Case T-354/02: Action brought on 25 November 2002 by Bristol-Myers Squibb International Corporation against the Commission of the European Communities
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: European Commission, General Court (EU), action for annulment (EU), marketing, medicinal product

22.2.2003

EN

Official Journal of the European Union

C 44/31

Trade mark or
opposed:

sign Word marks INTESA (two Italian
marks, one international mark
and a Greek, a Finnish, a Swedish,
a UK and an Irish mark), for goods
in classes 9, 14, 18 and 21, in the
case of one of the two Italian
marks, and class 3 in the case of
the others. The opposition was
directed against the goods men-
tioned in the application as being
in classes 3 and 21.

Ruling of the Opposition
Division:

opposition partially upheld (risk
of confusion in the case of goods
of class 3).

Decision of the Board of
Appeal:

appeal dismissed.

Pleas in law:

— relevance of the phonetic dif-
ference between the conflict-
ing marks

— conceptual

difference

between the marks

— no risk of confusion between
the conflicting marks.

Action brought on 25 November 2002 by Bristol-Myers
Squibb International Corporation against the Commission
of the European Communities

(Case T-354/02)

(2003/C 44/61)

(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 25 November 2002 by Bristol-
Myers Squibb International Corporation, Brussels, Belgium,
represented by David Anderson QC, Kelyn Bacon, Barrister
and Ian Dodds-Smith, Solicitor.

The applicant claims that the Court should:

— annul Commission Decision C(2002) 3370 dated 9 Sep-

tember 2002;

— order that the Commission pays the applicant’s costs

Pleas in law and main arguments

The contested decision requires the Member States to amend
the national marketing authorisations as listed in annex I
to the Decision. The amendments concern the marketing
authorisations for Capoten and associated names, to produce
a harmonised summary of product characteristics.

The applicant represents the various subsidiary companies that
are the marketing holders for Capoten throughout the EU.
Capoten, based on the active substance captopril, is a medicinal
product commonly know as an ACE-inhibitor. The product
was first authorised in the EU in 1980.

The authorisations for Capoten in the EU were obtained under
national marketing authorisation procedures, pursuant
to
Directive 65/65/EEC (1). As a result, some differences existed
between the authorisations in the EU Member States as regards
the wording and extent of information given. According to the
applicant,
the therapeutic indications were similar in all
Member States.

Following patent expiry in the individual Member States,
generic captopril products have been authorised in those
states. The applicant believes that after an attempt to achieve
mutual recognition in Italy of the authorisation by France of
one of those generic products, Italy referred the matter to the
Committee for Proprietary Medicinal Products. The rationale
of the referral was that the therapeutic indications in the
summary of product characteristics were different and that a
harmonisation was necessary for public health reasons. The
contested decision was adopted following the referral.

In support of its application, the applicant submits that the
contested decision is invalid on the ground of
lack of
competence of the European Agency for the Evaluation of
Medicinal Products, the Committee for Proprietary Medicinal
Products and the Commission. According to the applicant, the
referral to the Committee for Proprietary Medicinal Products
was not in accordance with Article 30 of Directive 2001/83/
EC on the Community code relating to medicinal products for
human use (2). The existence of divergent national decisions
regarding the authorisation of a product is a necessary, but not
a sufficient condition for such a referral. According to the
applicant, the referring body must additionally identify the

C 44/32

EN

Official Journal of the European Union

22.2.2003

question to be considered and that question must relate to the
quality, safety or efficacy of the product. The applicant claims
that these conditions were not satisfied.

— order the defendant to pay the costs.

The applicant furthermore claims that the contested decision
infringed essential procedural requirements. According to the
applicant, the procedure breached the applicant’s rights of
defence and its right to be heard. The applicant was not given
the opportunity to comment on the key amendments to the
Capoten Summary of Product Characteristics. The procedure
also infringed the timetable provided for in Article 32 of
Directive 12001/83 and in the Commission’s Notice to
Applicants (1998 version).

invokes also the infringement of rules of
The applicant
Community law, like the principle of equal treatment, the duty
to give reasons, the principle of legitimate expectations and
the principle of proportionality.

Finally, the applicant claims that the contested decision is
vitiated by manifest errors of assessment.

( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-
mation of provisions laid down by Law, Regulation or Adminis-
trative Action relating to proprietary medicinal products (OJ
1965, p. 369).

( 2) Directive 2001/83/EC of the European Parliament and of the
Council of 6 November 2001 on the Community code relating to
medicinal products for human use (OJ L 311, p. 67).

Action brought on 5 December 2002 by Deutsche Post
AG and DHL International S.r.l. against the Commission
of the European Communities

(Case T-358/02)

(2003/C 44/62)

(Language of the Case: German)

Pleas in law and main arguments

In the applicants’ submission, it is apparent from the contested
decision that Poste Italiane SpA was continuously in deficit in
the postal services sector from 1994 to 1999 and that it
received State resources which served to offset the deficits. In
Article 2 of the decision, the Commission decided that that
State subsidy to Poste Italiane SpA did not constitute State aid
under Article 87(1) EC.

The applicants submit that, so far as concerns the offsetting of
losses of those postal services which, although forming part of
the universal service, have been opened up to competition, the
decision is incompatible with Article 87(1) EC as interpreted
in the Commission decision of 19 June 2002 (2). By that
decision the Commission established that the use of State
resources to offset losses recorded by a postal undertaking in
the sector of postal services that form part of the universal
are opened up to competition infringes
service but
Article 87(1) of the Treaty as a cross-subsidy not capable of
being approved where the losses are caused by rates of charges
which do not cover costs and which the postal undertaking is
not required to apply by a State measure.

the decision is all

The applicants contend that
the less
compatible with Article 87(1) EC in so far as it relates to loss-
making postal services which do not form part of the universal
service and have been opened up to competition for a long
time. Since the Italian postal operator has been recording only
losses for 50 years and those losses can therefore only have
been covered by State resources, the Commission should not
have ‘neglected’ the offsetting in respect of those postal services
from State resources but would have been obliged in that
respect too to examine whether there was a cross-subsidy
incompatible with Article 87(1) EC.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 December 2002 by Deutsche
Post AG, established in Bonn (Germany), and DHL Inter-
national S.r.l., established in Rozzano (Italy), represented by
J. Sedemund and T. Lübbig, lawyers.

The applicants further submit that no reason is stated as to
why the Commission in the contested decision, in contrast to
its decision of 19 June 2002, recognised the cross-subsidy as
involving a net extra cost which could be offset in the ‘general
economic interest’. At the same time, therefore, there is an
infringement of the duty to state reasons under Article 253
EC.

The applicants claim that the Court should:

— annul Commission Decision 2002/782/EC of 12 March
2002 on the aid granted by Italy to Poste Italiane SpA (1);

Finally,
the decision infringes the general prohibition of
discrimination under Article 12 EC, since the Commission has