Case T-277/03: Action brought on 23 July 2003 by Dionisia Elefteriadi against the Commission of the European Communities
Date: 2003-11-01
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), interest, pay, servant (EU)

C 264/30

EN

Official Journal of the European Union

1.11.2003

Action brought on 4 August 2003 by Focus Magazin
Verlag GmbH against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Mark or sign cited in
opposition:

The German mark
‘FOCUS’
(No 395 46 204) in respect of
goods and services in Classes 9,
16, 35, 36, 37, 38, 41 and 42

(Case T-274/03)

(2003/C 264/52)

Decision of the Oppo-
sition Division:

Rejection of the opposition

Decision of the Board of
Appeal:

Dismissal of the applicant’s appeal

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

Pleas in law:

— Submission in the oppo-
of
the

sition
adequate evidence of
applicant’s earlier right;

proceedings

— Infringement of

the appli-

cant’s right to a hearing;

— Infringement of

the appli-

cant’s right of due process;

— Infringement of Article 42 of
Regulation (EC) No 40/94 (1)
and Rule 20(3) of Regulation
(EC) No 2868/95 (2).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ 1995 L 303, p. 1).

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
4 August 2003 by Focus Magazin Verlag GmbH, Munich
(Germany), represented by U. Gürtler, lawyer. France Telecom
S.A., Paris, was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

— annul Decision No 1956/2001 of the Opposition Div-
ision of the defendant of 2 August 2001 in opposition
proceedings B 260576;

— annul the decision of the Fourth Board of Appeal of the
defendant of 30 April 2003 in appeal proceedings R 849/
2001-4;

— instruct the defendant to make a determination on the
merits in opposition proceedings B 260576,
taking
account of the legal view of the matter formed by the
adjudicating court;

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

Action brought on 23 July 2003 by Dionisia Elefteriadi
against the Commission of the European Communities

Pleas in law and main arguments

Applicant
munity trade mark:

for Com-

France Telecom S.A.

Community trade mark Word mark ‘Focus One’ in respect
of goods and services in Classes 9,
sought:
35, 38 and 42 — application
No 984 484

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

The applicant

(Case T-277/03)

(2003/C 264/53)

(Language of the case: Greek)

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 Dionisia Elefteria-
di, residing in Athens, represented by Timotheos Sigalas.

1.11.2003

EN

Official Journal of the European Union

C 264/31

The applicant claims that the Court should:

Action brought on 8 August 2003 by Van Mannekus &
Co. B.V. against the Council of the European Union

— Annul or vary Commission Decision E(2003)738 Final
of 25 March 2003 concerning recovery of amounts
unduly paid to Dionisia Vlakhaki, formerly an auxiliary
agent, so as to remove from it Article 1(b) thereof and
not to require her to pay to the defendant any of the
amounts mentioned therein in addition to the principal
sum claimed by the defendant and, specifically, not to
require payment of interest on late payment together
with additional amounts calculated up to 23 July 2003
in the amount of two thousand eight hundred and forty-
seven euros and 32 cents (EUR 2 847,32) which is broken
down in accordance with Article 1 of the contested
decision into one thousand three hundred and forty-four
cents (EUR 1 344,04) for the period until 10 April 2001,
one thousand and twenty-three euros and eighty-eight
cents (EUR 1 023,88) for the period from 11 April 2001
until 31 December 2002 and four hundred and seventy-
nine euros and 40 cents (EUR 479,40) for the period
from 1 January 2003 to 23 July 2003 (204 days at
EUR 2,35 per day = EUR 479,40).

— In the alternative, annul or vary contested Decision

E(2003)738 Final of 25 March 2003.

(Case T-278/03)

(2003/C 264/54)

(Language of the case: German)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
Schiedam (Netherlands), represented by H. Bleier, lawyer.

The applicant claims that the Court should:

— annul Council Regulation (EC) No 985/2003 of 5 June
2003 amending the antidumping duty measures imposed
by Council Regulation (EC) No 1334/1999 on imports of
magnesium oxide originating in the People’s Republic of
China (1);

— order the Council of the European Union to pay all the

costs.

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

Pleas in law and main arguments

Pleas in law and main arguments

By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in
respect of amounts unduly paid to her after the expiry of her
contract with the Commission, together with interest in respect
of late payment. The action is directed against the part of the
contested decision concerning payment of interest in respect
of late payment. The applicant maintains that she was wrongly
required to pay interest since her inability to repay the principal
sum due is attributable to her severe financial problems and
her family’s health problems which constitute grounds of force
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot
be required to pay interest in respect of the period up to
10 April 2001 because the Commission had tacitly waived its
claim to interest in respect of that period.

By the contested regulation the Council altered the nature of
the antidumping duties on imports of magnesium oxide
originating in the People’s Republic of China on the basis of a
partial interim review. The applicant participated in the review
procedure which preceded the contested regulation as an
importer. It claims that the regulation infringes substantive
Community law in that Council Regulation (EC) No 384/96 (2)
was misapplied to a significant degree.

The applicant argues that it was a misuse of discretion to
initiate a partial interim review ex officio at all. The grounds
set out in the Commission’s notice do not in any event justify
a review. The Commission claimed that the fact that there was
no differentiation between sales made to related parties and
sales made to unrelated parties and between direct and indirect
sales could ‘lead to difficulties in applying the legal provisions’.
That is not true however. There could be no more difficulty in
applying the legal provision.

Further the statement of reasons given in the contested
regulation is different from that which had been set out in the
notice relating to the initiation of the partial interim review.
That means that there was either a lack of formal reasons or a
lack of sufficient grounds for altering the type of duty
substantively. It was a misuse of discretion to differentiate in
the contested regulation between trade with related parties and
trade with unrelated parties and between direct and indirect
sales in the Community.