Case T-393/06: Action brought on 18 December 2006 — Makhteshim Agan Holding and others v Commission
Date: 2007-01-27
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), marketing standard, plant health legislation, plant health product, testing

C 20/36

EN

Official Journal of the European Union

27.1.2007

Form of order sought

— Annul the decision of

the First Board of Appeal of 26

September 2006 in Case R 355/2006-1;

Pleas in law: Violation of Article 7(1)(b) of Council Regulation
No 40/94 as the trade mark is sufficiently distinctive to be regis-
tered.

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a
pallet consisting of an elongated rectangular platform or base
and an equally elongated flange, ornamented with triangle
holes, which are both at a 90 degree angle to each other, for
goods and services in classes 6, 7, 16, 20, 35, 39 et 42 —
application No 4 073 748

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Action brought on 18 December 2006 — Makhteshim
Agan Holding and others v Commission

(Case T-393/06)

(2007/C 20/56)

Language of the case: English

Pleas in law: Violation of Article 7(1)(b) of Council Regulation
No 40/94 as the trade mark is sufficiently distinctive to be regis-
tered.

Parties

Applicants: Makhteshim Agan Holding BV (Amsterdam, The
Nederlands), Makhteshim Agan Italia Srl (Bergamo, Italy) and
Magan Italia Srl (Bergamo, Italy) (represented by: C. Mereu and
K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities

Action brought on 20 December 2006 — Inter-
IKEA v OHIM (representation of a pallet)

Form of order sought

(Case T-390/06)

(2007/C 20/55)

Language of the case: English

Parties

— Annulment of Commission Decision D/531125, of 12

October 2006;

— order the defendant to comply with its obligations under
Community law and review and use all available data,
including human data, to ensure the inclusion of azinphos-
methyl in Annex I to the PPPD;

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

Applicant:
sented by: J. Gulliksson, lawyer)

Inter-IKEA Systems BV (Delft, Netherlands)

(repre-

proceedings.

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

Pleas in law and main arguments

Form of order sought

— Annul the decision of

the First Board of Appeal of 26

September 2006 in Case R 356/2006-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a
pallet consisting of an elongated rectangular platform or base
and an equally elongated flange, both ornamented with round
holes, which are both at a 90 degree angle to each other, for
goods and services in classes 6, 7, 16, 20, 35, 39 et 42 —
application No 4 073 722

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

By means of their application, the applicants seek annulment of
Commission Decision D/531125 set forth in a letter of 12
October 2006, addressed to the agency within the rapporteur
Member State responsible for the review of the active substance
azinphos-methyl under the framework of Directive 91/414/EEC
concerning the placing of plants protection products on the
market (hereinafter, the ‘PPPD’) (1), in which the defendant states
it will not take a decision on the approval and inclusion of the
active substance concerned in Annex I of the said directive and
further indicates that in the absence of approval at Community
level by the date laid down in Article 8, paragraph 2, of the
PPPD, there would no longer be any legal basis for keeping the
substance on the market.

The applicants claim that the contested decision amounts to a
de facto and de jure ban of azinphos-methyl, insofar as it unam-
biguously states that no further decision on the inclusion of the
substance in Annex I of the PPPD will be taken and in that it
aims to achieve an azinphos-methyl marketing ban through the
defendant's inactivity until the expiration of the set time-limit
for approval.

27.1.2007

EN

Official Journal of the European Union

C 20/37

The applicants further submit that the contested decision jeopar-
dises their rights to a fair consideration of the substance at stake
in the light of state-of-the-art scientific studies submitted by
them. In addition, by depriving the applicants of their right to
re-register and continue selling their products in the Member
States, the defendant allegedly breached the principle of propor-
tionality as well as their fundamental right to carry out their
business activities thereby interfering with their property right.

Moreover, the applicants contend that the contested decision is
vitiated by substantial procedural flaws. Precisely, the defendant's
lack of initiative in making a proposal regarding the inclusion of
azinphos-methyl
to the PPPD, as well as the
marketing ban it aims to achieve by its inactivity, violate Article

in Annex I

5, paragraph 2, of Council Decision 1999/468/EC (2) and
Article 8, paragraph 2, of the PPPD.

Finally, should the Court consider that the contested decision is
not a challengeable act under Article 230, paragraph 4, EC, the
their action should still be declared
applicants submit
admissible under Article 232 EC, insofar as the defendant's inac-
tivity constitutes an unlawful failure to act.

that

(1) OJ 1991 L 230, p. 1
(2) Council Decision 1999/468/EC laying out the procedures for the
exercise of implementing powers conferred on the Commission, OJ
(1999) L 184, p. 23