Case T-170/03: Action brought on 14 May 2003 by British American Tobacco (Investments) Limited against the Commission of the European Communities
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: European Commission, European Parliament, access to information, action for annulment (EU), customs duties, tariff nomenclature, tax on consumption, tobacco

19.7.2003

EN

Official Journal of the European Union

C 171/39

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant
munity trade mark:

for

Com-

Sissi Rossi S.r.l.

— annul the refusal of the Defendant comprising the failure
to give access to certain documentation requested in the
Applicant’s confirmatory application of 17 January 2003.

Community trade mark
sought:

The trade mark ‘SISSI ROSSI’ -
Application No 837.906 for
goods in Classes 14, 18, 25 and
26

— order the Defendant to pay all the Applicant’s costs
pursuant to Article 87 of the Rules of Procedure of the
Court of First Instance.

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

Mark or sign cited in
opposition:

The applicant

Italian trade mark No 553.016
and international
trade mark
No 577.643 ‘MISS ROSSI’, for
goods in Class 25 (ladies’ shoes)

Pleas in law and main arguments

Decision of the Oppo-
sition Division:

Opposition upheld and appli-
cation for registration refused

Decision of the Board of
Appeal:

Appeal upheld and opposition
decision dismissed

Pleas in law:

Likelihood of confusion by associ-
ation and similarity between the
trade mark applied for and the
trade mark cited in opposition
(Article 8(1)(b) of Regulation
No 40/94)

Action brought on 14 May 2003 by British American
Tobacco (Investments) Limited against the Commission
of the European Communities

(Case T-170/03)

(2003/C 171/66)

(Language of the case: English)

The applicant in the present case challenges the refusal of the
defendant to grant it access to certain documents relating to
the classification of expanded tobacco for Customs and Excise
duty purposes. Regarding this topic, it points out that it has a
vital interest in knowing why a given product — expanded
tobacco — is treated as smoking tobacco within the meaning
of Article 5(1) of Directive 95/59/EC of 27 November
1995, on taxes other than turnover taxes which affect the
consumption of manufactured tobacco (1), and thus as an
excisable product. The applicant considers the product an
intermediary product, unsmokable without further processing,
and therefore not excisable. It is stressed that there has been
no published decision determining the issue and giving the
reasons for the classification chosen.

As regards two of the sets of requested documents (a complete
set of documents of the Customs Cooperation Council on the
Classification of expanded tobacco for customs classification
purposes and all the attendance lists of all meetings of the
Committee on Excise Duties, or any other relevant Committee,
at which the definition of ‘smoking tobacco’ was debated), the
applicant submits that the Commission infringed Article 8(1)
and (2) of Regulation(EC) 1049/2001 (2), by not responding
within the regulatory time-limits thereof.

In relation to the full minutes of all meetings of Excise duties,
or any other relevant committee, at which the definition of
‘smoking tobacco’ was debated, including the full minutes of
discussions on other agenda points, the applicant claims that
the contested refusal:

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 May 2003 by British American
Tobacco (Investments) Limited, London, United Kingdom,
represented by Mr S. Crosby, lawyer.

— Misapplied the principle of proportionality. In particular,
the Commission made no attemp to confer informally
with the applicant with a view to finding a fair solution,
pursuant to Article 6 of Regulation (EC) 1049/2001

C 171/40

EN

Official Journal of the European Union

19.7.2003

— Has not given due weight to the applicant’s interest in

Pleas in law and main arguments

receiving the requested documentation

Applicant
munity trade mark:

for

Com-

The applicant.

Community trade mark
sought:

Figurative mark NLCollection —
Application No 1082809 for
goods in Class 25 (articles of
clothing, footwear and headgear).

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

NAULOVER SA

Mark or sign cited in
opposition:

Figurative mark NL (Community
trade mark No 13417 and Span-
ish trade mark No 1329084).

Decision of the Oppo-
sition Division:

Rejection of the opposition.

Decision of the Board of
Appeal:

Pleas in law:

Annulment of the decision of the
Opposition Division and accept-
ance of
the opposition with
respect to Community trade mark
No 13417.

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

the applicant doesn’t accept

Moreover,
the Commission’s
contention that the Member States would have to be consulted
in relation to the submissions made by them in the minutes. It
is the applicant’s position that, in accordance with Article 4(4)
of Regulation (EC) 1049/2001, a consultation with a Member
State shall take place only when it is not clear whether a
document shall or shall not be disclosed. Furthermore, the
final decision as to whether or not a document shall be released
remains with the Commission, and this must be reasoned and
clearly justified as falling within one of
the exemptions
provided for in the access regulation.

( 1) OJ L 291 of 6.12.1995, p. 40.
( 2) Regulation (EC) No 1049/2001 of the European Parliament and
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145 of
31.5.2001, p. 43).

Action brought on 19 May 2003 by New Look Limited
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-171/03)

(2003/C 171/67)

(Language of the case: Spanish)

Action brought on 19 May 2003 by Anne Geddes against
the Office for Harmonisation in the Internal Market

An action against the 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
19 May 2003 by New Look Limited, established in Weymouth,
Dorset (United Kingdom), represented by R. Ballester and
G. Marín, lawyers.

The applicant claims that the Court should:

(Case T-173/03)

(2003/C 171/68)

(Language of the case: English)

— annul the decision of OHIM (First Board of Appeal) of

15 April 2003 in Case No R 019/2003-1;

— order OHIM and any intervener to pay the costs.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 19 May 2003 by Anne Geddes,
Auckland, New Zealand, represented by Mr G. Farrington,
Solicitor.