Case T-391/03: Action brought on 27 November 2003 by Yves Franchet and Daniel Byk against the Commission of the European Communities
Date: 2004-01-24
Institutions: Court of First Instance
Subjects: EU control, European Commission, Eurostat, access to information, action for annulment (EU), financial control, fraud against the EU

C 21/46

EN

Official Journal of the European Union

24.1.2004

Action brought on 24 November 2003 by CM Capital
Markets Holding, S.A. against the Office for Harmonis-
ation in the Internal Market (Trade Marks and Designs)
(OHIM)

Decision of the Oppo-
sition Division:

(Case T-390/03)

(2004/C 21/91)

(Language of the case: Spanish)

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
24 November 2003 by CM Capital Markets Holding, S.A.,
established in Madrid, represented by Natalia Moya Fernández
of the Madrid Bar.

The applicant claims that the Court should:

— annul the decision of the OHIM (First Board of Appeal)
of 23 September 2003 in Case R-244/2003 and, as a
consequence, uphold in its entirety the opposition
brought in opposition proceedings B348914;

— accept the applicant’s arguments persuading the OHIM
Opposition Division that the sign concerned should not
be registered as a mark;

— order the OHIM to pay the costs and reject the OHIM’s

arguments.

Pleas in law and main arguments

Opposition upheld and appli-
cation for registration refused in
respect of the following services:
business management, business
administration, office functions
(Class 35);
financial
affairs, monetary affairs, banking
real-estate
business,
affairs
(Class 36);
telecommunications
(Class 38); legal services and scien-
tific
research
industrial
and
(Class 42).

insurance,

Decision of the Board of
Appeal:

Appeal brought by the applicant
for the mark upheld.

Pleas in law:

Article 8(1)(b) of Regulation (EC)
No 40/94 incorrectly applied
(likelihood of confusion).

Action brought on 27 November 2003 by Yves Franchet
and Daniel Byk against the Commission of the European
Communities

(Case T-391/03)

(2004/C 21/92)

(Language of the case: French)

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:

Caja de Ahorros de Murcia.

Figurative mark for which colour
is claimed, consisting of the depic-
tion of a red square containing
the letters ‘CM’ — Application
No 1.413.061 for goods and ser-
vices in Classes 1 to 42.

The applicant.

Spanish figurative mark ‘CAPITAL
MARKETS CM’, registered under
numbers 2.000.040, 2.000.041,
2.000.042 and 2.000.043 for ser-
vices in Classes 35, 36, 38 and
42.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 November 2003 by Yves
Franchet and Daniel Byk, both residing in Luxembourg,
represented by Georges Vandersanden and Laure Levi, lawyers.

The applicants claim that the Court should:

— annul the European Commission’s decision of 18 August
2003, notified on 21 August 2003, refusing the appli-
cants request for access to certain documents held by that
institution, and the Commission’s decision of 1 October
2003, refusing the confirmatory application lodged by
the applicants on 8 September 2003;

— order the defendant to pay all of the costs.

24.1.2004

EN

Official Journal of the European Union

C 21/47

Pleas in law and main arguments

The applicants in this case had submitted a request to the
appointing authority for access to various documents held by
the Commission regarding investigations carried out as a
consequence of certain irregularities which had been found to
exist in relation to Eurostat. The rejection of this application
forms the basis of this case.

The defendant relies on two exceptions in Article 4 of
Regulation (EC) No 1049/2001 of the European Parliament
and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents,
and on the protection of court proceedings and of the purpose
of inspections, investigations and audits.

In support of their position, the applicants claim that there has
been a breach of Regulation No 1049/2001, in particular of

Articles 2 and 4, a breach of the fundamental right of access
to documents, a manifest error of assessment, erroneous and
contradictory reasoning, and a breach of the principle of
proportionality.

They consider in that regard that the defendant has wrongly
given a wide scope to the exceptions it relies on, which is
contrary to case-law. The case in fact involves no current
court proceedings within the meaning of that case-law and,
moreover, the European Anti-Fraud Office is an administrative
service, which compiles administrative files and reports.

Lastly, they claim that the Commission failed to determine the
requests for access in the light of the specific facts and
circumstances of the case by failing to consider the impact that
the contents of the documents might have on the exceptions
relied on, and failed to give proper weight to the interests in
question.