Case T-236/02: Action brought on 8 August 2002 by Luigi Marcuccio against the Commission of the European Communities
Date: 2002-08-08
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), administrator, indemnification, reassignment

C 233/34

EN

Official Journal of the European Communities

28.9.2002

The applicant claims that the Court should:

— annul the First Board of Appeal’s decision of 27 May

2002 in Case R 830/2001-1;

— remit the case to the First Board of Appeal;

— order each party to bear its own costs.

— Registration of the Scala Inc’s
Community
trade mark
application is an infringe-
ment of Article 8(1) of
Council Regulation No 40/
94, as the applicant is the
owner of
two earlier and
identical trade marks which
are registered for identical or
similar goods.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Scala Inc., USA

Action brought on 8 August 2002 by Luigi Marcuccio
against the Commission of the European Communities

The Community trade Word mark SCALA for ‘computer
mark concerned:

software’ in class 9.

(Case T-236/02)

(2002/C 233/60)

The Applicant

(Language of the case: Italian)

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

registered

Danish trade mark registration no.
Trade mark or
sign
asserted by way of oppo-
VR 1300 1989 SCALA (word
sition in the opposition mark), registered on 17 March
1989, and German trade mark
proceedings:
registration no. 2059843 SCALA
(Word mark),
on
15 March 1994. These two marks
are registered for a range of goods
in classes 9 and 16. The appli-
cant’s opposition was based on
some of
the goods for which
the earlier mark was registered,
specifically ‘counterprograms sto-
red on datacarriers’ and ‘date pro-
cessing programs stored on data
carriers’ in class 9, and was direct-
ed against all the goods specified
in Scala Inc’s application

Decision of the Oppo-
sition Division:

Refusal of the application

Decision of the Board of
Appeal:

Refusal of he application

Grounds of claim:

— The documents submitted by
the Applicant to the Oppo-
sition Division did comply
with Rule 16(2) of Regu-
lation (EC) No. 2868/95,
implementing Council Regu-
lation No 40/94, on the
Community Trade Mark

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Luigi Marcuccio,
represented by Luciano Garofalo, lawyer.

The applicant claims that the Court should:

— annul the decision changing the ‘affectation de l’emploi
A7/A6 et de son titulaire M. Luigi Marcuccio (n. Personnel
048092), fonctionnaire de grade A7’ (‘transferring the
A6/A7 post and its holder, Mr Luigi Marcuccio (Staff
No 048092), a grade A7 official’) from the Directorate-
General for Development, Commission’s Delegation in
Luanda (Angola) to the Directorate-General for Develop-
ment in Brussels; the said decision was adopted by the
Director-General for Development, Mr Koos Richelle, on
18 March 2002;

— order the defendant:

— to pay compensation for the non-material, existen-
tial, biological, physical, psychological and material
damage suffered by the applicant as a result of the
decision contested in these proceedings, in the sum
of 100 000 (one hundred thousand) euros or such
greater or lesser sum as the Court may think fair and
equitable;

— to pay all the salary-related allowances connected
with the performance by the said Marcuccio of his
duties in Angola, with effect from the date on which
his transfer took effect (1 April 2002), together with
interest thereon at the rate of 10 % per annum,
compounded annually;

— to pay the costs.

28.9.2002

EN

Official Journal of the European Communities

C 233/35

Pleas in law and main arguments

Pleas in law and main arguments

The applicant in the present case is contesting the decision to
transfer him from the Commission’s delegation in Luanda to
the Directorate-General for Development in Brussels. That
decision is allegedly connected with illness caused by personal
conflicts in which he was involved within the said delegation
in Luanda.

In support of his claims, the applicant pleads:

— failure to provide a statement of reasons, inasmuch as the
mere reference to the interests of the service cannot be
regarded as satisfactory in that respect;

— infringement of the principle of proper administration,
alternatively failure to discharge the duty to have regard
for the welfare and interests of officials;

— non-compliance with the principle that the interested
party should be heard in advance of the adoption of a
decision, inasmuch as the contested decision was taken
without any prior notice to the person concerned;

— the decision at issue is indicative in several respects of a
misuse of powers, since it is apparent from the overall
circumstances of the case that the objective actually
pursued was not of a merely organisational nature but
was to distance the applicant from Angola and from the
functions which he was responsible for performing there.

By application of 15 April 2002 the applicant, a manufacturer
of special glass, requested, pursuant to Article 6(1) of Regu-
lation (EC) No 1049/2001 of the European Parliament and of
the Council (1), access to documents relating to various State
those procedures concerned the
aid procedures. Two of
applicant itself as a presumed recipient of State aid; the others
concerned one of its competitors on the special glass markets,
the firm Schott Glass. The applicant’s action is directed at the
Commission’s decision of 28 May 2002 in so far as it refuses
to grant access to the documents in the aid procedures
concerning the applicant itself and in procedures concerning
Schott Glass and are already completed.

The applicant submits that the Commission’s refusal manifestly
infringes Article 2(1) and (4) of Regulation (EC) No 1049/
2001. The applicant had a right to access which was not
restricted by Article 4 of the regulation. In particular, the
Commission had not proved the existence of any specific
impairment of the protected interests set out in Article 4(2) of
the regulation.

the applicant submits that the Commission
Furthermore,
wrongly relied on the exception relating to the protection of
the purpose of inspections, investigations and audits. Referring
to Article 4(7) of the regulation, the applicant submits that it
has at the very least the right to access to documents in
examination procedures which have already been completed.
Moreover, it ought to have been possible for the Commission
to grant the applicant access to a document in which business
secrets had been obscured and thus to grant partial access in
accordance with Article 4(6) of the regulation.

Action brought on 8 August 2002 by Technische Glaswer-
ke Ilmenau GmbH against the Commission of the Euro-
pean Communities

Finally,
the Commission infringed its obligation to state
reasons in accordance with Article 253 EC, since it had merely
given a general statement of reasons.

(Case T-237/02)

(2002/C 233/61)

(Language of the case: German)

(1) Regulation (EC) No 1049/2001 of the European Parliament and
of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents (OJ
2001 L 145 p. 43).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Technische
Glaswerke Ilmenau GmbH, whose registered office is at
Ilmenau (Germany), represented by G. Schohe and Ch. Arhold,
lawyers, acting as agents, with an address for service in
Luxembourg.

The applicant claims that the Court should

— annul

the Commission’s decision of 28 May 2002
concerning the applicant’s application for access to
documents — D(2002) 330168 — except for the part in
which access is refused to documents directly connected
with the pending aid procedure concerning Schott;

— order the defendant to pay the costs.

Action brought on 9 August 2002 by José Barbosa
Gonçalves against Commission of the European Com-
munities

(Case T-238/02)

(2002/C 233/62)

(Language of the case: Portuguese)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 August 2002 by José Barbosa