Case T-194/04: Action brought on 27 May 2004 by The Bavarian Lager Company against the Commission of the European Communities
Date: 2004-08-07
Institutions: Court of First Instance
Subjects: European Commission, United Kingdom, access to EU information, action for annulment (EU), beer, provision of documents, quantitative restriction

7.8.2004

EN

Official Journal of the European Union

C 201/21

Mark or sign cited in
opposition:

The national word mark ‘METRO’

European Communities on 27 May 2004 by The Bavarian
Lager Company, Clitheroe, United Kingdom, represented by Mr
J. Pearson and Mr C. Bright Solicitors with an address for
service in Luxembourg.

Decision of the Opposi-
tion Division:

Rejection of the opposition

Decision of
of Appeal:

the Board

Annulment of the decision of the
Opposition Division

The applicant claims that the Court should:

Pleas in law:

that

further

provide

submits

the
The applicant
time an earlier right as basis for an
opposition has to be in force and
to be proved to have this status,
should be the time of the decision
by the Opposition Division, or,
alternatively, when the time-limit
to
evidence
expires. In support of its applica-
tion, the applicant invokes a viola-
tion of
the
proceedings, enshrined in Article
74 of Council Regulation No
40/94 (1) and Rules 16 and 20 of
No
Commission
2868/95 (2). According
to the
applicant, Article 8 (1)
(b) of
Council Regulation 40/94 does
not indicate that the validity of the
earlier mark is only required at the
time of filling an opposition.

the parameters of

Regulation

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

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

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

Action brought on 27 May 2004 by The Bavarian Lager
the European
Company against

the Commission of

Communities

(Case T-194/04)

(2004/C 201/44)

(Language of the case: English)

An action against the Commission of the European commu-
nities was brought before the Court of First Instance of the

— Declare that

the Commission's acceptance of

the UK
Government's amendment to Article 7(2)(a) of the Supply
of Beer (Tied Estate) Order 1989 (S.I. 1989 No 2390) (the
‘guest beer provision’) was in breach of Article 28 (then
Article 30) of the EC Treaty;

— Declare that the Commission should not have accepted the
aforementioned amendment and in doing so, the Commis-
sion is itself was in breach of Article 28 (then Article 30) of
the EC Treaty;

— Annul the Decision of the Commission dated 18 March
2004 to refuse to disclose to the applicant certain docu-
ments;

— Order the Commission to produce the full set of names of
persons attending the meeting held on 11 October 1996 at
which were present officers of the Directorate-General for
the Internal Market, officials of the UK Government Depart-
ment of Trade and Industry and representatives of
the
Conféderation des Brasseurs du Marché Commun; and

— Order the Commission to pay costs

Pleas in law and main arguments:

The applicant company was formed on 28 May 1992 to
import German beer for sale in public houses in the United
Kingdom. In 1993 the applicant complained to the Commis-
sion about an alleged violation of Article 28 EC (then Article
30 of the EC Treaty) in connexion with the ‘guest beer provi-
sion’
in UK legislation. Under this provision breweries are
required to allow public houses bound to them by exclusive
purchasing agreements to offer a ‘guest’ beer from a different
brewery. The guest beer had to be a beer undergoing fermenta-
tion in the cask from which it was sold, a type of beer which is
almost exclusively produced in the United Kingdom. The beer
sold by the applicant as well as most beers produced outside
the United Kingdom could not be covered by this provision
and the applicant considered this a measure of equivalent effect
to a quantitative restriction. In a letter of 21 April 1997 the
Commission informed the applicant that, in view of a proposed
amendment of the guest beer provision, the procedure against
the United Kingdom had been suspended and would be
brought
to a close as soon as the amendment had been
adopted.

C 201/22

EN

Official Journal of the European Union

7.8.2004

On 5 December 2003 the applicant requested the Commission,
on the basis of Regulation 1049/2001 (1), to grant it full access
to the minutes of a meeting on this matter, which took place
on 11 October 1996 between representatives of the Commis-
sion, the United Kingdom government and breweries. In par-
ticular, the applicant asked the Commission to reveal the iden-
tity of certain persons whose names had been blanked out in
the minutes previously disclosed to the applicant. The Commis-
sion rejected the applicant's request and confirmed its refusal in
a letter of the Secretary General to the applicant, dated 18
March 2004. In support of its refusal it invoked the need to
protect personal data of the persons present at the meeting, as
well as a potential risk to the Commission's ability to carry out
investigations in such cases if the identity of persons giving
information to the Commission were to be disclosed.

the Court of First Instance of the European Communities on 27
May 2004 by Madaus Aktiengesellschaft, Köln,
(Germany),
represented by I. Valdelomar Serrano, lawyer.

The Optima Health Limited was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— recognise that the OHIM made a judicial error when issuing

the contested decision;

By its application, the applicant requests first of all a declara-
tion against the Commission's decision to suspend the proce-
dure against the United Kingdom. In this respect, the applicant
invokes a violation of Articles 28 and 12 EC.

— annul the contested decision.

Pleas in law and main arguments:

Concerning the Commission's refusal to grant it access to the
documents requested, the applicant submits that Article 2 of
Regulation 1049/2001 (1) obliges the Commission to make full
disclosure of the persons who attended the meeting in question,
and that none of the exceptions contained in Article 4 apply.
The applicant further contends that the exception in Article 4
paragraph 3 may be disregarded because there is overwhelming
public interest in disclosure.

(1) 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, OJ L 145,
31.5.2001 P. 43 - 48

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

Optima Healthcare Ltd, changed
to The Optimal Health Ltd.

The word mark ‘ECHINAID’
for
goods in class 5 (vitamins, food
supplements, herbal preparations,
medical
pharmaceutical
preparations) (CTM application No
1666239)

and

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Madaus AG

Mark or sign cited in
opposition:

The international trade mark regis-
tration of the word mark ‘ECHI-
NACIN’
in class 5
(chemical pharmaceuticals)

for goods

Action brought on 27 May 2004 by Madaus Aktienge-
sellschaft against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

Decision of the Opposi-
tion Division:

Rejection of the opposition

(Case T-202/04)

(2004/C 201/45)

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

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

Decision of
of Appeal:

the Board

Dismissal of
by Madaus

the appeal brought

Pleas in law:

that

submits

the
The applicant
Board of Appeal erred in applying
the concept of relevant
territory
and relevant public. The applicant
also claims that the prefix Echina
is not descriptive and that there is
a likelihood of confusion between
the marks.