Case T-101/03: Action brought on 14 March 2003 by Suproco N.V. against the Commission of the European Communities
Date: 2003-06-07
Institutions: Court of First Instance
Subjects: Colombia, European Commission, Netherlands Antilles, action for annulment (EU), cane sugar, originating product, sugar

C 135/32

EN

Official Journal of the European Union

7.6.2003

4 February 2003 by Osotspa Co., Ltd., Bangkok, Thailand,
represented by C. Gassauer-Fleissner, lawyer, with an address
for service in Luxembourg. Distribution & Marketing GmbH,
Salzburg, Austria, was also a party to the proceedings before
the Board of Appeal.

Pleas in law:

The applicant claims that a mini-
mal degree of similarity between
the marks is sufficient for a find-
ing that there is a likelihood of
confusion because the goods are
identical

The applicant claims that the Court should:

— vary the contested decision of the Third Board of Appeal
of 27 November 2002 in appeal proceedings No R 296/
2002-3 so as to allow the applicant’s opposition to the
application for registration of the mark ‘Hai’ filed by
Distribution & Marketing GmbH on 10 September 1997
and refuse the application for registration;

— in the alternative, refer the case back to the Office for

Harmonisation in the Internal Market;

— order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Action brought on 14 March 2003 by Suproco N.V.
against the Commission of the European Communities

(Case T-101/03)

(2003/C 135/53)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 March 2003 by Suproco
N.V., having its registered office in Curação, represented by
M.M. Slotboom and N.J. Helder.

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

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

Mark or sign cited in
opposition:

Distribution & Marketing GmbH

The applicant claims that the Court should:

— declare its action to be admissible;

The word mark ‘Hai’ for goods
and services in Classes 5, 32, 33,
35 and 42 (inter alia, vitamin
preparations,
juices,
alcoholic beverages, catering for
guests) (application No 628172)

fruit

The applicant, Osotspa Co., Ltd.

— annul the European Commission decision of 10 January
2003 addressed to the Member States and refusing to
grant a derogation from Council Decision 2001/822/EC
in regard to the rules of origin for sugar from the
Netherlands Antilles;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The Community figurative mark
No 168427 and the national figu-
rative mark ‘Shark’ for goods in
Class 32 (non-alcoholic drinks,
syrups and other preparations for
making beverages)

The applicant is a sugar-processing undertaking established in
the Netherlands Antilles. It imported, inter alia, sugar from a
cane-sugar supplier in Columbia. It processed this sugar into
brown granulated sugar and sugar lumps and re-exported it to
the EC pursuant to Article 3 of Annex II and Appendix 2 to
Annex II to Decision 91/482/EEC (1). On the basis of those
rules the applicant’s products were treated as being products
of OCT origin.

Decision of the Oppo-
sition Division:

Rejection of the applicant’s oppo-
sition

Decision of the Board of
Appeal:

Dismissal of the appeal

Similar rules have also been adopted in Article 4 of Annex III
and Appendix 2 (2)
to Decision 2001/822
(the OCT Decision) (3), which replaces Decision 91/482/EEC.
Article 5(1)(g) of Annex III to the present OCT Decision,

to Annex III

7.6.2003

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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 %;