Case T-403/07: Action brought on 8 November 2007 — Union Nationale de l'Apiculture Française and Others v Commission
Date: 2007-11-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), insecticide, marketing standard, pesticide, pharmaceutical product, plant health legislation, plant health product

12.1.2008

EN

Official Journal of the European Union

C 8/19

Action brought on 6 November 2007 — Kaul v OHIM —
Bayer (ARCOL)

(Case T-402/07)

(2008/C 8/34)

Language of the case: English

According to the applicant, the Board of Appeal failed to take
into account the obligations laid down in Articles 63(6) and 73
of the CTMR by disregarding the guidance provided by the
Court of Justice in Case C-29/05 P and by refusing to exercise
any discretion under Article 74(2) of the CTMR. Furthermore,
the applicant contends that the Board failed to state reasons on
which it based its decision.

Parties

Applicant: Kaul GmbH (Elmshorn, Germany) (represented by: G.
Würtenberger and R. Kunze, lawyers)

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

Action brought on 8 November 2007 — Union Nationale
de l'Apiculture Française and Others v Commission

(Case T-403/07)

(2008/C 8/35)

Other party to the proceedings before the Board of Appeal: Bayer AG
(Leverkusen, Germany)

Language of the case: French

Form of order sought

Parties

— The decision of the Second Board of Appeal of 1 August
2007 in Case R 782/2000-2, pertaining to the opposition
based on Community trade mark registration No 49 106
‘CAPOL’
application
No 195 370 ‘ARCOL’, be annulled;

against Community

trade mark

— the opposition against Community trade mark application

No 195 370 ‘ARCOL’, be granted;

Applicants: Union Nationale de l'Apiculture Française (Paris,
France), Deutscher Berufs- und Erwerbsimkerbund eV (Soltau,
Germany), Unione Nazionale Associazioni Apicoltori
Italiani
(Castel San Pietro Terme, Italy) and Asociación Galega de Apicul-
tura (Santiago de Compostela, Spain) (represented by: B. Fau,
lawyer)

— the defendant pay the costs of the proceedings.

Defendant: Commission of the European Communities

Pleas in law and main arguments

Applicant for the Community trade mark: Bayer AG

Community trade mark concerned: The Community word mark
‘ARCOL’
for goods in Classes 1, 17 and 20 — application
No 195 370

Proprietor of the mark or sign cited in the opposition proceedings:
Kaul GmbH

Mark or sign cited: The Community word mark ‘CAPOL’ for
goods in classes 1

Decision of the Opposition Division: Rejected the opposition in its
entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 63(6), 73, and 74
of Council Regulation (EC) No 40/94(‘the CTMR’).

Form of order sought

The applicants claim that the Court should:

— declare

admissible

the

application for

annulment of

Commission Directive 2007/52/EC of 16 August 2007;

— annul Commission Directive 2007/52/EC of 16 August

2007;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicants are seeking the annulment of
Commission Directive 2007/52/EC of 16 August 2007,
amending Council Directive 91/414/EEC of 15 July 1991
concerning the placing of plant products on the market, to
include ethoprophos, pirimiphos-methyl and fipronil as active
substances (1).

C 8/20

EN

Official Journal of the European Union

12.1.2008

In support of their action for annulment, the applicants are
putting forward three pleas.

First of all, they submit that the contested directive was adopted
in breach of the procedural rules which, the applicants claim,
the Commission was required to comply with. In the applicants'
submission, even if the Commission may have been authorised
by the Council to adopt, by means of a directive, the imple-
menting measures necessary to apply Directive 91/414/EEC, it
does not have the authority to amend that latter directive, in
particular with regard to the obligations on the Member States.
The applicants submit that the contested directive is not a mere
implementing directive but a directive amending Directive
91/414/EEC and, as such, should have been adopted pursuant
to the procedure requiring prior consultation of the European
Parliament. In the absence of such consultation, it is vitiated by
a procedural defect.

In addition, the applicants allege that, under the cloak of amend-
ments to the national authorisation procedures for the placing
of plant products on the market, the contested directive in fact
infringes the uniform rules of assessment laid down by the basic
directive 91/414/EEC with regard to the inclusion of an active
substance in Annex I thereto.

(1) OJ L 214, p. 3.

EC Treaty by not having defined a position with respect to
the applicant's complaint lodged with the Commission on
8 May 2006 followed by a letter of formal notice of 31 July
2007;

— order the Commission to pay the entire costs, including the
costs incurred by the applicant in the proceedings even if,
following the bringing of the action, the Commission takes
action which in the opinion of the Court removes the need
to give a decision or if the Court dismisses the application
as inadmissible; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

The applicant claims that the Commission has failed to act by
not having defined its position, after having been invited to do
so under Article 232 EC, on the applicant's complaint lodged
with the Commission on 8 May 2006 regarding i) unlawful
state aid allegedly granted to Air France by France in form of
differentiated airport charges charged by the French airports
depending on the destination of the flights, or ii) in the alterna-
tive, anti-competitive discrimination in violation of Article 82 EC
in favour of Air France, should the French airports be consid-
ered to have acted autonomously.

Action brought on 8 November 2007 — Ryanair v
Commission

In support of its application, the applicant submits that the
Commission was under an obligation to conduct a diligent and
impartial examination of the complaint received in order to:

(Case T-404/07)

(2008/C 8/36)

Language of the case: English

— adopt a decision either declaring that the measures in ques-
tion did not amount to state aid within the meaning of
Article 87(1) EC, or declaring that the measures were to be
considered state aid within the meaning of Article 87(1) EC,
but compatible with the common market under Article 87(2)
and (3) EC, or

— to initiate a procedure under Article 88(2) EC.

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

required, upon receipt of

In the alternative, the applicant submits that the Commission
was
subsidiary
complaint that competition law had been infringed, either to
initiate a procedure regarding the subject of the complaint or to
adopt a definitive decision rejecting the complaint, after having
given the applicant the opportunity to comment.

applicant's

the

Form of order sought

— Declare in accordance with Article 232 EC that the Commis-
sion has failed to act pursuant to its obligations under the

The applicant further alleges that under the circumstances and
in view of the Commission's familiarity with the issues involved,
applicant's
the period of
complaint and its letter of formal notice was unreasonably long,
and the inaction of the Commission during that period consti-
tutes failure to act within the meaning of Article 232 EC.

fourteen months between the