Case T-167/02: Action brought on 30 May 2002 by Etablissements Toulorge against European Parliament and Council of the European Union
Date: 2002-07-27
Institutions: Court of First Instance
Subjects: Council of the European Union, European Parliament, action for annulment (EU), animal nutrition, free movement of goods, infringement of EU law, manufactured feedingstuffs, public health

C 180/32

EN

Official Journal of the European Communities

27.7.2002

Action brought on 28 May 2002 by José Pedro Pessoa e
Costa against Commission of the European Communities

Action brought on 30 May 2002 by Etablissements
Toulorge against European Parliament and Council of the
European Union

(Case T-166/02)

(2002/C 180/55)

(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 28 May 2002 by José Pedro Pessoa
e Costa, residing in Lisbon, represented by Jean-Noël Louis,
Etienne Marchal and Albert Coolen, lawyers.

The applicant claims that the Court should:

— annul the decision of the Commission of 3 July 2001 to

bring disciplinary proceedings against him;

— annul the decision of the appointing authority to reject
the request submitted on 6 July 2001 by the Director of
the EMCDDA to transfer him to the EMCDDA, pursuant
to Article 29(1)(c) of the Staff Regulations;

— order the defendant to pay the costs.

Pleas in law and main arguments

(Case T-167/02)

(2002/C 180/56)

(Language of the case: French)

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 30 May 2002
by Etablissements Toulorge, whose registered office is at
Bricquebec (France), represented by Denis Waelbroek and Dirk
Brinckman, lawyers.

The applicant claims that the Court should:

— annul Directive 2002/2/EC of the European Parliament
and of the Council of 28 January 2002 amending Council
Directive 79/373/EEC on the circulation of compound
feedingstuffs and repealing Commission Directive 91/
357/EEC;

The applicant requested, upon returning from a period of
unpaid leave, to be transferred to the European Monitoring
Centre for Drugs and Drug Addiction (EMCDDA). The transfer
was refused by the Commission because disciplinary proceed-
ings had been instituted against the applicant following charges
laid by the Portuguese authorities.

— declare the non-contractual liability of the Community,
in the body of the Council and the European Parliament
and order the defendants to make good all the damage
that
suffered by the applicant as a consequence of
directive;

the applicant claims that
In support of his application,
the decision to initiate disciplinary proceedings against him
infringes the fifth paragraph of Article 88 of
the Staff
Regulations. Furthermore, the applicant pleads breach of the
principle that innocence must be presumed and infringement
of Article 87 of the Staff Regulations, the rights of the defence
and the findings of the Heads of Administration No 103 J/77.

— order the parties to produce, within a reasonable period
after the Court of First Instance delivers its decision, exact
figures to quantify the damage which the parties have
agreed or, in the absence of such agreement, order the
parties to transmit to the Court of First Instance, within
the same period, additional claims containing such exact
figures;

The applicant claims, finally that the decision refusing to
transfer him to the EMCDDA is unlawful inasmuch as it is
based on a decision which is itself unlawful, namely the
decision to initiate disciplinary proceedings.

— order interest to be paid at an annual rate of 8 % (or any
other appropriate rate which the Court may decide) with
effect from the date of the decision of the Court finding
the Community liable until actual payment is made;

— order the defendant to pay the costs.

27.7.2002

EN

Official Journal of the European Communities

C 180/33

Pleas in law and main arguments

The applicant claims that the Court should:

The contested decision introduces an obligation on the
manufacturers of compound feedingstuffs for production
animals to provide an indication of the precise quantities of all
the raw material used in their products in order to protect
public health by improving the traceability of the ingredients.
According to the applicant, the effect of that measure is to
oblige disclosure of basic know-how and business secrets of
manufacturers of compound feedingstuffs.

In support of its application, the applicant claims breach of
several rights guaranteed by Community law and of objectives
pursued by the Treaty. Furthermore, the contested directive
runs counter to the safeguarding of undistorted competition
and the encouragement of technical research and development.
Moreover, it disregards property rights and the right freely to
pursue an economic activity. The applicant claims, finally, that
the directive runs counter to the objective of
improving
agricultural products and protecting the environment.

The applicant maintains, moreover, that the contested measure
is disproportionate. According to the applicant, the directive
is not capable of attaining the objective of protecting public
health and in any event goes beyond what is necessary to
achieve such an objective. The applicant further claims that
the directive does not of itself ensure the quality of the
products nor improves the traceability of the ingredients and
it places a disproportionate burden with regard to
that
labelling.

Finally, the applicant claims that the measure is based on an
erroneous legal basis. In its view, Article 37 of the EC Treaty
should be chosen as the legal basis instead of Article 152 of
the Treaty in view of the fact that the contested directive bears
no relationship to veterinary or plant health matters.

— annul the decision of the Third Board of Appeal of the

OHIM of 6 March 2002;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

The Community trade
mark concerned:

Community figurative trade mark
No 1.178.425, which depicts a
bottle of beer bearing the words
‘NEGRA MODELO’ on the label,
for products falling within Class-
es 25 (clothing), 32 (beer) and 42
(services
res-
taurants and nightclubs)

related to bars,

Proprietor of the right to MODELO CONTINENTE HIPER-
the trade mark or sign MERCADOS S.A.
asserted by way of oppo-
sition in the opposition
proceedings:

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

Portuguese
figurative marks
No 295.800 and 295.804, which
distinguish goods in Classes 25
(clothing, including footwear) and
33 (syrups,
and non-
beer
alcoholic beverages) of the inter-
national classification respectively

Provisional refusal to register the
Community trade mark in issue
to distinguish ‘beer’ and regis-
tration in respect of ‘clothing’ and
‘services
res-
taurants and nightclubs’

related to bars,

Decision of the Board of
Appeal:

Decision of the Opposition Div-
ision upheld

Grounds of claim:

Infringement of Article 8(1)(a) of
Regulation (EC) No 40/94 (likeli-
hood of confusion)

Action brought on 30 May 2002 by Cervecerı´a Modelo,
S.A. de C.V. against Office for the Harmonization of the
Internal Market (trade marks and designs) (OHIM)

Decision of the Oppo-
sition Division:

(Case T-169/02)

(2002/C 180/57)

(Language of the case: Spanish)

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
30 May 2002 by Cervecerı´a Modelo, S.A. de C.V., whose
registered office is in Mexico, D.F., represented by Carlos Lamo
Devesa and Antonio Vela´zquez Iba´n˜ ez.