Case T-308/02: Action brought on 7 October 2002 by SGL Carbon AG against the Commission of the European Communities
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), carbon, fine, guarantee, interest, payment

7.12.2002

EN

Official Journal of the European Communities

C 305/27

The applicant claims that the Court should:

Action brought on 7 October 2002 by SGL Carbon AG
against the Commission of the European Communities

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade,
Marks and Designs) of 23 July 2002 (appeal No R 526/
2001-1);

— order the Office for Harmonisation in the Internal Market
to reject opposition
and Designs)

(Trade, Marks
No B 262651 filed by the opponent.

(Case T-308/02)

(2002/C 305/58)

(Language of the case: German)

Pleas in law and main arguments

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 October 2002 by SGL Carbon
AG, Wiesbaden (Germany), represented by M. Klusmann and
F. Wiemer, Rechtsanwälte.

Party applying for regis-
the Com-
tration of
munity trade mark:

The applicant (formerly Byk Guld-
en Lomberg Chemische Fabrik
GmbH)

The applicant claims that the Court should:

Trade mark in respect Word mark ‘XION’ for goods in
Class 5 (Medicines) — Application
of which registration is
No 1207976
sought:

— Annul the decision of 24 July 2002 in so far as it refuses

to facilitate the making of payments;

Proprietor of the trade
mark or sign right relied
on in the opposition
proceedings:

Trade mark or sign right
relied on in the oppo-
sition proceedings:

N.V. Organon

The national and international
word mark ‘XYVION’ for goods in
Class 5 (inter alia, medicines and
pharmaceutical preparations for
human use)

— Annul the decision of 24 July 2002 in so far as it
seeks payment of default interest for the period from
24 October 2001 to the date of receipt of the declaration
of securities at a rate in excess of 6,04 %;

— In the alternative, reduce as appropriate the default

interest laid down in the decision;

— Order the defendant to pay the costs of the proceedings.

Decision of Opposition
Division:

Rejection of opposition

Pleas in law and main arguments

Decision of Board of
Appeal:

The decision of the Opposition
Division was annulled and the
opposition allowed.

Pleas in law:

— Infringement

of
Article 8(1)(b) of Regulation
No 40/94 (1);

— The marks are not so similar
as to create a likelihood of
confusion.

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

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

By a decision of 18 July 2001 the Commission imposed a fine
on the applicant (1). The applicant requested the Commission
in October 2001 to set aside the requirement that securities be
lodged in respect of the fine claim and ancillary demands, and
to facilitate the undertaking in making payments in view of
the difficult economic situation. The Commission turned down
this request in the decision under challenge, whereupon the
applicant lodged the required securities. The Commission is
seeking increased interest of 8,04 % for the period up to the
lodgment of the securities.

The applicant challenges that decision and argues that the
Commission committed errors of
form and judgment in
turning down its request. On formal grounds alone, the
Commission, it claims, failed to provide adequate grounds for
its negative decision. That decision is also substantively
defective in regard to the exercise of judgment as it is not clear
that the Commission properly exercised its discretion.

C 305/28

EN

Official Journal of the European Communities

7.12.2002

The applicant further takes issue with the supplementary fixing
of interest. The applicant invokes deferment of payment and
protection of legitimate expectations and raises the objection
of misuse of powers. The Commission, it claims, did not make
it clear during the period required by it for taking a decision
that it would be seeking increased interest for that period.
Instead,
it would forego
enforcement measures during its own decision-making period.
The applicant regards the Commission’s decision as being at
variance with this.

the Commission intimated that

( 1) The applicant has brought an action against that decision (Case
T-239/01 SGL Carbon v Commission, OJ 2002 C 3, p. 34).

Action brought on 30 September 2002 by Athanassios
Theodorakis against Council of the European Union

(Case T-310/02)

(2002/C 305/59)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 30 September 2002 by Athanassios Theodo-
rakis, residing in Uccle (Belgium), represented by Spyros
A. Pappas, lawyer.

The applicant claims that the Court should:

— annul the decision of 10 July 2002 of the appointing
authority replying to his complaint of 24.05.2002;

— annul the decision of the appointing authority of the
the RELEX
Council concerning the appointment of
Director General of the Council and recommence the
selection procedure as initially requested by the applicant;

— order the Council of the European Union to pay the costs.

applications was 18 March 2002. The Commission notified
that vacancy notice to its staff on 14 March 2002. The
deadline for the submission of applications, indicated in that
publication, was 2 April 2002.

The applicant submitted his application after the deadline set
down in the Council’s vacancy notice expired, but before
the expiry of the deadline set down in the Commission’s
publication. The applicant’s application was rejected by the
Council as inadmissible.

In support of his action, the applicant alleges breach of the
principle of sound administration. According to the applicant,
there cannot be contradictory decisions within a single admin-
istrative authority and a single legal person, such as constituted
by the European Communities. The applicant claims moreover
that a more recent or more specific act, such as the Com-
mission’s publication, prevails.
In the applicant’s view, the
principle of sound administration entails the application of the
interpretation which is most plausible for the official.

The applicant further alleges infringement of Article 29(1) of
the Staff Regulations and of Article 1(3) of Annex III to the
Staff Regulations inasmuch as the same deadline did not apply
to all the potential candidates, irrespective of which institution
they belonged to.

Moreover, the result of applying the deadline in the Council’s
vacancy notice was that officials of the Commission and the
other institutions were discriminated against by comparison
with those of the Council inasmuch as officials at the Council
had more time. Finally, the applicant alleges misuse of powers.

Action brought on 10 October 2002 by Vitaly Lissot-
schenko and Joachim Hentze against the Office for
Harmonisation in the Internal Market (Trade, Marks and
Designs)

(Case T-311/02)

(2002/C 305/60)

(Language of the case: German)

Pleas in law and main arguments

The applicant is an official in the Commission. He submitted
an application for the post of Director General at the Council.
That post was published on 25 February 2002 in Vacancy
Notice 412/02. The same day the Council sent that vacancy
notice to the other institutions. The deadline for submitting

An action against the Office for Harmonisation in the Internal
Market (Trade, Marks and Designs) was brought before the
Court of First Instance of the European Communities on
10 October 2002 by Vitaly Lissotschenko, of Dortmund
(Germany), and Joachim Hentze, of Werl (Germany), represent-
ed by B. Hein, Rechtsanwalt.