Case T-386/02: Action brought on 16 December 2002 by Lamprecht A.G. against Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, textile industry, trade-mark law

C 55/32

EN

Official Journal of the European Union

8.3.2003

the applicant alleges breach of

Finally,
the principle of
proportionality and breach of the principle of the protection of
legitimate expectations based on the existence of Community
financing for the production and marketing of ‘Feta’.

( 1) OJ L 277, p. 10.
( 2) Judgment in Joined Cases C-289/96, C-293/96 and C-299/96

Denmark and Others v Commission [1999] ECR I-1541.

( 3) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin
for agricultural products and foodstuffs (OJ L 208, p. 1).

Action brought on 18 December 2002 by Fernando
Valenzuela Marzo against Commission of the European
Communities

(Case T-384/02)

(2003/C 55/83)

(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 18 December 2002 by Fernando
Valenzuela Marzo, residing in Brussels, represented by Marc-
Albert Lucas, lawyer.

The applicant claims that the Court should:

— annul the decisions of the head of the Administration of
Individual Rights unit of the Adminstration Directorate-
General of 16 November 2001 and 13 February 2002
refusing the applicant the second half of the installation
allowance;

— annul the decision of the appointing authority of 16 Sep-
tember 2002 rejecting the complaint through official
channels of 9 May 2002 against the abovementioned
decisions;

— order the Commission to pay the applicant the second
half of his installation allowance together with default
interest at the rate of 8 % per annum with effect from
11 April 2001 and until payment is made in full;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is an official at the Commission in Brussels. In
June 2000, on taking up his appointment, he settled in
Brussels. His spouse subsequently settled in Brussels with him
and organised the removal of the family, which took place on
11 April 2001, whilst continuing to be present at her
former home in Madrid, where their youngest daughter was
completing her secondary education. Consequently, his spouse
and daughter did not join him until July 2001, which they
declared to the Privileges and Immunities service.

By the contested decision, the Commission refused to pay the
applicant the second half of the installation allowance.

In support of his action, the applicant pleads an error of law
and a manifest error of assessment. According to the applicant,
the administration attached decisive importance to the declar-
ations made by his spouse and daughter to the Privileges and
Immunities service. The applicant states that the concept of
installation is a factual concept and that the text of the Staff
Regulations does not prescribe any particular mode of proof.

The applicant also pleads an error of law and an omission of
essential facts, since the administration considered the period
laid down by Articles 5(4) and 9(3) of Annex VII to the Staff
Regulations to be a mandatory time-limit and did not consider
the possibility of waiving it by reason of the complainant’s
establishment as an official on taking up his appointment and
the fact that his daughter was unable to join her parents in
Brussels before the end of the school year.

Action brought on 16 December 2002 by Lamprecht A.G.
against Office for Harmonisation in the Internal Market
(trade marks and designs) (OHIM)

(Case T-386/02)

(2003/C 55/84)

(Language of the case: Spanish)

An action against Office for Harmonisation in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
16 December 2002 by Lamprecht A.G., whose registered
office is in Madrid, represented by Enrique Armijo Chávarri
and Antonio Castán Pérez-Gómez.

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.