Case T-258/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: European Commission, Poland, action for annulment (EU), agricultural trade, common organisation of markets, free movement of goods, import tax, sugar, transitional period (EU)

9.10.2004

EN

Official Journal of the European Union

C 251/21

With regard to Article 4(3) of Regulation No 1972/2003 the
applicant argues that the Commission lacked competence and
that there has been a breach of the first paragraph of Article
41 of the abovementioned Act of Accession and infringement
of the principles of proportionality and non-discrimination on
grounds of nationality, in so far as the level of duty laid down
in the contested provision exceeds the differential between the
Community customs rate and the Polish rate as on 30 April
2004.

With regard to the eighth indent of Article 4(5) of Regulation
No 1972/2003 the applicant argues that
the Commission
lacked competence and that there has been a breach of the first
paragraph of Article 41 of the abovementioned Act of Acces-
sion and infringement of the principle of proportionality in so
far as the contested provision covers products for which the
Polish customs rate for imports on 30 April 2004 was greater
than or equal to the Community rate and also products in
respect of which there was, on 1 May 2004, no evidence of
surplus stocks at national level.

With regard to all of the contested provisions of Regulation No
1972/2003, the applicant argues that the Commission abused
its powers by adopting measures the real objective of which
was not
the
Common Agricultural Policy but rather to protect the market
of the Community of 15 States against competition from Polish
agricultural producers.

to facilitate Poland in adopting the rules of

(1) OJ 2003 L 236, p. 33.

Pleas in law and main arguments

With regard to Article 5 of Regulation No 60/2004 the appli-
cant raises the following heads of complaint:

— infringement of

the principle of

the free movement of
goods through the introduction of customs duties in the
amount of a customs rate applicable erga omnes and
exceeding the level of customs rates in force during the
period prior to Poland's accession to the European Union;

— lack of competence on the Commission's part and breach
of Articles 22 and 41, first paragraph, and Part 5 of Annex
IV to the Act concerning the conditions of accession of the
Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania,
the Republic of Hungary,
the
Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the
European Union is founded (1) through the adoption of
measures altering the conditions defined in that Act for the
adoption by the Republic of Poland of the rules governing
the customs union and through the inclusion by the
contested provision of products that are not covered by the
Common Agricultural Policy;

the Republic of Malta,

— infringement of

the principle of non-discrimination on
grounds of nationality by reason of
the adoption of
measures providing for treatment of persons from Poland
that differs from that of persons from the Community of
15 States who are in a comparable position;

Action brought on 28 June 2004 by the Republic of
Poland against the Commission of the European Commu-
nities

— breach of a fundamental procedural requirement by virtue

of the inadequate reasoning of the measures adopted;

(Case T-258/04)

(2004/C 251/39)

(Language of the case: Polish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 June 2004 by the Republic of
Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

— declare invalid Articles 5, 6(1), (2) and (3), 7(1) and 8(2)(a)
of Commission Regulation (EC) No 60/2004 of 14 January
2004 laying down transitional measures in the sugar sector
by reason of the accession of the Czech Republic, Estonia,
Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia
and Slovakia (OJ 2004 L 9, p. 8);

— order the Commission of the European Communities to

pay the costs of the proceedings.

— infringement of the principle of the protection of legitimate
expectations by reason of the introduction of a method, at
variance with the conditions laid down in the abovemen-
tioned Act of Accession, of dealing with products which
were in temporary storage on 1 May 2004, were covered
by customs procedures or were in transit within the
enlarged Community, and in particular by reason of the
introduction of customs duties exceeding the level of
customs rates in force during the period prior to Poland's
accession to the European Union.

With regard to Article 6(1) and (2) of Regulation No 60/2004,
the applicant argues that the Commission lacked competence
and that there has been a breach of Article 22, the first para-
graph of Article 41 and Part 4 of Annex IV to the abovemen-
tioned Act of Accession,
in conjunction with Council Regu-
lation (EC) No 1260/2001 of 19 June 2001 on the common
organisation of the markets in the sugar sector (2) — to the
extent to which the contested provisions provide for account
to be taken by the Commission of processed products
containing sugar (sugar equivalent) when determining the exis-
tence of surplus quantities of sugar and isoglucose and impose
a prohibition on the elimination of surplus quantities of sugar
and isoglucose by way of exportation of processed products
containing sugar (sugar equivalent).

C 251/22

EN

Official Journal of the European Union

9.10.2004

With regard to Articles 6(3), 7(1) and 8(2)(a) of Regulation
No 60/2004, the applicant alleges infringement of the princi-
ples of solidarity and good faith in relations between the
Member States and the Community institutions (Article 10 EC)
by reason of the imposition on Poland, through the contested
measures, of obligations with which it
is in practice not
possible to comply, and by reason of the refusal to cooperate
with a view to overcoming difficulties which have arisen.

With regard to all of the contested provisions of Regulation
No 60/2004, the applicant argues that the Commission abused
its powers by adopting measures the real objective of which is
not to facilitate Poland in adopting the rules of the Common
Agricultural Policy but rather to protect the market of the
Community of 15 States against competition from Polish agri-
cultural producers.

(1) OJ 2003 L 236, p. 33.
(2) OJ 2001 L 178, p. 1, as subsequently amended.

Action brought on 25 June 2004 by BIC S.A. against the
Office for Harmonisation in the Internal Market

(Case T-262/04)

(2004/C 251/40)

(Language of the case: French)

Pleas in law:

The applicant has shown that the
shape of the lighter in respect of
which the application for registra-
tion as a Community trade mark
was made is widely recognised by
consumers as belonging to it.

The applicant has established that
the shape of the BIC lighter had
acquired a distinctive
character
within the meaning of Article 7 of
Regulation (EC) No 40/94.

Action brought on 25 June 2004 by BIC S.A. against the
Office for Harmonisation in the Internal Market

(Case T-263/04)

(2004/C 251/41)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 25 June 2004 by BIC S.A., estab-
lished in Clichy (France), represented by Michel-Paul Escande,
lawyer.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 25 June 2004 by BIC S.A., estab-
lished in Clichy (France), represented by Michel-Paul Escande,
lawyer.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 6 April 2004 (Case R 468/2003-4),
in so far as it decided that Community trade mark applica-
tion No 1 738 392 should be refused on the grounds laid
down in Article 7 of Regulation No 40/94, since BIC has
shown that the conditions for the application of that article
were not satisfied in the present case;

— order the defendant to pay the costs.

Pleas in law and main arguments:

— annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 6 April 2004 (Case R 468/2003-
4), (1) in so far as it decided that Community trade mark
application No 1 738 566 should be refused on the
grounds laid down in Article 7 of Regulation No 40/94,
since BIC has shown that the conditions for the application
of that article were not satisfied in the present case;

— order the defendant to pay the costs.

Community trade mark
applied for:

Three-dimensional
the shape of a lighter.

trade mark in

Pleas in law and main arguments:

Goods or services:

Goods
articles,
No 1 738 392.

in Class 34 (smoker's
lighters) — application

Decision
before
Appeal:

contested
the Board of

Refusal to register by the exam-
iner.

Decision of
of Appeal:

the Board

Appeal dismissed.

Community trade mark
applied for:

Three-dimensional trade mark in
the shape of a lighter.

Goods or services:

Goods
articles,
No 1 738 566.

in Class 34 (smoker's
lighters) — application