Case T-178/06: Action brought on 28 June 2006 — Bavaria v Council
Date: 2006-09-16
Institutions: Court of First Instance
Subjects: Council of the European Union, Germany, appeal to the Court (EU), beer, brand name, designation of origin, indemnification, location of production, trade-mark law

C 224/46

EN

Official Journal of the European Union

16.9.2006

Order of the President of the Court of First Instance of 26
June 2006 — Olympiakes Aerogrammes v Commission

Re:

(Case T-416/05 R)

(Interim measures — Application for a suspension of opera-
tion — State aid — Urgency)

(2006/C 224/98)

Language of the case: Greek

Parties

Applicant: Olympiakes Aerogrammes AE (Kallithea, Greece)
(represented by: V. Christianos, lawyer)

Defendant: Commission of the European Communities (repre-
sented by: D. Triantafyllou and T. Scharf, acting as Agents)

Re:

Application for a suspension of operation of Article 2,
combined with Article 1(1) of Commission Decision C 11/2004
on State aid (ex NN 4/2003) — Olympiaki Aeroporia —
Restructuring and privatisation, of 14 September 2005

Operative part of the order

1. The application for interim measures is dismissed;

2. Costs are reserved.

Application for suspension of the operation of the Commission
Decision of 20 October 2005 relating to a proceeding under
Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw tobacco —
Italy) in so far as it imposes a fine of EUR 2,05 million on the
applicant, together with an application for an exemption from
the obligation to provide a bank guarantee as a condition for
that fine not being recovered immediately.

Operative part of the order

(1) The obligation on Romana Tabacchi SpA to provide to the
Commission a bank guarantee in order
to avoid immediate
recovery of the fine imposed on it by Article 2 of the Commission
Decision of 20 October 2005 relating to a proceeding under
Article 81(1) of the EC Treaty (Case COMP/C.38.281/B.2 —
Raw tobacco — Italy) is suspended on the following terms:

(a) within a period of two weeks of notification of this order, the

applicant shall:

— provide a bank guarantee of EUR 400 000;

— pay to the Commission the sum of EUR 200 000;

(b) within a period of three months of notification of this order,
the applicant shall pay to the Commission the sum of
EUR 330 000;

(c) with effect from 1 January 2007, the applicant shall pay to
the Commission the sum of EUR 100 000 per month until
the first of the following two events occurs:

— payment of

the balance of

the fine remaining due,
together with the interest set out by the Commission in
its letter of notification of the decision to impose the fine,
dated 9 November 2005;

Order of the President of the Court of First Instance of 7
July 2006 — Romana Tabacchi v Commission

(2) The costs are reserved.

— judgment in the main proceedings.

(Case T-11/06 R)

(Application for interim measures — Application for suspen-
sion of operation — Competition — Payment of a fine —
Bank guarantee — Prima facie
cases — Urgency —
Weighing up of interests — Partial and conditional suspen-
sion)

(2006/C 224/99)

Language of the case: Italian

Parties

Applicant: Romana Tabacchi (Rome, Italy) (represented by: M.
Siragusa and G.C. Rizza, lawyers)

Action brought on 28 June 2006 — Bavaria v Council

(Case T-178/06)

(2006/C 224/100)

Language of the case: Dutch

Parties

Applicant: Bavaria N.V. (represented by: G. van der Wal, lawyer)

Defendant: Commission of the European Communities (repre-
sented by: E. Grippini Fournier and F. Amato, agents)

Defendant: Council of the European Union

16.9.2006

EN

Official Journal of the European Union

C 224/47

Form of order sought

The applicant submits that the Court should:

— Hold that the invalidity of Regulation No 1347/2001 gives
rise to non-contractual
liability on the part of the Com-
munity pursuant to the second paragraph of Article 288 EC;

— Order the Council to compensate Bavaria in respect of the
damage which it has suffered, and which it will suffer, and
set such compensation at EUR 100 million, or at such
amount as the Court may consider to be meet and proper,
with payment of default interest as appropriate;

— Order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the Council is liable in respect of
the damage suffered, and to be suffered, by it as a result of the
adoption of Council Regulation (EC) No 1347/2001 of 28 June
2001 (1), which registers the designation ‘Bayerisches Bier’ as a
protected geographical
indication. The applicant submits that
Regulation No 1347/2001 is unlawful and cannot for that
reason apply as against the applicant. The harm which the
illegality consists in,
applicant has
among other things, the costs of proceedings which have to be
in various
conducted, and which have been conducted,
Member States, damage to the reputation of
its marks
containing the word ‘Bavaria’, and the future damage conse-
quent on the infringement and loss of its trade mark rights.

incurred through that

The applicant submits that ‘Bayerisches Bier’ has been incor-
rectly designated as a geographical indication inasmuch as beer
is not an agricultural product or a foodstuff within the terms of
Annex I to the EC Treaty. According to the applicant, Regu-
lation No 2081/92 (2) cannot constitute the legislative basis for
the registration of ‘Bayerisches Bier’ as a protected geographical
that regulation is also
indication in view of
unlawful.

the fact

that

tics. It submits that Regulation No 2081/92 does not permit
the status of a protected geographical indication to be attrib-
uted to a generic collective term for different types of beer.

The application for registration by Germany also did not, the
applicant argues, satisfy the requirements of Article 4(2) of
Regulation No 2081/92 and provided an inadequate basis for
registration.

The applicant submits further that the Council breached Article
3 of Regulation No 2081/92 and Article 28 EC by registering
‘Bayerisches Bier’, as that designation is a generic name in
several Member States.

The procedure under Article 17 of Regulation No 2081/92 is
also, the applicant avers, invalid inasmuch as concerned parties
did not have any opportunity to set out their views in a trans-
parent and fair administrative procedure.

It claims further that the Council proceeded from an erroneous
point of view concerning the existence of beer types containing
the designation ‘Bayerisches Bier’,
in that none of the appli-
cant's marks contains the indication ‘Bayerisches Bier’.

The applicant also alleges infringement of its exclusive trade-
mark rights as set out in Article 16(1) of the Agreement of
15 April 1994 on Trade-Related Aspects of Intellectual Prop-
erty Rights, including the trade in counterfeit goods (‘the TRIPS
Agreement’). The extent of the permitted use of a geographical
indication is not defined in greater detail by Article 14(3) of
Regulation No 2081/92 or by Regulation No 1347/2001. The
fact that the applicant's exclusive right is not fully protected is
at variance with Article 16(1) of the TRIPS Agreement. Article
14(3) of Regulation No 2081/92 also applies conditions which
are different from, and more restrictive than, Article 16(1) of
the TRIPS Agreement. The co-existence between the older
Bavaria mark and the geographical indication ‘Bayerisches Bier’
is also, the applicant submits, incompatible with Article 16(1)
of the TRIPS Agreement.

The applicant goes on to contend that the Council wrongly
proceeded from the premise that the indication ‘Bayerisches
Bier’ meets the requirements of Articles 2 and 4 of Regulation
No 2081/92.

The fact that the Council merely took account of the ‘Bavaria’
it
trade mark and ignored the brand name ‘Bavaria’
claims, contrary to the TRIPS Agreement.

is also,

That conclusion,
the applicant argues, was not adequately
reasoned, particularly in light of the fact that the application
for registration was not uncontested.

The designation ‘Bayerisches Bier’ also fails to meet the require-
ments governing application of the simplified procedure under
Articles 17 and 2 of Regulation No 2081/92 inasmuch as that
designation did not, prior to the reference date of 25 July
1993, enjoy any legal protection in Germany and had not
become current through usage.

The applicant goes on to state that Bavaria is one of the
German Länder and that the name of a Land may only in excep-
tional cases be used for a protected indication.

‘Bayerisches Bier’ also does not, according to the applicant,
have any regional qualitative renown or reputation as it covers
a large assortment of products with very differing characteris-

By way of conclusion, the applicant submits that, in adopting
Regulation No 1347/2001, the Council has infringed its prop-
erty rights and legitimate expectations. In particular, the appli-
cant contends, one consequence of Regulation No 1347/2001
may be to prevent the applicant from making further use of its
trade mark in one or more Member States.

(1) Council Regulation (EC) No 1347/2001 of 28 June 2001 supple-
menting the Annex to Commission Regulation (EC) No 1107/96 on
indications and designations of
the registration of geographical
origin under the procedure laid down in Article 17 of Council
Regulation (EEC) No 2081/92 (OJ 2001 L 182, p. 3).

(2) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin for
agricultural products and foodstuffs (OJ 1992 L 208, p. 1).