Action brought on 30 January 2004 by Athinaiki Oikogeniaki Artopoiia A.V.E.E. (S.A.) against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-04-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), confectionery product, crop production, trade-mark law

C 94/46

EN

Official Journal of the European Union

17.4.2004

Pleas in law and main arguments

The applicant contests the European Air Safety Agency's
(EASA) decision to reject his candidature for the post of Execu-
tive Director and to appoint another person to that post.

He points out the fact that the information which he and his
lawyers have obtained following their request is fragmentary
and has not allowed the applicant a clear and transparent view
of the procedure followed.

In support of his claims, he asserts;

— Breach of the duty to state reasons and of the duty to have
regard for the welfare and/or interests of officials and of the
principle of sound administration;

— Lack of information, from which it can be objectively and
legitimately assumed that
impartiality,
objectivity and non-discrimination have not been observed,
and breach of the procedural rules and the vacancy notice;

the principles of

— Disregard of the interests of the service and breach of
Article 12 of
the Conditions of Employment of Other
Servants of the European Communities, in so far as it is
clear from a comparison of
the person
appointed, based on the brief biography transmitted by the
Commission, and of those of the applicant, that the appli-
cant's merits are manifestly superior.

the merits of

For some years, the applicant has received a double child allow-
ance under Article 67(3) of
the Staff Regulations. Since
December 1998, the applicant's severely disabled son has been
receiving monthly disability assistance payments
from a
Luxembourg fund.
the applicant notified these
In 1999,
payments as a precaution. As a result, the amount of the
payments from the fund, which regularly exceeded the double
child allowance, was deducted from these family allowances,
repayment was demanded of past sums paid since the award of
the special assistance by the Luxembourg fund, and family
allowances which would otherwise have been due thereafter
were subsequently not paid.

The applicant claims that the conditions under which a deduc-
tion may be made under Article 67(2) of the Staff Regulations
have not been met. According to the definition in Article
67(3), the double child allowance is to be paid in order to
relieve the financial burden on an official who, because his
child is severely handicapped,
is involved in ‘heavy expendi-
ture’. By contrast, the fund defines payments made by it as
‘special assistance for severely disabled persons’. They are sepa-
rate payments, which are awarded to the handicapped child
itself, rather than to the applicant, even though the money is
paid to the child's legal representative because the person
entitled to it is a minor. The payments are thus neither ‘allow-
ances’, nor are they ‘of like nature’. Their deduction under
Article 67(2) of the Staff Regulations is therefore unlawful.
Furthermore,
from the start, made
contrary to the better legal view.

the deductions were,

Action brought on 2 February 2004 by Roderich Weißen-
fels against European Parliament

(Case T-33/04)

(2004/C 94/129)

(Language of the case: German)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on 2
February 2004 by Roderich Weißenfels, residing in Bereldingen
lawyer, with an
(Luxembourg),
address for service in Luxembourg.

represented by H. Arend,

The applicant claims that the Court should:

— annul the defendant's decision of 26 June 2003 deducting
payments made for the benefit of his son from other
sources from the double child allowance payable to the
applicant under Article 67(3) of
the Staff Regulations,
together with the defendant's decision of 10 November
2003 on the complaint in the same matter;

— order the defendant to pay to the applicant all amounts
improperly withheld from his remuneration together with
interest at the rate prescribed by law;

— order the defendant to pay the costs and all the essential

expenses incurred by the applicant.

Pleas in law and main arguments:

Action brought on 30 January 2004 by Athinaiki Oikogen-
iaki Artopoiia A.V.E.E. (S.A.) against the Office for Harmo-
nisation in the Internal Market (Trade Marks and Designs)
(OHIM)

(Case T-35/04)

(2004/C 94/130)

(Language of the case: to be determined pursuant to article 131(2) of
the Rules of Procedure language in which the case was submitted:
English)

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 30
January 2004 by Athinaiki Oikogeniaki Artopoiia A.V.E.E.
(S.A.), Pikermi, Attica, Greece, represented by Dr C. Chris-
santhis, lawyer.

Ferrero oHG mbH was also a party to the proceedings before
the Board of Appeal.

The applicant claims that the Court should:

— Annul the contested decision and / or alter it accordingly so
that the intervener's opposition be dismissed and the rele-
vant CTM No. 1 010 099 application for registration effec-
tively be accepted,

17.4.2004

EN

Official Journal of the European Union

C 94/47

— Reject definitely and in its entirety the opposition to regis-
tration of the mark applied in respect of all the classes
where it was successful,

— Order the Office and the intervener to pay the costs,
including those incurred in opposition proceedings and
before the Board of Appeal.

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

The Applicant.

Trade mark concerned:

of

Proprietor
the
opposing trade mark or
sign:

Opposing trade mark or
sign:

Decision of the Opposi-
tion Division:

trade mark ‘Ferró’

Figurative
-
Application No 1 1 010 099 for
goods and services in classes 29,
30 and 42.

Ferrero oHG mbH.

trade mark

‘FERRERO’
Word
(German trade mark registration
No 956 671) for goods in classes
5, 29, 30, 32 and 33.

the opposi-
Partial upholding of
tion for the following goods in
class 30: ‘Coffee, tea, sugar, artifi-
cial coffee, flour and preparation
made from cereals, bread, biscuits,
ices,
and confectionery,
pastry
syrup, yeast, baking powder, all
kinds
preparations,
honey, treacle’.

bread

of

the Board

Rejection of the appeal.

Decision of
of Appeal:

Pleas in law:

The applicant claims that the Court should:

— Annul Articles 3 and 11 and the Annex to Council Regu-
lation 1954/2003 in so far as: a) They provide for the
fishing effort under the Regulation to be determined by
reference only to the target species and the ICES/CECAF
area but not also by reference to the type of fishing gear
used, whether fixed or towed; b) They exclude from the
operation of Articles 3 and 11 demersal species covered by
Regulation 2347/2002.

— Annul Article 15 of Council Regulation 1954/2003 in so
far as the repeal of Council Regulations 685/95 and
2027/95: a) Removes the power of the Community to
determine fishing effort by reference not only to target
species and ICES/CECAF area but also by reference to the
type of fishing gear used (Articles 3(1), 6 and Annex 1 of
Regulation 685/95 and Article 2 and Annex of Regulation
2027/95) and removes the determination of same which
had been effected by Regulation 2027/95; b) Removes the
power to determine a maximum annual fishing effort by
area in respect of demersal species covered by Regulation
2347/2002 and removes the determination of same which
had been effected by Regulation 2027/95; c) Removes the
exclusion of access of Spanish vessels to island waters
under the sovereignty or jurisdiction of Portugal in ICES
Area X and CECAF for fishing of tuna or tuna-like species
(Annex III, para. 3 of Regulation 685/95); d) Is capable of
taking effect on 1 August 2004, whether or not a Regu-
lation under Articles 11(2) or (3) of Regulation 1954/2003
has entered into force.

— Annul Article 5(1) of Council Regulation 1954/2003 in so
far as it does not maintain the exclusion of access of
Spanish vessels to island waters under the sovereignty or
jurisdiction of Portugal
in ICES Area X and CECAF for
fishing of tuna or tuna-like species.

Infringement of Article 8(1)(b) of
Council Regulation 44/94.

— Annul Article 13(b) of Council Regulation 1954/2003
insofar as it exempts Articles 19a(3), 19b, 19c, 18d and
19e(3) of Regulation (EEC) No. 2847/93 from application
in the waters under the sovereignty or jurisdiction of
Portugal around the Azores.

— Order the Council to pay the costs incurred by the Appli-

cant in the present proceedings.

Action brought on 2 February 2004 by the Autonomous
Region of the Azores against the Council of the European
Union

Pleas in law and main arguments:

(Case T-37/04)

(2004/C 94/131)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 2 February 2004 by the Autonomous Region
of the Azores, (Portugal), represented by M. Renouf, S. Crosby
and C. Bryant, Solicitors.

the

The Applicant claims the partial annulment of Council Regu-
lation 1954/2003 (1) which replaces
fishing regime
governing the Azorean fisheries. The applicant
invokes a
number of alleged procedural violations in the adoption of the
regulation, which would justify its annulment as requested by
the applicant. These procedural violations comprise failure to
properly consult the European Parliament; failure to take into
account evidence of an economic,
technical, scientific and
environmental nature; and failure to provide an adequate state-
ment of reasons for the act adopted.