Case T-264/03: Action brought on 28 July 2003 by Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. against the Commission of the European Communities
Date: 2003-10-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), technical standard, thermal insulation

C 239/22

EN

Official Journal of the European Union

4.10.2003

Action brought on 18 July 2003 by Celltech R&D Limited
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Action brought on 28 July 2003 by Jürgen Schmoldt,
Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband
der Deutschen Bauindustrie e.V. against the Commission
of the European Communities

(Case T-260/03)

(2003/C 239/41)

(Case T-264/03)

(2003/C 239/42)

(Language of the case: English)

(Language of the case: German)

An action against 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
18 July 2003 by Celltech R&D Limited, Slough,
(United
Kingdom), represented by D. Alexander, QC, and N. Jenkins,
lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 July 2003 by Jürgen Schmoldt,
Dallgow-Döberitz (Germany), Kaefer Isoliertechnik GmbH &
Co. KG, Bremen (Germany), and Hauptverband der Deutschen
by
Bauindustrie
H.-P. Schneider, Hanover.

represented

(Germany),

Berlin

e.V.,

The applicant claims that the Court should:

The applicants claim that the Court should:

— annul the Decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
(‘OHIM’) of 19 May 2003 (Case
Marks and Designs)
R0659/2002-2) in whole or in part;

— order OHIM to pay the costs of this Application.

Pleas in law and main arguments

— annul Article 1 of, and Table 1 of

the Annex to,
Commission Decision 2003/312/EC of 9 April 2003,
published on 8 May 2003 (OJ 2003 L 114, p. 50) and
notified under no C(2003) 1161, on the publication of
the reference of European standards relating to the
thermal insulation products EN 13162:2001 to EN 1
13172:2001, with the result that Commission communi-
cation 2001/C 358/08 of 15 December 2001 (OJ 2001
C 358, p. 9), in so far as it concerns the products EN
13162:2001 to EN 1 13172:2001, and Commission
communication 2001/C 120/06 of 22 May 2003 (OJ
2003 C 120, p. 17) be removed from the Official Journal
of the European Union;

Trade mark concerned:

‘CELLTECH’ — Application
No 1731678.

— order the defendant to pay the costs.

Products or services:

Pharmaceutical, veterinary and
sanitary preparations, compounds
and substances (Class 5), surgical,
medical, dental and veterinary
instruments
and
apparatus
(Class 10), research and develop-
ment, consultancy services, all
relating to the biological, medical
and chemical sciences (Class 41).

Challenged
before
Appeal:

decision
the Board of

Refusal of
examiner.

registration by the

Grounds submitted:

Infringement of Article 7(1)(b) of
the Community Trade Mark Regu-
lation 40/94/EEC.

Pleas in law and main arguments

On 23 May 2001, the European Committee for Standardisation
adopted ten standards for thermal
insulation products, the
references for which were published in the Official Journal of
the European Communities of 15 December 2001 (1). The Federal
Republic of Germany subsequently objected to,
inter alia,
these ten standards for thermal
insulation products under
Article 5(1) of Directive 89/106/EEC (2). The objection was
rejected by the contested decision.

The applicants rely on both formal and substantive grounds.
The applicants take the view that procedural errors were
committed in so far as, contrary to Article 5(1) of Directive
89/106, the Standing Committee on Construction failed to
issue an opinion and in so far as the statement of reasons in

4.10.2003

EN

Official Journal of the European Union

C 239/23

the recitals to the contested decision is inadequate. The
publication of the standards in the Official Journal is likewise
defective as no reference is made to the fact that the standards,
for the most part, and their annexes (with the exception of
Annex ZA) are not binding and that thermal
installation
products only need to comply with Annex ZA in order to bear
the EC mark. As regards the substance, the applicants are of
the opinion that the standards in question are incomplete,
unclear, imprecise and contradictory and that the system of
standards is incoherent. Moreover, the use of the EC mark is
misleading since it does not prove that the product complies
with all European standards but rather only with Annex ZA to
those standards. The contested decision thus fails to meet the
requirements of Directive 89/106,
the principle of pro-
portionality (third paragraph of Article 5 EC) and the require-
ments of consumer protection (Article 95(3) EC).

( 1) OJ C 358 of 15 December 2001, p. 9.
( 2) Council Directive 89/106/EEC of 21 December 1989 on the
approximation of laws, regulations and administrative provisions
of the Member States relating to construction products (OJ L 40
of 11 February 1989, p. 12) as amended by Directive 93/68/EEC
(OJ L 220 of 30 August 1993, p. 1).

Action brought on 23 July 2003 by Helm Düngemittel
GmbH against the Commission of the European Com-
munities

(Case T-265/03)

(2003/C 239/43)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2003 by Helm Düngemittel
GmbH, Hamburg (Germany), represented by Dr W.P. Wasch-
mann, lawyer.

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities of 23 May 2003 concerning retention of a
sum of EUR 346 221,20;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

In the context of an invitation to tender for the supply of
artificial fertiliser to North Korea, the applicant was awarded
the contract by the Commission. Since the artificial fertiliser
supplied by the applicant was late in reaching its destination,
the Commission withheld from the applicant a sum of
EUR 346 221,20 and refused, finally by letter of 23 May 2003,
to pay the sum concerned to the applicant.

force majeure and, consequently,

The applicant submits that the delay in delivering the fertiliser
can be attributed to restrictions on the export of fertiliser from
China, where it intended to procure the fertiliser for export.
As those restrictions were wholly unforeseeable, they may be
regarded as a case of
in
accordance with Article 22(4) of Regulation No 2519/97 (1),
no sum may be retained. The applicant also submits that no
loss was suffered as a result of the late delivery and that
retention of the amount is therefore disproportionate to the
failure to observe the delivery period and is in breach of the
Community-law principle of proportionality. The retention
also infringes provisions of the Belgian Civil Code, since the
Commission did not previously expressly call on the applicant
to fulfil that contractual obligation.

(1) Commission Regulation (EC) No 2519/97 of 16 December 1997
laying down general rules for the mobilisation of products to be
supplied under Council Regulation (EC) No 1292/96 as Com-
munity food aid (OJ L 346 of 17.12.1997, p. 23).

Action brought on 24 July 2003 by Anna Maria Roccato
(Mrs Pinson) against the Commission of the European
Communities

(Case T-267/03)

(2003/C 239/44)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 July 2003 by Anna Maria Roccato,
residing in Brussels, represented by Georges Vandersanden and
Laure Levi, lawyers.