Case T-4/06: Action brought on  12 January 2006  — Republic of Poland v Commission of the European Communities
Date: 2006-01-12
Institutions: Court of First Instance
Subjects: EU Member State, European Commission, Poland, accession to the European Union, action for annulment (EU), equal treatment, production aid, sugar, sugar levy

25.3.2006

EN

Official Journal of the European Union

C 74/27

Mark or sign cited: The national word mark ‘FLEX’ for goods in
classes 3 and 34

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 15 and 43(2) of Council
Regulation No 40/94 as the evidence filed by Revlon (Suisse)
S.A. cannot be considered valid proof of genuine use of the
word mark ‘FLEX’ during the relevant period, neither in the UK
nor in France

Infringement of Article 8(1)(b) of the Regulation as there is no
similarity between the conflicting trade marks and consequently
no likelihood of confusion.

Action brought on 30 December 2005 — Toyoda Koki
Kabushiki Kaisha/OHIM

(Case T-462/05)

(2006/C 74/51)

Language of the case:English

Parties

Applicant: Toyoda Koki Kabushiki Kaisha (Aichi-Ken,
[represented by: J. F. Wachinger, lawyer]

Japan)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

Internal Market of 14 September 2005,
in Case R
1157/2004-1 to be void, to remand the case to the Board
of Appeal of the Office for Harmonisation in the Internal
Market for reconsideration, and for the issuance of a new
decision,

— impose the costs of the proceedings on the defendant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IFS’ for goods
in class 12 — application No 3 157 492

Decision of the examiner: Refusal of the application in respect of
all the designated goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) and (c) of Council Regu-
lation No 40/94 because of amongst others a wrongful defini-
tion of the relevant public and an erroneous assumption of
descriptive meaning.

Action brought on 12 January 2006 — Republic of Poland
v Commission of the European Communities

(Case T-4/06)

(2006/C 74/52)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: Jarosław Pietras,
Agent of the Government)

Defendant: Commission of the European Communities

— Declare the decision taken by the First Board of Appeal of
the Office for Harmonisation in the Internal Market of 14
September 2005, in Case R 1157/2004-1 to be void and to
allow the registration of the word mark application No.
003157492 ‘IFS’ for the goods ‘steering and power steering,
both for vehicles and parts therefor, excluding independent
front suspension’ in the international class 12, referring to
the Nice Agreement Concerning the International Classifica-
tion of Goods and Services for the Purposes of the Registra-
tion of Marks,

Form of order sought

The applicant claims that the Court should:

— declare Article 2 of Commission Regulation (EC) No
1686/2005 of 14 October 2005 setting the production
levies and the coefficient for the additional levy in the sugar
sector for the 2004/05 marketing year (OJ 2005 L 271 of
15.10.2005, p. 12) to be invalid;

— or, in the alternative, declare the decision taken by the First
Board of Appeal of the Office for Harmonisation in the

— order the Commission of the European Communities to

pay the costs of the proceedings.

C 74/28

EN

Official Journal of the European Union

25.3.2006

Pleas in law and main arguments

The applicant seeks a declaration of invalidity in respect of
Article 2 of Regulation No 1686/2005, which sets the produc-
tion levies and the coefficient for the additional
levy in the
sugar sector for the 2004/05 marketing year with a view to
covering the outstanding balance of the overall loss, in accord-
ance with Article 16 of Council Regulation (EC) No
1260/2001 (1). The disputed article of the regulation sets out
different coefficients for the additional
levy for, on the one
hand, the States constituting the Community prior to 1 May
2004 and, on the other, the ‘new’ Member States.

In support of its action, the applicant sets out the following
heads of complaint:

in the view of

— lack of competence on the part of the European Commis-
sion and breach of Article 16 of Council Regulation (EC)
No 1260/2001, which,
the applicant,
empowers the European Commission to establish only one
coefficient in a set amount for the entire Community, a fact
is confirmed by the
which, according to the applicant,
various unequivocal
concordant
in this
language versions of the provisions contained in the regu-
lation. The applicant further submits that the principles of
the common organisation of the markets within the sugar
sector not only cannot amount to justification for a depar-
ture from the textual
interpretation of the provisions of
Regulation (EC) No 1260/2001 but also rule out any such
departure;

regard,

and,

— inadequate grounds given for the contested measure by
reason of the European Commission's failure to indicate
either the circumstances which could justify the differentia-
tion in the coefficient or the objectives which such a differ-
entiation ought to serve;

— breach of an essential procedural requirement, inasmuch as
Regulation (EC) No 1686/2005 was adopted in a manner
contrary to the requirements of Article 3 of the Rules of
Procedure of the Management Committee for Sugar and
Article 3 of Council Regulation (EEC) No 1 determining the
languages to be used by the European Economic Com-
munity (2) by reason of the fact that the European Commis-
sion, according to the applicant's contentions, did not
submit during the 'comitological' procedure, a Polish-
language version of
the contested
measure. The applicant submits that this infringement is
particularly flagrant in nature inasmuch as it relates to the
draft version of a legal measure and reflects a consistent
practice of the European Commission within the framework
of the Management Committee for Sugar.

the draft version of

(1) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
common organisation of the markets in the sugar sector (OJ 2001
L 178 of 30.06.2001, p. 1).

(2) OJ, English Special Edition 1952-1958, p. 59, as amended.

— infringement of the principle of immediate and full accep-
the acquis communautaire by the new Member
tance of
States; according to the applicant, the differential coefficient
for the additional
levy is in fact a transitional measure
which has no basis in the Act of Accession or in the
measures adopted pursuant thereto. The applicant refers in
this regard to Article 2 of the Act of Accession, which is
the basis for the adoption by the Republic of Poland of the
full rights and obligations flowing from membership, and
which, in the view of the applicant, is also linked to the
assumption of entitlement to benefit from overpayments
and the obligation to make good losses on the market in
sugar which have arisen over the preceding marketing
years;

— infringement of the principle of non-discrimination; the
applicant criticises the Commission on the ground that the
sole criterion for the differentiation in the coefficient in the
regulation under challenge is the date on which Member
States acceded to the European Union. In the applicant's
view, the consequences of accession were exhaustively regu-
lated in the Act of Accession and the measures adopted on
the basis of that Act, and the date on which the European
Union was enlarged cannot be an objective criterion
capable of providing justification for the differentiation thus
introduced;

— infringement of the principle of solidarity; according to the
applicant, the differentiation in the coefficient vis-à-vis the
other Member States amounts to an arbitrary and dispro-
portionate distribution of the costs of financing the sugar
market and one which highlights a dearth of solidarity;

Action brought on 9 January 2006 — Denmark v Commis-
sion

(Case T-5/06)

(2006/C 74/53)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (Copenhagen, Denmark)
(represented by: Jørgen Molde, Agent)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Commission Decision 2005/717/EC of 13 October
2005 amending for the purposes of adapting to the tech-
nical progress the Annex to Directive 2002/95/EC of the
European Parliament and of the Council on the restriction
of the use of certain hazardous substances in electrical and
electronic equipment (1), so far as points 1 and 2 of the
Annex relating to DecaBDE in polymeric applications are
concerned;

— order the Commission to pay the costs of the proceedings.