Case C-47/09: Action brought on 2 February 2009 — Commission of the European Communities v Italian Republic
Date: 2009-02-02
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, confectionery product, consumer protection, labelling, marketing, product designation

C 82/18

EN

Official Journal of the European Union

4.4.2009

— Allow the appellant's application for annulment of the deci-
sion of the Board of Appeal of the CPVO of 2 May 2006
(Reference A003/2004) made in the proceedings at first
instance.

With regard to point 2, in the alternative:

— Refer the case back to the Court of First Instance for fresh

judgment.

Action brought on 2 February 2009 — Commission of the
European Communities v Italian Republic

(Case C-47/09)

(2009/C 82/33)

Language of the case: Italian

— Order the CPVO to pay all the costs arising from the present
the proceedings before the Court of First

proceedings,
Instance and the proceedings before the Board of Appeal.

Parties

Pleas in law and main arguments

The object of the present appeal is the judgment of the Court of
First Instance by which the appellant's action against the deci-
sion of the Board of Appeal of the Community Plant Variety
Office concerning the application for Community plant variety
rights in respect of the plant variety SUMCOL 01 was dismissed.
By that judgment which is subject to the present appeal the
Court of First Instance confirmed the decision of the Board of
Appeal, according to which the candidate variety was not clearly
distinguishable from the reference variety, which was to be
regarded as a matter of common knowledge.

The appellant's first ground of appeal refers to a number of
procedural errors. In its review of the decision of the Board of
Appeal the Court of First Instance made findings the incorrect-
ness of which is immediately apparent from the pleadings. In
imposed excessive
addition it distorted facts and evidence,
demands with regard to the applicant's submissions, drew
contradictory conclusions and infringed the appellant's right to
be heard. The Court of First Instance for example ignored large
parts of the appellant's submissions and numerous offers of
evidence made by him, rejecting them by pointing out that the
submissions were too general. The Court of First Instance in so
doing also overlooked the fact that it was in part objectively
impossible for the appellant to be any ‘more specific’
in his
submissions. It thus infringed both the appellant's right to be
heard and the principles governing the burden of proof and
evidence-gathering. Furthermore the Court of First
Instance
unlawfully expanded the subject-matter of the appeal proceed-
ings by basing the judgment which is subject to the present
appeal on reasoning which was not used either by the Office or
by the Board of Appeal.

By its second ground of appeal the appellant argues that the
Court of First Instance infringed Community law when inter-
preting Article 7(2) of Council Regulation (EC) No 2100/94 of
27 July 1994 on Community plant variety rights by regarding
the written description of a variety in the academic literature as
proof that it was a matter of common knowledge. In addition,
the appellant contends that infringements of Article 62 of the
abovementioned Regulation and Article 60 of Regulation (EC)
No 1239/95 establishing implementing rules for the application
of Council Regulation (EC) No 2100/94 as regards proceedings
before the Community Plant Variety Office occurred.

Applicant: Commission of the European Communities (repre-
sented by: F. Clotuche-Duvieusart and M. Nardi, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— Declare that, by making it possible to add the adjective
‘puro’ or the phrase ‘pure chocolate’ to the sales names of
chocolate products which do not contain vegetable fat other
than cocoa butter, the Italian Republic has failed to fulfil its
obligations under Article 3 of Directive 2000/36/EC (1) in
conjunction with Article 2(1)(a) of Directive 2000/13/EC (2)
and Article 3(5) of Directive 2000/36;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The labelling and,
in particular, sales names of chocolate
products have been totally harmonised within the Community,
with the aim of ensuring that the consumer is given accurate
information, by means of the directive on labelling (2000/13)
and the directive on chocolate products (2000/36). Directive
2000/36 provides that products which contain a maximum of
5 % of certain vegetable fats are to be allowed to retain their
sales names unchanged but the labelling of those products must
contain the specific statement, in bold letters, ‘contains vegetable
fats in addition to cocoa butter’.

The Italian legislation at issue, which restricts the addition of
the word ‘puro’ to the sales name of products containing only
cocoa butter by way of fat alters the harmonised definitions
adopted at Community level and undermines them. Given that,
in Italian, the word ‘puro’ means unadulterated, untouched and
therefore genuine, consumers are led to believe that goods
which, while complying with the directive and the conditions
laid down therein relating to sales names, contain vegetable fats
other than cocoa butter and are not pure, that is to say, they are
adulterated, processed and not genuine. That is attributable to
the simple fact that those products contain vegetable fats of a
kind and in an amount which are nevertheless permitted by the
legislation itself without requiring a change in the sales name.

Moreover, the word ‘puro’
is an adjective which qualifies the
noun and its use in sales names is subject to compliance with a
number of conditions. In particular, Article 3(5) of Directive
2000/36 provides that the use of information or descriptions
to compliance with
relating to quality criteria is

subject

4.4.2009

EN

Official Journal of the European Union

C 82/19

conditions laying down a minimum content for dry cocoa solids
which is greater than that laid down for the use of names in
which those descriptions do not appear. The Italian legislation
makes the use of the word ‘puro’ subject simply to the presence
of cocoa butter by way of fat and there is no requirement to
comply with the higher minimum content for dry cocoa solids.
That constitutes an infringement of Article 3(5) of the directive
and is misleading for the consumer.

(1) Directive 2000/36/EC of

the
Council of 23 June 2000 relating to cocoa and chocolate products
intended for human consumption (OJ 2000 L 197, p. 19).

the European Parliament and of

(2) Directive 2000/13/EC of

the
Council of 20 March 2000 on the approximation of the laws of the
Member States relating to the labelling, presentation and advertising
of foodstuffs (OJ 2000 L 109, p. 29).

the European Parliament and of

the judgment of

the Court of First

Appeal brought on 2 February 2009 by Lego Juris A/S
against
Instance
(Eighth Chamber) delivered on 12 November 2008 in Case
T-270/06 Lego Juris A/S v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Other
party before the Board of Appeal, intervener before the
Court of First Instance Mega Brands, Inc.

trade mark protection, independently of whether the criteria
of art. 7(1)(e)(ii) CTMR as defined by the Court
in the
Philips/Remington decision (2) are fulfilled or not.

b) applied the wrong criteria in the identification of the essen-
tial characteristics of a three-dimensional trade mark: and

c) applied an incorrect functionality test in that it i) did not
limit its assessment to the essential characteristics of the
trade mark at issues and, ii) did not define the appropriate
criteria for assessing whether a characteristic of a shape is
functional and, in particular, refused to take into account any
potential a lternative designs.

(1) OJ L 11, p. 1.
(2) Case C-299/99 Philips [2002] ECR I-5475.

Action brought on 4 February 2009 — Commission of the
European Communities v Ireland

(Case C-50/09)

(2009/C 82/35)

Language of the case: English

(Case C-48/09 P)

(2009/C 82/34)

Language of the case: English

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: P. Oliver, C. Clyne, J.-B. Laignelot, Agents)

Appellant: Lego Juris A/S (represented by: V. von Bomhard,
Rechtsanwältin, T. Dolde, A. Renck, Rechtsanwälte)

Defendant: Ireland

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Megabrands, Inc.

The applicant claims that the Court should:

Form of order sought

The appellant claim that the Court should:

— set aside the judgment of

the Court of First

Instance,

because it violates Article 71(1)(e)(ii)CTMR (1)

Pleas in law and main arguments

The appellant submits that the contested judgment infringes
art. 7(1)(e)(ii) of the Community Trade Mark Regulation. The
appellant maintains that the Court of First Instance:

— declare that by failing to transpose Article 3 of Council
Directive 85/337/EEC (1) on the assessment of the effects of
certain public and private projects on the environment as
amended;

— declare that by failing to ensure that, where Irish planning
autorities and the Environmental Protection Agency both
have decision-making powers on a project, there will be
complete fulfilment of the requirements of Articles 2, 3
and 4 of that Directive;

— declare that by excluding demolition works from the scope

of its legislation transposing that Directive,

Ireland has failed to fulfil its obligations under that Direc-
tive.

a) interpreted art. 7(1)(e)(ii) CTMR in such a way as to effec-
tively preclude any shape which performs a function from

— order Ireland to pay the costs.