Case T-213/02: Action brought on 12 July 2002 by SNF S.A. against the Commission of the European Communities
Date: 2002-09-28
Institutions: Court of First Instance
Subjects: action for annulment (EU), chemical product, cosmetic product, directive, infringement of EU law, public health

C 233/28

EN

Official Journal of the European Communities

28.9.2002

— in so far as necessary, annul that decision inasmuch as
the Council and the Commission approved the other
articles of the Agreement between the European Com-
munity and the Swiss Confederation on Trade in Agricul-
tural Products, as well as the Agreement on Mutual
Recognition in Relation to Conformity Assessment
between the European Community and the Swiss Confed-
eration, the Agreement between the European Com-
munity and the Swiss Confederation on Certain Aspects
of Government Procurement, the Agreement on Scientific
and Technological Cooperation between the European
Community and the European Atomic Energy Com-
munity, of the one part, and the Swiss Confederation, of
the other part, the Agreement between the European
Community and the Swiss Confederation on the Carriage
of Goods and Passengers by Rail and Road, the Agreement
between the European Community and the Swiss Confed-
eration on Air Transport, the Agreement on the Free
Movement of Persons between the European Community
and its Member States, of the one part, and the Swiss
Confederation, of the other part;

— declare that the European Community, as represented by
the Council and the European Commission, is liable and
order the defendants to compensate in full the applicant
wine growers for all damage arising from the ‘Champagne
Clause’;

name ‘Champagne’ has been used in the production of wine in
the area for many years and is thus the industrial and
commercial property of the applicants.

Furthermore, a total ban on the use by the applicants of
the name ‘Champagne’ does not observe the principle of
proportionality. The applicants point out that the wine they
produce is a non-sparkling wine which does not compete
with French champagne. There is therefore no likelihood of
confusion. In addition, there are less restrictive ways in which
to achieve the same objective, such as by indicating the country
of origin on the label.

Action brought on 12 July 2002 by SNF S.A. against the
Commission of the European Communities

(Case T-213/02)

(2002/C 233/51)

— order the Council and the Commission to pay the costs.

(Language of the case: English)

Pleas in law and main arguments

The applicants are, on the one hand, owners of vineyards in
the municipality of Champagne, in the canton of Vaud in
Switzerland and, on the other, acting in defence of the interests
of those wine growers.

By the contested decision, the Council and the Commission
approved seven bilateral agreements between the Community
and the Swiss Confederation; one of those agreements concerns
trade. One of the annexes to that agreement
agricultural
includes a provision prohibiting use of the name ‘Champagne’
for wine originating in the canton of Vaud.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 July 2002 by SNF S.A.,
represented by Koen Van Maldegem and Claudio Mereu at
McKenna Long & Aldridge LLP in Brussels, Belgium

The applicant claims that the Court should:

— order the partial annulment of the Twenty-Sixth Com-
mission Directive 2002/34/EC of 15 April 2002 adapting
to technical progress Annexes II, III and VII to Council
Directive 76/768/EEC on the approximation of the laws
of the Member States relating to cosmetic products (1), so
as to remove polyacrylamides from the measure;

— order the Commission to pay all costs and expenses in

these proceedings.

In support of their arguments, the applicants allege, first,
breach of general principles of law including right to their
identity, to property and to the freedom to pursue professional
activities. The word ‘Champagne’ is also protected in Swiss
law, where it is an appellation communale d’origine contrôlée
(registered municipal designation of origin). Moreover, the

The applicant seeks the partial annulment of the above-
mentioned Directive due to the fact that the Commission has
placed restrictions on the use of the applicant’s products,
polyacrylamides, as ingredients in cosmetic products. The

Pleas in law and main arguments

28.9.2002

EN

Official Journal of the European Communities

C 233/29

applicant submits that in doing so, the Commission has
disregarded several procedural rules set
forth in Council
Directive 76/768/EEC (2), as last amended by Commission
Directive 2000/41/EC (3), which the contested Directive pur-
ports to implement.

Action brought on 17 July 2002 by Fieldturf Inc. against
the Office for Harmonization in the Internal Market
(Trademarks and Designs)

the procedural safeguards set out

It alleges that
in the
Cosmetics Directive and in the Commission Decision estab-
lishing the Scientific Committee on Cosmetic Products and
Non Food Products intended for Consumers (4) have been
violated. By not adequately informing the applicant of the
ongoing deliberations and the status of
the Committee’s
opinion on acrylamide, by disrespecting procedural safeguards
aimed at preserving the impartiality of the decision-making,
by using scientific standards that are at odds with prevailing
EU decisions, by manifestly misinterpreting the data submitted
by the applicant and by not adequately allowing the applicant
to state its case and express its view on studies co-authored by
it,
the Commission has violated the applicant’s rights of
defence in a way which affects the validity of the contested
Directive. Furthermore, the defendant omitted to notify the
applicant of the Directive, so that the legislative process is
affected by a procedural deficiency which necessarily affects its
validity.

The applicant submits that the contested Directive improperly
to the Cosmetics
includes polyacrylamides in Annex III
Directive based on a calculation of cancer potency which is at
odds with the more specific and prevailing review of acrylami-
de under the EU chemicals legislation. The contested Directive
also infringes a series of well established principles of Com-
munity law, e.g. the duty to state reasons, the principle
of proportionality, the principle of uniform application of
Community law and the principle of equal treatment. Finally,
the Commission did not consider all interests at stake and
ignored the recent scientific findings.

( 1) OJ L 102, p. 19.
( 2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-
mation of the laws of the Member States relating to cosmetic
products (OJ L 262, p. 169).

( 3) Commission Directive 2000/41/EC of 19 June 2000 postponing
for a second time the date after which animal tests are prohibited
for
ingredients of cosmetic
products (OJ L 145, p 25).

ingredients or combinations of

( 4) Commission Decision 97/579/EC of 23 July 1997 setting up
Scientific Committees in the field of consumer health and food
safety (OJ L 237, p. 18).

(Case T-216/02)

(2002/C 233/52)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market (Trademarks and Designs) was brought before the
Court of First Instance of the European Communities on
17 July 2002 by Fieldturf Inc. Montreal (Canada), represented
by Dr Patrick Baronikians at Schwarz Kurtze Schniewind
Kelwing Wicke in Munich, Germany

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of
the Office for Harmonisation in the Internal Market
(Trademarks and Designs) of 15 May 2002 (Case R 462/
2001-1) concerning the registration of the trademark
‘LOOKS LIKE GRASS... FEELS LIKE GRASS... PLAYS LIKE
GRASS’ and direct that the claimed mark will be registered
for all the goods and service applied for;

— order the Office for Harmonisation in the Internal
Market (Trademarks and Designs) to pay the costs of the
applicant.

Pleas in law and main arguments

The trade mark con-
cerned:

The word mark ‘LOOKS LIKE
GRASS... FEELS LIKE GRASS...
PLAYS LIKE GRASS’ — appli-
cation No 1712918

Goods or service con-
cerned:

Goods and services in Classes 27
and 37 (i.a. synthetic surfaces for
athletic activities)

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of the appeal