Case T-253/03: Action brought on 4 July 2003 by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd against the Commission of the European Communities
Date: 2003-10-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), document, judicial investigation, offence, professional secret

C 239/20

EN

Official Journal of the European Union

4.10.2003

The applicant claims that the Court should:

— annul the contested Decision requesting the Member
States to suspend marketing authorizations for products
containing benzathine penicillin under the referral pro-
cedure of Article 35 of Directive 2001/82;

— alternatively declare the contested Decision non-existant;

— order the Defendant to bear the costs.

— The procedure provided for in Article 35 of Directive
2001/82 can only affect and have an impact on the
national marketing authorisation directly concerned by
it.

— In the present case there should not be ‘Community

interest’ justifying a referral.

(1) Directive 2001/82/EC of the European Parliament and Council of
6 November 2001, on the Community code relating to veterinary
national products (OJ L 311, of 28 November 2001, p. 1),
which consolidates and replaces Council Directive 81/851/EEC of
28 September 1981 on the approximation of the laws of the
Member States relating to veterinary medicinal products (OJ L 317
of 6 November 1981, p. 1, and the subsequent modifications).

(2) OJ C 109, of 4.5.2002, p. 51.

Pleas in law and main arguments

The applicants in the present case are all companies holding
national marketing authorisations issued by national com-
petent authorities for a veterinary medicinal product contain-
ing the pharmacologically active substance ‘bezathine penicil-
lin’. That substance is a general antibiotic used in veterinary
injectable medicinal products for food producing animals.

The present application has been lodged against the Decision
of the Commission of 22 April 2003, ordering a suspension of
the marketing authorisations of veterinary medicinal products
containing the substance benzathine penicillin on the basis of
Article 35 of Directive 2001/82/EC (1) (former Article 20 of
Directive 81/851) in the framework of a so-called ‘Community
interest referral procedure’ initiated by the Irish authorities.
The applicants in the present case introduced an action
for annulment against the Decision introducing the referral
procedure on 25 January 2002. The application, which is still
pending, was registered under Roll No T-19/02 (2).

In support of their conclusions, the applicants submit that:

— The Commission cannot oblige the Member States to
suspend national marketing authorisations of products
containing benzathine penicillin under the procedure
contained in Article 35 of Directive 2001/82 as this
Article does not provide the Commission with the power
to adopt decisions harmonising national marketing auth-
orisations.

Action brought on 4 July 2003 by Akzo Nobel Chemicals
Ltd and Akcros Chemicals Ltd against the Commission of
the European Communities

(Case T-253/03)

(2003/C 239/39)

(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 4 July 2003 by Akzo Nobel
Chemicals Ltd, Surrey, (United Kingdom), and Akcros Chemi-
cals Ltd, Surrey, (United Kingdom), represented by C. Swaak
and R. Mollica, lawyers.

The applicant claims that the Court should:

— review, under Article 230 EC, the legality of the Rejection

Decision;

— annul, under Article 231 EC, the Rejection Decision;

— order the Commission to pay the applicant’s costs in the

present proceedings.

Pleas in law and main arguments

— Even if one were to accept that the procedure contained
in Article 35 of Directive 2001/82 could lead to a binding
decision of the Commission, such procedure would at
most apply to veterinary medicinal products authorised
under the mutual recognition procedure.

In February 2003, representatives of the Commission perfor-
med an investigation on the basis of Article 14(3) of Regulation
17/62 with regard to the applicants in Eccles, Manchester. In
the course of the investigation, the Commission reviewed,
took copies of and seized several documents (1).

4.10.2003

EN

Official Journal of the European Union

C 239/21

Some of these documents became the object of a disagreement
between the applicants and the Commission. According to the
the seizure and handling of these documents
applicants,
violate the general principle of legal professional privilege as
recognized under European Community Law.

In Commission Decision C(2003)1533 regarding a claim of
legal privilege in the context of an investigation pursuant to
Article 14(3) of Council Regulation No 17 in Case No COMP/
E-1/38.589 the Commission firstly rejected the applicants’
request to return or destroy all copies of the documents in
dispute and secondly,
indicated it will proceed to join all
documents in dispute to the Commission’s file.

With the present application, the applicants seek the review of
the legality and the annulment of this Decision. The applicants
submit that the Commission has committed an infringement
of the Treaty and of general principles of Community law and
has violated Regulation 17/62 as interpreted by the Courts of
Justice of the European Communities.

The applicants contend that the Commission has violated the
legal professional privilege by violating the
principle of
procedures relating to the application of this principle as set
out by case law, by its unjustified denial of legal professional
privilege and by violating the applicants’ fundamental rights
(such as the right to privacy) which form the basis of the
aforementioned principle.

( 1) The applicants have lodged an application for the annulment of
Commission Decision C(2003) 559/4 in as far as it has been
interpreted as legitimating the Commission’s action of seizing,
reviewing and reading of documents allegedly covered by legal
professional privilege (Case T-125/03, OJ [2003] C 146 of
21.6.2003, p. 42).

The applicant claims that the Court should:

— decide that the mark ‘INTERNET PHOTONICS’ is eligible
for registration as a community trade mark since it does
comply with Article 7(1)(b) of Regulation (EC) No 40/
94 (1);

— annul the decision dated the 13th May 2003 by the
Second Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) concern-
ing case Number R 765/2002-2;

— allow the application for the mark to be remitted to the
Examination Division of the Office for further consider-
ation of eligibility for registration under Article 7(1)(c)
of Regulation (EC) No 40/94 (1) having regard to the
distinctive character of the mark as a whole, or alterna-
tively to remit the application for the mark for a decision
by a Board of Appeal of the Office as to whether the
mark is eligible for registration as a community trade
mark under Article 7(1)(c) of Regulation (EC) No 40/
94 (1) on the original appeal from the examiner.

— order the Office for Harmonisation in the Internal Market

to pay the costs.

Pleas in law and main arguments

The trade mark con-
cerned:

The word mark ‘INTERNET PHO-
TONICS’
application
—
No 002275600

Goods or service con-
cerned:

Goods and services in Classes 9,
37, 42 (computer software and
hardware etc.)

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

Action brought on 15 July 2003 by Internet Photonics,
Inc against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Decision of the Board of
Appeal:

Dismissal of the appeal

(Case T-257/03)

(2003/C 239/40)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 15 July 2003 by Internet Photonics,
Inc., New Jersey, USA, represented by M. Chapple, Barrister.

Grounds of claim:

— misapplication

of
Article 7(1)(b) of Regulation
(EC) No 40/94 (1)

— misapplication

of
Article 7(1)(c) of Regulation
(EC) No 40/94 (1)

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

munity trade mark (OJ L 11, p. 1).