Case T-109/03: Action brought on 28 March 2003 by Arran Aromatics Limited, Mr Iain Russel and Mr Allastair Rennick against the Commission of the European Communities
Date: 2003-06-07
Institutions: Court of First Instance
Subjects: World Trade Organisation, customs duties, import, infringement of EU law, international trade law, tropical fruit

7.6.2003

EN

Official Journal of the European Union

C 135/33

however, provides that operations to colour sugar or to form
sugar lumps constitute insufficient processing to confer OCT
origin. Those products of the applicant thus no longer qualify
for OCT origin.

The Kingdom of the Netherlands subsequently applied for a
derogation in favour of the applicant. That request was rejected
in the contested decision.

The applicant first of all raises an objection that Article 5(1)(g)
of Annex III to the OCT Decision is unlawful. In the applicant’s
view, it is incorrect to state that operations to colour sugar or
to form sugar lumps constitute insufficient processing for the
purpose of conferring OCT origin. The applicant submits that
this provision infringes the principle of non-discrimination
and that it is arbitrary and at variance with the principles of
the protection of legitimate expectations and of legal certainty.

The applicant goes on to argue that the Commission had no
power in view of the fact that the contested decision was
adopted after the expiry of the decision-making period of 75
working days laid down in Article 37(8)(a) of Annex III to the
OCT Decision. The applicant contends that the request for a
derogation ought
therefore to be deemed to have been
accepted pursuant to Article 37(8)(b) of Annex III to the OCT
Decision.

The applicant concludes by arguing that there has been a
breach of Article 37 of Annex III to the OCT Decision and a
manifest misappraisal of the facts. The applicant submits that
the Commission is confusing the conditions of Article 37 of
Annex III to the OCT Decision.

The applicant argues that cumulation of origin does not
represent an alternative solution for it. Importation of ACP
sugar cannot be justified in view of the high price. Such sugar,
it argues,
is also unsuitable with regard to quality. The
applicant submits that the condition governing derogation set
out in Article 37(4) of Annex III to the OCT Decision is
thereby also satisfied.

The applicant goes on to argue that, under Article 37(3)(b) of
Annex III to the OCT Decision, application of the existing
rules of origin would significantly reduce its prospects of
continuing to export to the EC. In its view, the Commission is
wrong to impose as a necessary condition for a derogation the
requirement that application of the existing rules of origin
would lead to cessation of its activities.

Commission, it argues, was wrong to turn down the request
for a derogation on the ground that, both for sugar from an
ACP country and for sugar from a non-ACP country, the added
value after processing by the applicant came to more than
45 %. According to the applicant, Article 37(7) of Annex III to
the OCT Decision makes no provision for such a comparison
and consequently makes no provision for any such ground for
rejection of the request for a derogation.

(1) Council Decision 91/482/EEC of 25 July 1991 on the association
of the overseas countries and territories with the European
Economic Community (OJ 1991 L 263, p. 1).

(2) Appendix 2 to Annex III to Council Decision 2001/822/EC of
27 November 2001 on the association of the overseas countries
and territories with the European Community (‘the OCT Decision’)
(OJ 2001 L 324, p. 1).

(3) Council Decision 2001/822/EC of 27 November 2001 on the
association of the overseas countries and territories with the
European Community (‘the OCT Decision’) (OJ 2001 L 314, p. 1).

Action brought on 28 March 2003 by Arran Aromatics
Limited, Mr Iain Russel and Mr Allastair Rennick against
the Commission of the European Communities

(Case T-109/03)

(2003/C 135/54)

(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 28 March 2003 by Arran Aro-
matics Limited, Isle of Arran, Scotland, Mr Iain Russel, Isle of
Arran, Scotland, and Mr Allastair Rennick,
Isle of Arran,
Scotland,
represented by Mr C. Pouncey, Solicitor and
Mr L. Van Den Hende, lawyer.

The applicant claims that the Court should:

— Order

the defendant

to pay damages pursuant

to
Article 288 EC for the losses sustained by them through
the breaches of community law set out in the application,
all sums to be increased with compensatory interest at a
rate of 8 % to be applied from the day on which the
damage materialised;

The applicant further contends that the Commission misap-
plied Article 37(7) of Annex III to the OCT Decision. The

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

— Order the defendant to pay legal interest on such sums as

are found to be due at a rate of 8 %;

C 135/34

EN

Official Journal of the European Union

7.6.2003

Pleas in law and main arguments

In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98 (1) and Commission Regulation
No 2362/98 (2), was WTO-incompatible. Following that ruling,
the United States, with WTO authorisation, adopted certain
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of
that company. The
applicants allege that as a result of the retaliatory measures,
the first applicant’s sales to the US decreased substantially
causing it to suffer serious material losses and subjecting the
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application
the
they submit
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality,
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
breach of law is manifest and serious and the rules of law
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the
applicants, entitling the latter to compensation.

that, by adopting Regulation 2362/98,

( 1) OJ L 210, 28.7.1998, p. 28.
( 2) OJ L 293, 31.10.1998, p. 32.

Action brought on 27 March 2003 by L’Oréal S.A. against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-112/03)

(2003/C 135/55)

the Court of First Instance of the European Communities on
27 March 2003 by L’Oréal S.A., Paris, France, represented by
Mr X. Buffet Delmas d’Autane, lawyer.

A further party to the proceedings before the Board of Appeal
was Revlon (Suisse) S.A.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of
the OHIM of 15 January 2003 regarding the appeal
No R0396/2001-4 relating to the opposition proceedings
No B 215048 (Community application No 1011576);

— order that the costs of the action and the appeal are to be

borne by the OHIM.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

L’Oréal S.A.

Community trade mark
sought:

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Mark or sign cited in
opposition:

The word mark ‘FLEXI AIR’ for
certain goods in class 3 (Sham-
poos; gels, mousses and balms;
essential oils;
(Application
...)
No 1011576)

Revlon (Suisse) S.A.

Several national word marks
‘FLEX’ for certain goods in class 3
and 34 (soaps, essential oils,
Shampoo, ...)

Decision of the Oppo-
sition Division:

Rejection of the community trade
mark application.

Decision of the Board of
Appeal:

Dismissal of the appeal brought
by L’Oréal S.A.

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: English)

Pleas in law:

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

— Breach of article 43(2) of
Council regulation No 40/
94 (1) and rule 22(1) Com-
mission
Regulation
No 2868/95 (2) in that there
is, according to the appli-
cant, no time limit for the
applicant to request evidence
of use.