its conclusions, the applicant submits that:

Decision of the Board of
Appeal:

rejection of the applicant’s appeal

— The Commission was time-barred from taking the prohib-
ition Decision. Contrary to the defendant’s view that the
rules on limitation periods have no bearing on the

4.5.2002

EN

Official Journal of the European Communities

C 109/53

entitlement of the defendant to investigate cartel cases and
to adopt prohibition Decisions, the rules on limitation
in Regulation No. 2988/74 (2) should be considered
applicable to declaratory prohibition decisions.

Chemicals Co. Ltd., represented by Mr. Martin Klusmann
and Ms Vanessa Turner of Freshfields Bruckhaus Deringer,
Düsseldorf (Germany).

— The adoption of a prohibition decision is time-barred
under general principles of Community Law. It is stated
in this regard that where there is no doubt that the alleged
conduct was terminated more than five years before an
investigation was opened,
there is no need and no
justification for a declaratory decision, because there is
no place for a cease and desist order, as contained in
Article 2 of the contested Decision, or any other form of
penalty to be imposed on the applicant by the defendant.
Alternatively, the rationale for limitation periods in the
European Union is that after a certain period of time it is
in the interest of the proper functioning of the legal
system that infringements of the law should no longer be
investigated or lead to any form of ‘punishment’ of the
party concerned.

— The defendant was not competent within the meaning of
the second paragraph of Article 230 EC to adopt the
contested Decision, as it thereby exceeded its powers
under the Treaty and Regulation No. 17/62. The defend-
ant is not empowered by Article 3 of Regulation No. 17,
or by any other provision, to adopt a declaratory decision
where the infringement has already been terminated
outside the limitation period provided for in Article 1 of
Regulation No. 2988/74.

(1) Notice not yet published in the OJ.
(2) Council Regulation (EEC) No 2988/74 of 26 November 1974
concerning limitation periods in proceedings and the enforcement
of actions under the rules of the European Economic Community
relating to transport and competition (OJ L 319, 29.11.1974,
p. 1).

Action brought on 7 February 2002 by Sumika Fine
Chemicals Co. Ltd. against the Commission of the Euro-
pean Communities

(Case T-23/02)

(2002/C 109/102)

(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 7 February 2002 by Sumika Fine

The applicant claims that the Court should:

— annul the Defendant’s Decision C(2001)3695 final of
21 November 2001 in Case No. COMP/E-1/37.512 —
Vitamins, so far as Sumika Fine Chemicals Co. Ltd. is
concerned;

— order the Defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
upon in Case T-22/02 (Sumitomo Chemical/Commission, not
yet published in the OJ).

Action brought on 7 February 2002 by Maddalena Lebe-
def-Caponi against the Commission of the European
Communities

(Case T-24/02)

(2002/C 109/103)

(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 7 February 2002 by Maddalena
Lebedef-Caponi, residing at Senningerberg (Grand Duchy of
Luxembourg), represented by Gilles Bounéou, lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the express decision No 40263 of 6 November
2001 by which the appointing authority replied to the
applicant’s complaint No 334/01 of 18 July 2001 by
fixing the compensation for the non-material damage
suffered by her in the sum of 1 500 euros;

— award the applicant the sum of BEF 800 000, assessed as
amounting now to the sum of BEF 1 000 000, by way of
compensation for the non-material damage suffered as a
result of the lateness in drawing up her staff report
(placed belatedly in her personal file) for the period 1993-
1995 and the lateness in drawing up her staff reports for
the periods 1995-1997 and 1997-1999;