Case T-392/02: Action brought on 26 December 2002 by Solvay Pharmaceuticals B.V. against Council of the European Union
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: Council of the European Union, action for annulment (EU), animal nutrition, food additive, veterinary drug, veterinary legislation, withdrawal from the market

8.3.2003

EN

Official Journal of the European Union

C 55/33

Applicant

Pleas in law and main arguments

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonization in the Internal Market (OHIM)
of 1 October 2002 in Case 114/2000-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The Community trade
mark concerned:

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Grounds of claim:

J. Tricot & Sons Ltd.

—

‘EMOS’
Application
No 133637 for goods in Class 25
(articles of clothing)

German trade mark ‘EMOSWISS’
registered in respect of goods
within Classes 10, 24 and 25

Application rejected

Appeal dismissed

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (like-
lihood of confusion).

Action brought on 26 December 2002 by Solvay Pharma-
ceuticals B.V. against Council of the European Union

(Case T-392/02)

(2003/C 55/85)

(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 26 December 2002 by Solvay Pharmaceut-
icals B.V., established in Weesp (Netherlands), represented by
Callista Meijer, Francis Herbert and Michel L. Struys, lawyers,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Council Regulation (EC) No 1756/2002 of 23 Sep-
tember 2002 amending Directive 70/524/EEC concern-

ing additives in feedingstuffs as regards withdrawal of the
authorisation of an additive and amending Commission
Regulation (EC) No 2430/1999;

— order the Council to pay the costs;

— in the alternative, should the application be dismissed on
the merits, apply the first subparagraph of Article 87(3)
of the Rules of Procedure and order the Council to pay
the costs, in view of the persistent lack of cooperation
and transparency on the part of the Commission in the
administrative handling of the case.

The applicant manufactures Nifursol, a feedingstuff additive.
The applicant is contesting Council Regulation No 1756/
2002 (1). The contested regulation amends Council Directive
70/524/EEC (2) concerning additives in feeding-stuffs and
withdraws authorisation to place Nifursol on the market. That
authorisation is linked, by virtue of Regulation No 2430/
1999 (3), to the person responsible for putting the product
into circulation, in this case the applicant.

In support of its application, the applicant alleges infringement
of Articles 9m and 3a(b) of Directive 70/524/EEC and breach
of the precautionary principle. The sixth recital in the preamble
to the contested regulation states that it could not be guaran-
teed that Nifursol does not present a risk for human health.
According to the applicant,
the Council altered the test
referred to in the abovementioned articles according to which
authorisation may be withdrawn only where it becomes
apparent that the additive adversely affects human or animal
health or the environment, or harms the consumer by
impairing the characteristics of products.

The applicant further points out that the Council cannot rely
on the precautionary principle since no reference is made
thereto. In any event, the applicant claims that the Council is
in fact choosing a purely hypothetical risk criterion which is
irreconcilable with the case-law of the Court of First Instance
which rules out a zero-risk level when applying the precaution-
ary principle.

The applicant also alleges infringement of the fifth indent of
Article 9m of Directive 70/524 as amended and of the general
principle of equal treatment. According to the applicant, the
Council and the Commission could not base themselves on
the inadequacy of the information provided in order to
withdraw authorisation, when the Commission has not made
use of its powers to enjoin the person responsible for placing
an additive on the market to provide it with information.

C 55/34

EN

Official Journal of the European Union

8.3.2003

the applicant alleges breach of

Finally,
the fundamental
principles of legal certainty, sound administration and good
faith. The applicant makes the point that it has, on numerous
occasions, approached the Commission without ever obtaining
any indication which would have enabled it to provide results
likely to be acceptable in the eyes of the Commission and the
Council.

( 1) Council Regulation (EC) No 1756/2002 of 23 September 2002
amending Directive 70/524/EEC concerning additives in feeding-
stuffs as regards withdrawal of the authorisation of an additive
and amending Commission Regulation (EC) No 2430/1999 (Text
with EEA relevance) (OJ 2002 L 265, p. 1).

( 2) Council Directive 70/524/EEC of 23 November 1970 concerning
additives in feeding-stuffs (OJ, English Special Edition 1970 (III),
p. 840).

( 3) Commission Regulation (EC) No 2430/1999 of 16 November
1999 linking the authorisation of certain additives belonging to
the group of coccidiostats and other medicinal substances in
feedingstuffs to persons responsible for putting them into circu-
lation (Text with EEA relevance) OJ 1999 L 296, p. 3.

Pleas in law and main arguments

Trade mark for which
Community registration
sought:

Goods or services:

A three-dimensional mark in the
form of a bottle standing on its
head in the colours transparent
and white — Application
No 1162395

Goods of Classes 3 and 20 (includ-
ing soaps, washing and bleaching
preparations, cleaning and pol-
ishing preparations and artificial
containers for liquid, gel-like and
pasty preparations)

Decision
before
Appeal:

challenged
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of the complaint

Pleas in law:

— The mark is distinguished by
a number of special features
and has distinctive force.

— The Board of Appeal disre-
characteristic
the
garded
geometry of the mark.

— The mark has acquired pro-
tection in several Member
States.

Action brought on 27 December 2002 by Henkel KGaA
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-393/02)

(2003/C 55/86)

(Language of the case: German)

Action brought on 27 December 2002 by Arnaldo Lucac-
cioni against Commission of the European Communities

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
27 December 2002 by Henkel KGaA, Düsseldorf (Germany),
represented by C. Osterrieth, Rechtsanwalt, with an address
for service in Luxembourg.

The applicant claims that the Court should:

(Case T-394/02)

(2003/C 55/87)

(Language of the case: French)

— set aside the decision of the Fourth Board of Appeal of
the Office for Harmonisation in the Internal Market of
3 October 2002 in Case R 313/2001-4, concerning
Community
application
No 1162395;

trade mark

registration

— order the Office to pay the costs.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 December 2002 by Arnaldo
Lucaccioni, residing in St-Leonards-on-Sea (United Kingdom),
represented by Juan Ramón Iturriagagoitia and Karine Delvol-
vé, lawyers.