Case C-49/05 P: Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities
Date: 2005-04-02
Institutions: Court of Justice
Subjects: Friuli-Venezia Giulia, General Court (EU), action for annulment (EU), control of State aid, environmental protection, infringement of EU law, iron and steel industry, regional aid

C 82/16

EN

Official Journal of the European Union

2.4.2005

1. Does the use of a trade mark registered also for ‘toys’ consti-
tute use as a trade mark for the purposes of Article 5(1)(a)
of the Trade Mark Directive if the manufacturer of a toy
model car copies a real car in a reduced scale, including the
trade mark of the proprietor of the trade mark as applied to
the real car, and markets it?

2. If the answer to Question in 1 is in the affirmative: is the
type of use of the trade mark described in Question 1 an
indication of the kind or quality of the model car within the
meaning of Article 6(1)(а) of the Trade Mark Directive?

3. If the answer to Question 2 is in the affirmative:

In cases of this type what are the decisive criteria to be
applied in assessing whether the trade mark corresponds to
honest practices in industrial or commercial matters?

4. Is this in particular the case if the manufacturer of the
model car applies to the packaging, and to an accessory
required in order to use the model, a mark recognisable to
the trade as its own trade mark together with its company
name and the address of its seat?

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of the

European Communities in Case T-276/01;

— annul, through a declaration of inapplicability under Article
241 EC of point 82 of the ‘Community guidelines on State
aid for environmental protection’ of 2001, Commission
Decision 2001/829/EC, ECSC of 28 March 2001 (1),
in
which the aid of the autonomous Region of Friuli-Venezia
Giulia in favour of Ferriere Nord SpA for environmental
investment in a new production plant for electrowelded
wire mesh was considered incompatible with the common
market;

— order, pursuant to Article 235 and the second paragraph of
Article 288 EC, the Commission of the European Commu-
nities to pay compensation for harm suffered by Ferriere
Nord SpA owing to the unlawfulness of the abovemen-
tioned decision and the delay with which the aid unlawfully
denied will actually be granted to Ferriere Nord SpA,
together with interest and an amount to take account of
monetary revaluation;

(1) OJ 1989 L 40, p. 1.

— order the Commission to pay the applicant's costs and legal

fees, both at first instance and in these proceedings.

Pleas in law and main arguments:

Appeal brought on 7 February 2005 (fax 2 February 2005)
by Ferriere Nord SpA against the judgment delivered on
18 November 2004 by the Court of First Instance (Fourth
Chamber, Extended Composition)
in Case T-176/01
between Ferriere Nord SpA, supported by the Italian
Republic, and the Commission of the European Commu-
nities

The applicant claims that the Court of First Instance erred in:

— its description of the legal basis of the notification of the
contested aid and therefore did not consider that the initia-
tion of the formal examination procedure of 3 June 1999
was unlawful;

(Case C-49/05 P)

(2005/C 82/34)

(Language of the case: Italian)

An appeal against the judgment of the Court of First Instance
of
the European Communities (Fourth Chamber, Extended
Composition) of 18 November 2004 in Case T-176/01
between Ferriere Nord, supported by the Italian Republic, and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on 7
February 2005 by Ferriere Nord SpA, represented by W. Viscar-
dini and G. Donà, avvocati.

— considering that the procedural time limits for opening and
examination procedure had been

formal

closing the
observed;

— finding that there had been no infringement of the rights of
the ‘parties concerned’, even though those parties had not
been able to submit observations in the light of the 2001
guidelines on State aid for environmental protection (which
had come into force in the meantime and on which the
Commission based its final measure in the formal examina-
tion procedure), while all the preparatory enquiries had
been conducted on the basis of the ‘Community guidelines
on State aid for environmental protection’ (2) of 1994;

— finding that the Commission had not infringed the legiti-
mate procedural expectations of Ferriere Nord, even though
it had based its decision on certain documents which were
not submitted by Ferriere Nord only because they had
never been requested by the Commission itself;

2.4.2005

EN

Official Journal of the European Union

C 82/17

— holding that the aid granted to Ferriere Nord did not consti-
tute a measure implementing a system already approved in
1992;

3 – order Cantina sociale di Dolianova and the other appli-
cants at first instance to pay the costs at first instance and
on appeal.

— interpreting point 82 of the 2001 guidelines cited above so
as to give them unlawful retroactive application, instead of
treating that point as void ab initio;

Pleas in law and main arguments

— finding that the investment for which Ferriere Nord was

granted aid had no environmental purpose;

— failing to apply the burden of proof which requires that the
Commission, not the undertaking,
isolate from the total
cost of the investment the cost corresponding to environ-
mental protection.

(1) OJ L 310 of 28.11.2001, p. 22.
(2) OJ C 72 of 10.03.1994, p. 3.

Appeal brought on 9 February 2005 (fax of 7 February
2005) by the Commission of the European Communities
for the partial annulment of the judgment delivered on 23
November 2004 by the Second Chamber of the Court of
First Instance of the European Communities in Case T-
166/98 between Cantina sociale di Dolianova and Others
and the Commission of the European Communities

(Case C-51/05 P)

(2005/C 82/35)

(Language of the case: Italian)

The Commission confines the present appeal to paragraphs
129 to 150 of the judgment of the Court of First Instance
concerning the determination of the starting date of the five-
year limitation period prescribed by Article 46 of the Statute of
the Court of Justice. In the Commission's view, the assessment
reached on the matter in the contested judgment – which
found that time started to run for the purposes of that limita-
tion period when the applicants realised that they would not
receive payment of Community aid on the basis of the security
lodged at the time by the DAI in favour of AIMA – is the result
of a clear error of law.

In determining the starting date of the limitation period of the
action brought by the applicant cooperatives, the Court of First
Instance failed wholly to take account of the fact that, from
1983, Regulation (EEC) No 2499/82 (1) had objectively caused
damage to those cooperatives, concentrating instead on the
latter's perception of that damage. The Court found that it did
not suffice that the applicants knew that they had suffered
damage as a result of
the application of Regulation No
2499/82;
it also found to be necessary a wholly subjective
element, namely the applicants' awareness that they could not
obtain a remedy without bringing an action for damages
against the Commission.

Such a finding is contrary to settled Community case-law and
to the principle of legal certainty.

(1) OJ 1982 L 267 of 16.09.1982, p. 16 (no longer in force).

An appeal against the judgment delivered on 23 November
2004 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-166/98 between Cantina
sociale di Dolianova and Others and the Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 9 February 2005 by the
Commission of the European Communities represented by C.
Cattabriga and L. Visaggio, acting as Agents.

The appellant claims that the Court should:

1 – annul the judgment of the Court of First Instance of the
European Communities in Case T-166/98 Cantina sociale di
Dolianova and Others v Commission of the European Commu-
nities in so far as it accedes to the claim for damages
against the Commission and, conseqeuently

2 – deliver final

judgment in the matter by dismissing that

action as inadmissible;

Action brought on 9 February 2005 by the Commission of
the Portuguese
the European Communities

against

Republic

(Case C-53/05)

(2005/C 82/36)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the European Communities on 9
the Court of
February 2005 by the Commission of the European Commu-
nities, represented by P. Andrade and W.Wils, acting as Agents,
with an address for service in Luxembourg.