Case T-375/03: Action brought on 14 November 2003 by Fachvereinigung Mineralfaserindustrie e. V. Deutsche Gruppe der EURIMA — European Insulation Manufacturers' Association against the Commission of the European Communities
Date: 2004-02-07
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), building insulation, control of State aid, environmental protection

7.2.2004

EN

Official Journal of the European Union

C 35/11

Action brought on 3 November 2003 by the Land
Oberösterreich against the Commission of the European
Communities

(Case T-366/03)

(2004/C 35/17)

(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 3 November 2003 by the Land
Oberösterreich (Province of Upper Austria, Austria), represent-
ed by F. Mittendorfer, lawyer.

The applicant claims that the Court should:

— annul Commission Decision C(2003) 3117 final of
2 September 2003 by which national provisions on
banning GMOs in Upper Austria, notified by Austria in
accordance with Article 95(5) EC, were rejected;

— order the Commission to pay the costs of the case.

Pleas in law and main arguments

The subject matter of the action is the Commission Decision
of 2 September 2003 by which the national provisions
banning the use of genetically modified organisms in Upper
Austria were rejected.

The applicant claims that the Commission by that decision
infringes the right of the Province of Upper Austria to bring
in, following the adoption by the Council or the Commission
of harmonisation measures, national provisions based on new
scientific knowledge for the protection of the environment or
the working environment on grounds of a specific problem
for Austria which arose following the adoption of the harmon-
isation measures.

The applicant submits that the Commission did not enable the
Province of Upper Austria to be informed of the opinion of
the European Food Safety Authority (EFSA) of 4 July 2003, on
which the Commission’s decision was based, and to comment
thereon, during the hearing of the interested parties. The
decision-making process did not comply with constitutional
principles relating to proper procedure and therefore consti-
tuted an infringement of essential procedural requirements.

Furthermore, the applicant submits that the national pro-
visions satisfy the requirements for Article 95(5) EC to apply.
They constitute a measure to protect the conservation of the
natural environment, of which biodiversity in a broad sense

forms a part. Moreover, agriculture in the Province of Upper
Austria is almost exclusively based on small farms, and a
further specific element is the constant increase in the area
under organic farming and in farming businesses operating on
an organic basis. The study carried out by Mr Werner Müller
found that it was impossible for conventional, ecological, non-
genetically modified crop production and natural flora to co-
exist with wide-scale GMO cultivation, a set of circumstances
which the Commission should have taken into account with
regard to the specific structure of the agriculture of the region
of Upper Austria.

Finally, the applicant claims that the provisions notified to the
Commission constitute a precautionary or preventive measure
in terms of Article 174(2) EC, and that because they will be in
force for only three years the functioning of the internal
market is affected — if at all — as little as possible; thus the
national measures may be assumed to be proportionate. The
result is that the conditions laid down in Article 95(5) EC are
fulfilled, and so the Commission should have considered the
national provisions notified to it to be in accordance with
Community law.

Action brought on 14 November 2003 by Fachvereini-
gung Mineralfaserindustrie e. V. Deutsche Gruppe der
EURIMA — European Insulation Manufacturers’ Associ-
ation against the Commission of the European Communi-
ties

(Case T-375/03)

(2004/C 35/18)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First
Instance on
14 November 2003 by Fachvereinigung Mineralfaserindustrie
e. V. Deutsche Gruppe der EURIMA — European Insulation
Manufacturers’ Association, of Frankfurt am Main (Germany),
represented by T. Schmidt-Kötters, lawyer.

The applicant claims that the Court should:

— annul Commission Decision C(2003) 1473 final of 9 July
2003 on State aid No N 694/2002 — Germany, measure
to promote the use of insulating materials produced from
renewable raw materials;

— order the Commission to pay the costs of the case.

C 35/12

EN

Official Journal of the European Union

7.2.2004

Pleas in law and main arguments

The applicant claims that the Court should:

By the contested decision the Commission decided that
Germany’s measure to promote the use of insulating materials
produced from renewable raw materials is to be considered
compatible with the EC Treaty. The Commission reached this
decision on the basis that, although the measure constitutes
aid, it is, under Article 87(3)(c) EC, compatible with the EC
Treaty since the promoted insulating materials produced from
renewable raw materials clearly have advantages for the
environment over ‘traditional’ insulating materials.

The applicant submits that the decision infringes essential
procedural
requirements. The Commission should have
initiated the preliminary examination procedure in accordance
with Article 88(2) EC and Article 4(4) of the regulation on
State aid procedure, since it encountered objectively serious
difficulties in assessing the measure.

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation of 27 August 2003 in Case
R 105/2002-4;

— order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘Cloppenburg’ —
Application No 1920685 in
sought:
respect of Class 35 — retail trade
services.

Decision
before
Appeal:

contested
the Board of

Examiner’s refusal to register.

Furthermore, the decision infringes Article 87 EC. The Com-
mission’s decision that the measure is compatible with the
common market under Article 87(3)(c) EC because of clear
advantages for the environment was based upon insufficient
findings of fact.

Decision of the Board of
Appeal:

Dismissal
appeal.

of

the

applicant’s

Pleas in law:

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

Finally the applicant claims that the decision unjustifiably
disadvantages those insulating materials designated by the
Commission as ‘traditional’, especially mineral-based insulating
materials, but also insulating materials produced from renew-
able raw materials which do not carry the quality mark
‘natureplus’. The decision thus infringes the principles of
proportionality and non-discrimination and therefore infringes
fundamental principles of Community law.

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

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

Action brought on 18 November 2003 by Miles Hand-
elsgesellschaft International mbH against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

Action brought on 17 November 2003 by Peek & Clop-
penburg KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-385/03)

(2004/C 35/20)

(Case T-379/03)

(2004/C 35/19)

(Language of the case: German)

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
17 November 2003 by Peek & Cloppenburg KG, Düsseldorf
(Germany), represented by U. Hildebrandt, lawyer.

(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)

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
18 November 2003 by Miles Handelsgesellschaft International
mbH, Norderstedt (Germany), represented by A. Deutsch,
lawyer. Biker Miles Motorrad Handels- und Vertriebsgesell-
schaft mbH, Berlin, was also a party to the proceedings before
the Board of Appeal.