Case T-278/02: Action brought on 10 September 2002 by Dyson Limited against the Office for the Harmonisation in the Internal Market
Date: 2002-11-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), maintenance

C 289/28

EN

Official Journal of the European Communities

23.11.2002

the transactions of

technique’. Using this technique,
the
applicants that are made at a price higher then the average
price, are brought down to a price equal to the average price.
According to the applicants, the Commission did not apply
the average-to-transaction methodology correctly as a result
of using the ‘zeroing technique’. The applicants submit that
the objective of the average-to-transaction methodology is to
ensure a fair comparison and not to yield higher dumping
margins.

( 1) Commission Regulation (EC) No 2479/2001 of 17 December
2001 imposing a provisional anti-dumping duty on imports of
recordable compact disks originating in Taiwan (OJ L 334, p. 8).
( 2) Council Regulation (EC) No 1050/2002 of 13 June 2002 imposing
a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of recordable compact disks
originating in Taiwan (OJ L 160, p. 2).

( 3) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ 1996, L 56, p. 1).

Action brought on 12 September 2002 by Forum 187 asbl
against the Commission of the European Communities

(Case T-276/02)

(2002/C 289/52)

(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 12 September 2002 by Forum 187
asbl, Brussels, Belgium, represented by Mr Alastair Sutton,
barrister and Mr James Killick, barrister.

The applicant claims that the Court should:

— Annul the Commission’s Notice of its decision to initiate
the procedure laid down in Article 88 (2) of the EC Treaty
published in the OJ C 147, p. 2 on 20 June 2002.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is an association bringing together more than
230 multinational companies, who together have invested
hundreds of millions of euros in the establishment of coordi-
nation centres in Belgium, based on legislation dating from the
early 1980s permitting the establishment of coordination
centres for multinational companies.
It explains that this
legislation was found by the Commission on two separate
occasions in 1984 and 1987 to fall outside Community rules
on state aids and that, encouraged by these findings, the
coordination centres invested in Belgium and have, over the
last 15 years, significantly expanded their presence there.

The applicant states that the Commission’s decision to initiate
the procedure laid down in Article 88(2) EC in respect of this
Belgian legislation (the contested decision) abruptly, arbitrarily
and without any adequate reasoning re-classifies it as an aid
within the meaning of Article 87(1) and reaches preliminary
negative conclusions as to its compatibility with the common
market, thereby ‘at a stroke’ removing legal certainty and
infringing the legitimate expectations of the Belgian Coordi-
nation Centres.

The applicant submits that the Commission’s decision is
unlawful, being in breach of Article 1(b)(v) of Regulation 659/
1999, and has no other basis in Community law. The
Commission’s alternative legal basis for its decision to the
effect that it is entitled to reverse a decision taken 15 years
earlier (either under Article 1(b)(v) or under general adminis-
trative principles) is likewise unfounded in Community law
and should be annulled. In particular, this alternative legal
basis for the Commission decision infringes the principles of
legal certainty and legitimate expectations. The applicant
considers therefore that, especially taking into account the
novel legal basis upon which the decision purports to be taken
and the substantial economic interests involved, the decision
is inadequately reasoned, in breach of Article 253, and should
be annulled.

Action brought on 10 September 2002 by Dyson Limited
against the Office for the Harmonisation in the Internal
Market

(Case T-278/02)

(2002/C 289/53)

(Language of the case: English)

— Take such other or further steps as justice may require.

An action against the Office for the Harmonisation in the
Internal Market was brought before the Court of First Instance

23.11.2002

EN

Official Journal of the European Communities

C 289/29

of the European Communities on 10 September 2002 by
Dyson Limited, Malmesbury, Wiltshire (United Kingdom),
represented by D. Barron, C. Jones and C. Loweth, Lawyers.

Communities on 15 September 2002 by J.J. Pikaart and
Others, represented by M.J. van Dam and R.D. Ouwerling.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the

Office of 2 July 2002 (Case R655/2001-1),

— remit the decision to the Board for further consideration
in respect of the other absolute grounds of refusal raised
by the examiner under Articles 7(1)(b) and 7(3) of
Regulation No 40/94,

— order the Office to pay the applicant’s costs.

Pleas in law and main arguments

Trade Mark:

Goods and services:

Decision
before
Appeal:

challenged
the Board of

Pleas in law:

‘Feature of goods’ consisting of
‘a transparent bin or collection
chamber forming part of an exter-
nal surface of a vacuum cleaner’
— Application No 522144

‘Apparatus for cleaning, polishing
and shampooing floors and car-
carpet
pets; vacuum cleaners;
shampooers; floor polishers; parts
and fittings for all the aforesaid
goods’
in Class 7 of the Nice
classification).

Refusal by the examiner to regis-
ter.

Misinterpretation
of
Article 7(1)(a) of Regulation No
40/94.

Action brought on 15 September 2002 by J.J. Pikaart and
Others against Commission of the European Communities

(Case T-280/02)

(2002/C 289/54)

(Language of the Case: Dutch)

An action against Commission of the European Communities
was brought before the Court of First Instance of the European

The applicant claims that the Court should:

(1) Annul the Decision of the European Commission of

16 July 2002 (E1/L 02157 D(2002) 11796;

(2) Order the defendants to pay the costs.

Pleas in law and main arguments

The applicants own the inland waterway vessel Factotum. In
1997 the mid and bow sections of the Factotum were replaced.
At the same time the tonnage of the Factotum was increased
through lengthening the mid and bow sections. The old mid
and bow sections were left unused by the applicants. The
original plans to make this segment into a pusher craft were
not put into effect because of a possible old-for-new obligation
pursuant to Regulation No 1101/89 (1).

the Netherlands Fund imposed a levy on the
However,
applicants pursuant
in Regu-
to the old-for-new rule
lation 1101/89. According to the applicants, the Factotum
was hereby regarded as a newly constructed motor-vessel.

The applicants then asked the Commission how Article 8
of Regulation 1101/89 should be applied in the specific
circumstances. The applicants’ present action contests the
interpretation given by the Commission.

The applicants submit that the alterations to the Factotum did
not constitute a newly constructed vessel or any of the other
cases set out in Article 8 of Regulation 1101/89. According to
the applicants, the replacement of the section of the Factotum
increases the total capacity of inland waterway vessels only in
so far as it lengthens the Factotum. In other words, the old-
for-new obligations should have been limited to the additional
tonnage.

The applicants also submit that if the old mid and bow section
were to be converted to a pusher vessel, that is no reason to
impose old-for-new obligation in respect of the motor-vessel
tonnage of the Factotum. The applicants submit that this
extension concerns pusher vessel tonnage for which the old-
for-new obligations are less severe than those for motor-vessel
tonnage.

(1) Council Regulation (EEC) No 1101/89 of 27 April 1989 on
structural improvements in inland waterway transport (OJ L 116,
p. 25).