Case T-420/05: Action brought on  25 November 2005  — Vischim v Commission
Date: 2006-02-11
Institutions: Court of First Instance
Subjects: EC Directive, European Commission, action for annulment (EU), chemical industry, marketing standard, plant health product

11.2.2006

EN

Official Journal of the European Union

C 36/33

Action brought on 22 November 2005 — NHL Enter-
prises/OHIM

Action brought on 25 November 2005 — Vischim v
Commission

(Case T-414/05)

(2006/C 36/70)

Language in which the application was lodged: English

(Case T-420/05)

(2006/C 36/71)

Language of the case: English

Parties

Applicant: NHL Enterprises B.V.
[represented by: G. Llewelyn, Solicitor]

(Rijswijk, The Netherlands)

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

Parties

Other party to the proceedings before the Board of Appeal: Glory &
Pompea (Mataró, Spain)

Applicant: Vischim Srl (Milan, Italy) [represented by: C. Mereu,
K. Van Maldegem, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision;

— order OHIM and the intervener to pay the costs.

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘LA KINGS’
for goods in classes 16, 25 and 41 — application No
1 041 102

Proprietor of the mark or sign cited in the opposition proceedings:
Manufacturas Antonio Gassol S.A. The mark cited in the oppo-
sition was later assigned to Glory & Pompea, S.A.

Mark or sign cited: The national
goods in class 25

figurative mark ‘KING’

for

— Order

the partial annulment of Commission Directive
2005/53/EC in so far as it includes entry no. 102, corre-
sponding to the plant protection active substance chlor-
othalonil, in Annex I to the Plant Protection Products Direc-
tive (‘PPPD’), with a purity specification that does not corre-
spond to the specification notified to and evaluated by the
Commission and the Standing Committee on Plant Health;
in the alternative, immediately to modify entry no. 102 to
reflect the new FAO specification of November 2005;

— order the partial annulment of the Review Report under-
lying the inclusion of chlorothalonil in Annex I to Directive
91/414 insofar as it does not recognise the status of 'main
data submitter' to the applicant and fails to list the appli-
cant's data in Appendix IIIA thereto;

Decision of the Opposition Division: Opposition upheld for all the
goods applied for in class 25

— order the defendant to comply with its obligations under

Community law and act on the applicant's request;

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the degree of similarity between the marks
at issue, notwithstanding the identity of the goods, is not suffi-
ciently high.

— order the defendant to compensate the applicant in the
provisional amount of 1 (one) Euro for damages suffered as
a result of the contested measure, or, in the alternative, as a
result of the Defendant's failure to comply with its obliga-
tions under Community law by failing to respond to the
applicant, as well as any applicable interests, pending the
exact calculation and determination of the exact amount;

— order the defendant to pay all costs and expenses in these

proceedings.

C 36/34

EN

Official Journal of the European Union

11.2.2006

Pleas in law and main arguments

The applicant produces chlorothalonil -based plant protection
products and, therefore, has an interest in securing the inclu-
sion of that substance in Annex I of the PPPD (1), which would
allow it to continue with the production of its product. It thus
contests Directive 2005/53 (2)
this
substance in Annex I but with a specification that would
operate to exclude the product the applicant produces.

insofar as

includes

it

In support of this application the applicant first invokes a
number of alleged procedural flaws of the contested measure,
as well as a number of substantive legal flaws. From a proce-
dural standpoint, the applicant contends that it was unlawfully
rejected as a main data submitter and that its studies were
unlawfully removed from Appendix IIIA to the review report.
In this context, it also alleges that the current version of that
report cannot have been approved by the Standing Committee,
since it is posterior to the latter's meeting approving the review
report. It also alleges that it was excluded from certain critical
meetings and/or exchanges,
in violation of procedural safe-
guards provided for in the PPPD and Regulation 3600/92 (3)
and that its chlorothalonil specification was unlawfully with-
drawn from Annex I to the PPPD despite the reliance on its
data. The applicant also challenges the Commission's decision
to rely on a new FAO specification for changing the chlorotha-
lonil specification under the PPPD, submitting that such a
change was not scientifically necessary.

further contends that

its own chlorothalonil
The applicant
specification meets the requirements of Article 5 and therefore
the Commission was obliged, under this latter provision as well
as Article 95 EC, to include it in Annex I. It also considers that
the principle of subsidiarity was violated in that the Commis-
sion followed a ‘maximal standard’ for chlorothalonil, violating
the Member States' prerogative when making re-registration
decisions under the PPPD. Also, the applicant invokes the viola-
tion of
the principle of sound administration enshrined in
Article 211 EC as well as the violation of Article 13 of the
PPPD and of the applicant's legal rights and legitimate expecta-
tions.

Moreover, the applicant contends that the contested measure
violates its rights to a fair hearing,
its right of defence, the
Commission's duty to state reasons and fundamental Com-
munity law principles such as proportionality, legitimate expec-
tations,
legal certainty and equal treatment. It also allegedly
violates the applicant's right to property since it deprives the
applicant of its right to conduct business activities. Further, the
applicant considers that the contested measure distorts compe-
tition to the extent that it effectively creates a monopoly for a
competitor's product, allegedly the only one conforming to the
specification adopted.

In the alternative,
the applicant attacks the Commission's
alleged failure to act upon its formal request to either formally
adopt the contested measure with an amended chemical iden-
tity/purity definition satisfying the applicant's submissions or to
refrain from adopting it in its current form pending a decision
on a different chemical identity/purity definition.

The applicant finally requests compensation for the damages it
allegedly incurred due to its inability to continue marketing of
its plant protection products based on chlorothalonil.

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market OJ L 230,
19/08/1991, p. 1.

(2) Commission Directive 2005/53/EC of 16 September 2005
amending Council Directive 91/414/EEC to include chlorothalonil,
chlorotoluron, cypermethrin, daminozide and thiophanate-methyl
as active substances, OJ L 241, 17/09/2005, p. 51.

(3) Commission Regulation (EEC) No 3600/92 of 11 December 1992
laying down the detailed rules for the implementation of the first
stage of the programme of work referred to in Article 8 (2) of
Council Directive 91/414/EEC concerning the placing of plant
protection products on the market, OJ L 366, 15/12/1992, p. 10, as
last amended by Regulation (EC) No 2266/2000, OJ L 259,
13/10/2000, p. 27.

Action brought on 8 December 2005 — EMC Develop-
ment v Commission

(Case T-432/05)

(2006/C 36/72)

Language of the case: English

Parties

Applicant(s): EMC Development AB (Lulea, Sweden)
sented by: M. Elvinger, lawyer]

[repre-

Defendant(s): Commission of the European Communities

Form of order sought

— Annul the Commission's decision dated 28th September
2005 rejecting the applicant's complaint pursuant to Article
3(2) of Council regulation 17/62;

— order the Commission to pay the costs.