Case T-312/02: Action brought on 10 October 2002 by Lucio Gussetti against Commission of the European Communities
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), family benefit, orphan, pay, regulations for civil servants

7.12.2002

EN

Official Journal of the European Communities

C 305/29

The applicants claim that the Court should:

Action brought on 10 October 2002 by Lucio Gussetti
against Commission of the European Communities

— annul the decision adopted on 31 July 2002 by the
Second Board of Appeal of the Office for Harmonisation
in the Internal Market
(Trade, Marks and Designs),
concerning appeal No R 0363/2000-2, in so far as it
rejects the application for registration of the mark ‘Limo’
for goods in Class 9, being ‘Lasers for non-medical
purposes, in particular diode lasers, lasers for measuring
technology, lasers for the treatment of materials, lasers
testing
for the printing industry,
and quality control, lasers for data processing or data
transmission; optical and/or electronic apparatus and
instruments, in particular imaging systems, microoptical
systems, control electronics, optical systems with inte-
lenses; optical
grated electronics and/or light sources;
lenses, supplementary lenses, prisms, corrective lenses;
diffraction apparatus (microscopy)’ and in Class 10, being
‘Lasers for medical purposes’;

lasers for material

(Case T-312/02)

(2002/C 305/61)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 October 2002 by Lucio Gus-
setti, represented by Massimo Merola, avvocato.

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

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the decision of the Directorate General Adminis-
tration of the Commission, notified by letter ADMIN B.3
D(02) 8305 of 15 February 2002 by which, pursuant to
Article 67(2) of the Staff Regulations, the Administration,
with effect from 1 June 2001, retroactively deducted
EUR 273.48 from his monthly salary;

The Community trade
mark applied for:

the word mark ‘LIMO’ — appli-
cation No 1290022

— order the Commission to pay the costs.

Goods or services:

Goods in Classes 9, 10 and 11
(including inter alia lasers for non-
medical purposes, lasers for medi-
cal purposes and lighting appar-
atus and installations)

Decision
before
Appeal:

contested
the Board of

refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Grounds of claim:

rejection of
the application in
respect of goods in Classes 9 and
10 and leave for publication of
the application in respect of goods
in Class 11

no absolute bars to registration
under Article 7(1)(b) and (c) of
Regulation (EC) No 40/94 (1).

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

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

Pleas in law and main arguments

The applicant in the present case is an official working for the
defendant. Pursuant to Article 67(2) of the Staff Regulations,
EUR 68,48, corresponding to family allowances paid by the
Belgian ‘allocations familiales pour travailleurs salariés’ scheme
to his late wife in respect of their dependant child, was being
deducted from his monthly Community salary.

The present case is based on a change, in accordance with the
Belgian Law of 12 August 2000, in the practice of the Belgian
authorities consisting in no longer deducting the Communities
orphan’s pension.

In his complaint, the applicant raised the difficulty of consist-
ency between the Communities and Belgian orphan’s pensions,
pointing out that the EUR 68,48 being withheld was not
attributable to family allowances since his late wife was no
longer in receipt of them. The defendant was wrong to
consider the sums paid by the Belgian authorities by way of
orphan’s allowances and those paid by the Communities’
administration to be of like nature within the meaning of
Article 67(2) of
the
deduction in question is per se an error.

the Staff Regulations. Accordingly,

C 305/30

EN

Official Journal of the European Communities

7.12.2002

In support of his claims, the applicant alleges:

— the retroactive application of

the contested decision
infringes the principles underlying recovery of sums
overpaid and,
the Staff
Regulations as well as the principles of legitimate expec-
tations and sound administration;

in particular, Article 85 of

— for the purpose of Article 67 of the Staff Regulations, the
orphan’s pension is not of like nature to the dependent
child allowance. Therefore, the payments made by the
administration until February 2002 were not manifestly
irregular; rather, it is the deductions under the contested
decision which are in point of fact irregular.

Action brought on 11 October 2002 by David Meca-
Medina and Igor Majcen against the Commission of the
European Communities

(Case T-313/02)

(2002/C 305/62)

(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 11 October 2002 by David Meca-
Medina, residing in Barcelona (Spain), and Igor Majcen, residing
in Ljubljana (Slovenia), represented by J.-L. Dupont, lawyer.

The applicants claim that the Court should:

They claim that the Commission manifestly erred in fact and
in law in finding that, with respect to anti-doping rules, the
IOC is not an undertaking for the purposes of Community
law. It is clear that the IOC cannot be treated in the same way
as a public institution providing social security services and
that it does not exercise the prerogatives of a public authority.
Moreover, the rules in question affect the conduct of all
athletes on the market for the sports which the applicants
perform.

In addition, the applicants claim that the Commission commit-
ted a manifest error of assessment in finding that,
in the
present case, the limitation on the freedom of athletes is not a
restriction of competition within the meaning of Article 81
EC, on the ground that such a limitation is inherent in the
organisation and smooth running of competitive sport. The
Commission’s findings constitute a manifest misapplication of
the criteria laid down by the Court of Justice in paragraph 97
of the judgment in Wouters (1) and the restrictive effects of the
IOC rules in question are clearly not inherent in the pursuit of
the praiseworthy aims of
the campaign against doping.
According to the applicants, it is for the Commission — in
accordance with the ‘necessity test’ and/or the ‘proportionality
test’ — to declare that a rule which has been proven to have
no scientific basis can in no way satisfy the requirements of
such tests.

Finally, the Commission’s assessment is manifestly incorrect in
so far as it fails to recognise Article 49 EC as having any direct
horizontal effect. It must be found that, since they do not
satisfy a ‘test of necessity’, the contested IOC rules also infringe
Article 49 EC.

(1) Case C-309/99 Wouters [2002] ECR I-1577.

— annul the Commission’s decision notified to the appli-
cants on 5 August 2002 rejecting the complaint of
31 May 2001 against the International Olympic Com-
mittee;

Action brought on 15 October 2002 by Marie-Claude
Girardot against the Commission of the European Com-
munities

Pleas in law and main arguments

By the contested decision,
the Commission rejected the
complaint lodged by the applicants, who are professional
swimmers, that certain practices and rules of the International
Olympic Committee (IOC) concerning the fight against doping
were contrary to European competition law. The applicants
objected, in particular, to the fact that, in connection with the
detection of the substance nandrolone, the IOC continues to
apply a maximum level which has now been found to lack
scientific merit.

(Case T-316/02)

(2002/C 305/63)

(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 15 October 2002 by Marie-Claude