Case T-208/04: Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities
Date: 2004-09-25
Institutions: Court of First Instance
Subjects: Council of the European Union, EC action to establish liability, European Commission, broker, customs regulations, customs territory (EU), maritime transport

25.9.2004

EN

Official Journal of the European Union

C 239/25

Action brought on 23 April 2004 by Mühlens GmbH &
the Office for Harmonisation in the
Co. KG against

Internal Market (Trade Marks and Designs)

Decision of the Board
of Appeal:

Applicant's appeal dismissed

(Case T-150/04)

(2004/C 239/55)

Pleas in law:

— The opposition based on the well-
known mark ‘TOSCA’
is well
founded under Article 8(1)(b) of
Regulation No 40/94.

— There is a likelihood of confusion
between the opposing names.

— The opposing goods are similar.

— There is a likelihood of confusion
within the meaning of Article
8(1)(b) of Regulation (EC) No
40/94.

— The opposition is entitled to

(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 23
April 2004 by Mühlens GmbH & Co. KG, Cologne (Germany)
represented by T. Schulte-Beckhausen, lawyer.

Minoronzoni S.r.l., Ponte San Pietro (Bergamo), (Italy), was also
a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the

defendant of 18 February 2004 (Case R 949/2001-1);

— order the defendant to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for Com-

Minoronzoni S.r.l.

Community
mark sought:

trade

Proprietor of mark or
the
cited
sign
in
opposition
proceed-
ings:

Mark or sign cited in
opposition.

Figurative mark ‘TOSCA BLU’
for
goods in Classes 18 and 25 (including
bags;
bags;
clothing for men, women and children
in general) – Application No 1 008
291

handbags;

travelling

The applicant

German word mark ‘TOSCA’
perfumery
‘Parfum’,
Parfum pour femmes’)

for
(including
‘Eau de Toilette’ and ‘Eau de

products

Action brought on 7 June 2004 by Dominique Hardy
the European Union and the
against

the Council of
Commission of the European Communities

(Case T-208/04)

(2004/C 239/56)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 7
June 2004 by Dominique Hardy, whose place of business is in
Coudeville-plage (France), represented by Jean-François Péri-
caud, lawyer.

The applicant claims that the Court should:

Decision of the Oppo-
sition Division:

Opposition rejected

hold that the European Community has become liable to her
by the adoption, and then application, to the detriment of
ship's agents (agents maritimes), of Article 5 of the Community
Customs Code in an unlawful manner;

C 239/26

EN

Official Journal of the European Union

25.9.2004

alternatively, hold that the European Community has become
liable to her by the adoption, even if lawful, and then applica-
tion of Article 5 of the Community Customs Code, having
caused her to suffer an abnormal and special loss;

and proportionality. Finally, the applicant alleges a breach of
the right to respect of property in that the abolition of the
monopoly renders the office of ship's agent non-transferable
and entirely worthless.

order the Council and the Commission jointly and severally to
pay to her damages of EUR 60 510 or, alternatively, of
EUR 47 829 together with interest in both cases at the legal
rate from the date on which the present action was brought;

order the Council and the Commission jointly and severally to
pay the costs.

The applicant claims, in the alternative, that the Community is
liable on a no-fault basis given the abnormal and special nature
of the loss suffered. According to the applicant, the harm is
abnormal in that the loss of the economic value of the office
and of the profit margin exceeds normal economic risks and is
special in that ship's agents constitute a clearly distinct category
of traders.

Pleas in law and main arguments

The applicant states that, following the commencement by the
Commission of a Treaty infringement procedure against the
French State, France has, in order to bring French law into line
with Article 5 of Regulation No 2913/92 (1), repealed the
monopoly held by ship's agents, of whom the applicant is one,
to deal with the customs authorities. According to the appli-
cant, the withdrawal of that monopoly follows directly from
the application of Article 5 of Regulation No 2913/92 and is
therefore directly attributable to the European Community.

The applicant's main submission is that the adoption of Article
5 of Regulation No 2913/92 constitutes an unlawful act for
which the Community is liable.

Firstly, the applicant claims that that article fails to have regard
to the derogatory provisions of Article 45 of the EC Treaty to
the extent that the profession of ship's agent, by application of
customs legislation,
is involved in the exercise of public
authority.

The applicant then alleges a breach of the principles of legal
certainty and the protection of legitimate expectations. The
applicant claims, on one hand, that Article 5 of Regulation No
2913/92 refers to the concept of ‘representation at customs’
which is different from that of ‘dealing with the customs autho-
rities’, the latter being essentially carried out by ship's agents.
An interpretation by analogy of that article would, according to
the applicant, be contrary to the principle of legal certainty. On
the other hand, the applicant alleges a violation of her legiti-
mate expectations, arising from the absence of any transitional
measure and from the fact that French ship's agents were the
only ones in the Community to be constantly excluded from
the earlier liberalisation measures.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).

Action brought on 24 June 2004 by Adriatica di Naviga-
zione S.p.A. against the Commission of the European
Communities

(Case T-265/04)

(2004/C 239/57)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance on 24
June 2004 by Adriatica di Navigazione S.p.A., represented by
Gian Michele Roberti, Alessandra Franchi and Guido Bellitti.

The applicant claims that the Court of First Instance should:

annul the contested decision in so far as it considers the subsi-
dies in respect of public-service obligations made to Adriatica
to be aid for the purposes of Article 87 of the Treaty and classi-
fies those measures as new aid;

or annul Article 1(2) of the contested decision;

Furthermore, the applicant alleges a breach, constituted by the
absence of transitional measures, of the principles of equality

or, as a subsidiary claim, annul Article 1(3) of the contested
decision in so far as it requires Italy to recover the aid together
with interest;