Case T-4/03: Action brought on 8 January 2003 by Giorgio Lebedef against the Commission of the European Communities
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), assistant, equal treatment, promotion

C 55/38

EN

Official Journal of the European Union

8.3.2003

Action brought on 7 January 2003 by Everlast World’s
Boxing Headquarters Corporation against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

Pleas in law:

— There

no

are

absolute
grounds for refusal to regis-
the mark within the
ter
meaning of Article 7(1)(c)
and (b) of Regulation (EC)
No 40/94 (1).

— The trade mark has become
distinctive in relation to the
goods or services for which
registration is requested in
use
consequence of
which has been made of it,
in
with
accordance
Article 7(3) of Regulation
(EC) No 40/94.

the

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

Community trade mark (OJ 1993 L 11, p. 1).

Action brought on 8 January 2003 by Giorgio Lebedef
against the Commission of the European Communities

(Case T-4/03)

(2003/C 55/93)

(Language of the case: French)

(Case T-3/03)

(2003/C 55/92)

(Language of the case: German)

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
7 January 2003 by Everlast World’s Boxing Headquarters
Corporation, New York, represented by A. Barth, Rechtsan-
wältin.

The applicant claims that the Court should:

— set aside paragraphs 2 and 3 of the operative part of
Decision R 391/2001-1 of the First Board of Appeal of
the Office for Harmonisation in the Internal Market of
30 October 2002;

— order the Office to pay the costs.

Pleas in law and main arguments

Trade mark for which
Community registration
sought:

The word mark ‘Choice of Cham-
pions’
Application
No 1508498

—

Goods or services:

Goods of Classes 18, 25 and 28

Decision
before
Appeal:

challenged
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

the

Annulment of
examiner’s
decision in respect of ‘Leather and
imitations of leather and goods
made from these materials’ so far
as contained in Class 18; ‘animal
skins and hides’, ‘trunks and trav-
elling bags; umbrellas, parasols
and walking sticks’ and ‘Play-
things; decorations for Christmas
trees’. Dismissal of the complaint
in respect of ‘whips, harness and
saddlery’,
footwear,
‘Clothing,
headgear’ and ‘Games; gymnastic
and sporting articles’ so far as
contained in Class 28, and dis-
missal of the application for dis-
tinctive force as a result of use in
respect of those goods.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 January 2003 by Giorgio Lebedef,
residing in Senningerberg (Luxembourg),
represented by
G. Bounéou, avocat, with an address for service in Luxembourg

The applicant claims that the Court should:

— annul

the
the decision of Appointing Authority of
Commission of the European Communities of 21 Decem-
ber 2001 not to include the applicant’s name in the list
of most deserving officials and not to promote him to
grade B1 in the promotion exercise for 2001 (decision
adopted following reconsideration of the applicant’s file
during the 2001 promotion exercise);

8.3.2003

EN

Official Journal of the European Union

C 55/39

— annul, to the extent necessary, the decision notified by
Note 41280 of the Vice-President of the Commission of
the European Communities, Mr Neil Kinnock, dated
25 September 2002, not to include the applicant’s name
in the list of most deserving officials and not to promote
him to grade B1 in the promotion exercise for 2001
(decision in reply to the applicant’s Claim No R 220/
02, brought for the annulment of the abovementioned
decision of 21 December 2001);

— order the Commission of the European Communities to

pay such costs as the Court may assess.

Pleas in law and main arguments

the applicant alleges,

In support of his action,
first, an
infringement of Article 45(1) of the Staff Regulations and of
the principle of non-discrimination. The applicant further
alleges an infringement of the principle of respect for the rights
of the defence, an infringement of the principle prohibiting
arbitrary proceedings and of the obligation to state reasons, an
infringement of the principle of legitimate expectations and of
the rule ‘patere legem quam ipse fecisti’ and, lastly, infringe-
ment of the duty to have regard for the interests of officials.

Action brought on 9 January 2003 by Ayassami & Fils
EURL and Others against the Council of the European
Union

(Case T-5/03)

(2003/C 55/94)

(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 9 January 2003 by Ayassami & Fils EURL,
established in Saint-François (Guadeloupe), and 23 other
undertakings, represented by John Sylvanus Dagnon, avocat.

The applicants claim that the Court should:

— Annul Council Decision 2002/973/EC of 10 December
2002 amending Decision 89/688/EEC of 22 December
1989 concerning the dock dues in the French overseas
departments Commission Regulation (OJ 2002 L 337,
p. 83).

— Declare that Council Decision 89/688/EEC of 22 Decem-
ber 1989 concerning the dock dues in the French overseas
departments (OJ 1989 L 399, p. 46) is inapplicable.

Pleas in law and main arguments

The applicant companies in the present case object to the
extension by the contested act of the exemption arrangement
from Article 90 of the Treaty in favour of the French overseas
departments.

In support of their arguments, they submit that there is
infringement of Article 299(2) of the Treaty in so far as the
Council adopted the contested measure in breach of the
conditions laid down therein. The preparatory acts leading up
to the contested decision, particularly the report of
the
Commission to the Council dated 24 November 1999, and
points 3 and 5 of the statement of the grounds for the decision
proposal by the Commission to the Council of 23 August
2002 (COM 2002 473 FINAL) show that the prerequisite
conditions for validly authorising an extension of the special
tax arrangements in favour of the overseas departments have
not yet been satisfied.

As regards Decision 89/688 of 22 December 1989, the effects
the
of which were extended by the contested decision,
applicants question its legality on the basis of Article 241 of
the Treaty, on the grounds that the Council was not competent
to authorise it
that that decision
constituted a derogation from Article 95 of the EC Treaty
(now Article 90) and thus could no longer be taken by the
Council after expiry of the two-year time period provided for
in 1957, in the second subparagraph of Article 227(2) of the
EC Treaty.

in 1989. They submit

Action brought on 10 January 2003 by COLDIRETTI —
Federazione Regionale Coltivatori Diretti della Sardegna e
CIA — Confederazione Italiana Agricoltori della Sardegna
against Commission of the European Communities

(Case T-9/03)

(2003/C 55/95)

(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 January 2003 by COLDIRETTI
— Federazione Regionale Coltivatori Diretti della Sardegna e
CIA — Confederazione Italiana Agricoltori della Sardegna,
represented by Giovanni Dore and Fabio Ciulli, lawyers.