Source: EURLEX
Language: en
Format: md

29.6.2002 EN Official Journal of the European Communities C 156/29

_Pleas in law and main arguments_ **Action brought on 27 March 2002 by Hugo Boss AG**
**against the Office for Harmonisation in the Internal**
**Market**

**(Case T-94/02)**
The applicant manages, as general partner, the business of the
company Klausner Nordic Timber GmbH which was founded
in 1997 and built a sawmill in Wismar in 1998. By the (2002/C 156/57)
contested decision, the Commission declared the State aid
which the Federal Republic of Germany granted to the _(Language of the case: English)_
applicant in relation to the construction and expansion of the
sawmill to be incompatible with the common market.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 27 March 2002 by Hugo Boss AG,
represented by Mr Emmanuel Baud of Latham & Watkins,
The applicant claims, first, that the guarantee in excess of
Paris (France). A further party to the proceedings before the
EUR 15,21 million with an aid component of 0,5 % must be
Board of Appeal was Delta Protipos Biomichania Galaktos S.A.
regarded as ‘de minimis’ aid, thus precluding a Commission
decision ordering the recovery of that aid. The Commission
therefore wrongly applied Article 87 EC by failing to comply The applicant claims that the Court should:
with Commission Regulation (EC) No 69/2001( [1] ) and/or the
notice on the de minimis rule for State aid. — annul the contested Decision rendered by the Fourth
Board of Appeal in its ruling no. R0053/2001-4 on
12 December 2001;

—
order that the BOSS Community Trade Mark application
The applicant further submits that the Commission misapplied
nr 331462 for ice cream be rejected;
Articles 87 and 88 EC and the German Investment Allowance
Law. The Investment Allowance Law of 1999 provides for the —
order the OHIM to pay the costs.
grant of a tax investment allowance for the acquisition and
manufacture of capital equipment and buildings by businesses
located in the former East Germany and was approved in its
entirety by the Commission. The requirements of the Law are _Pleas in law and main arguments_
fulfilled, so that the investment allowance in favour of the
applicant was lawful. The Commission’s decision that the grant Applicant for the Com- Delta Protipos Biomichania
of an investment allowance to the applicant was permissible munity trade mark: Galaktos S.A.
only as to 10 % is therefore unlawful.
The Community trade The word mark ‘BOSS’ for certain
mark concerned: goods in classes 29, 30, 31, 32
and 33

Moreover, the applicant claims that the decision constitutes an Proprietor of the right to Hugo Boss AG
infringement of the prohibition venire contra factum proprium the trade mark or sign
and the Community principle of the protection of legitimate asserted by way of oppoexpectations. Furthermore, the Commission unlawfully failed sition in the opposition
to consider the actual aid intensity amount and infringed proceedings:
Council Regulation (EC) No 659/1999 and Article 253 EC( [2] ).
Finally, the Commission infringed Articles 87, 88 and 253 EC Trade mark or sign The German registration of the
by way of its formulaic and inaccurate consideration of the asserted by way of oppo- word mark ‘BOSS’ for certain
company Klausner Nordic Timber as a large-scale company. sition in the opposition goods in classes 3, 9, 14, 18,
proceedings: 24 and 25 and the following
international registration of this
mark as well as the international
registration of the word mark
‘BOSS’ for certain goods in class( [1] ) Commission Regulation (EC) No 69/2001 of 12 January 2001 on
es 29, 30, 31, 32 and 33 and the
the application of Articles 87 and 88 of the EC Treaty to de
international registration for these
minimis aid (OJ 2001 L 10, p. 30).
( [2] ) Council Regulation (EC) No 659/1999 of 22 March 1999 laying same goods of the word mark
down detailed rules for the application of Article 93 of the EC ‘BOSS HUGO BOSS’.
Treaty (OJ 1999 L 83, p. 1).
Decision of the Oppo- Rejection of the opposition.
sition Division:

Decision of the Board of Dismissal of the appeal introAppeal: duced by Hugo Boss AG.

C 156/30 EN Official Journal of the European Communities 29.6.2002

Grounds of claim: Violation of Article 8(5) of According to the applicant, the Commission made manifest
Council Regulation 40/94 ( [1] ). errors of assessment and errors in law in concluding that the
According to the applicant, the commitments are sufficient to take away the said competitive
trade mark is detrimental to the concerns and has therefore violated Articles 2 (2) and 8 (2) of
repute of the earlier trade mark the Merger Regulation( [2] ).
and constitutes an unfair advantage for Delta.

In the contested Decision in the present case, the Commission
( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
imposed on Shell and DEA the obligation to make available,
Community trade mark (OJ 11, p. 1)
up to a certain quantity, access to Shell’s terminal facilities to
producers of ethylene. This remedy is based, according to the
applicant, on an error of assessment. The applicant submits
that this obligation is unclear in its definition of the entities
that should be granted access. As a consequence, this remedy
could be made ineffective if access is granted to entities who
should not, according to the applicant, benefit from this access.
**Action brought on 5 April 2002 by Ineos NV against the** The remedy is also limited in time, while the situation after its
**Commission of the European Communities** expiry will remained the same as it was originally. Furthermore,
the applicant claims that the volume of ethylene that can be
put on the ARG+market in this manner is insufficient to
**(Case T-99/02)**
remedy the constraints on competition caused by the operation.
(2002/C 156/58)

_(Language of the case: English)_
The Commission also made an error in law since there is no
protection for third parties on the market until the remedies
in the Shell/DEA case and in the BP/E.ON case become
An action against the Commission of the European Communi- effective. The remedies imposed in each case are only effective
ties was brought before the Court of First Instance of the if the remedies in the other case are operative as well. The
European Communities on 5 April 2002 by Ineos NV, remedies to be given by Shell/DEA will not, however, be
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr operative until 1 January 2003 or later. Therefore, the
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium). jointly dominant position will, according to the applicant, be
unconstrained until all the remedies are operative. Meanwhile,
the contested Decision does not provide for any interim
The applicant claims that the Court should: protection for third parties.

—
annul, under Article 230 of the EC Treaty, the Commission Decision in case no. COMP/M.2389-Shell/DEA
in its entirety and/or insofar as it concerns the market for
The applicant claims in addition that the errors of assessment
supply of merchant ethylene;
and the error in law of the Commission concerning the remedy
— in the BP/E.ON case is another ground for annulment of the
order the Commission to pay the costs. Decision contested in the present case since both cases are so
closely related to each other. In the BP/E.ON case, the
Commission considered that the commitment to reduce the
combined shareholding of BP and Veba Oel, by two out of
_Pleas in law and main arguments_
three shares, would achieve open access at reasonable prices
for use of the ARG pipe network.

The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.
The applicant argues that the remedy in the BP/E.ON case
gives no control over how the future shareholders will conduct
The applicant contests the Decision of the Commission themselves with regard to the company’s future strategy, and
declaring an operation where Deutsche Shell GmbH would that there is, therefore, no guarantee that this remedy would
acquire sole control of the undertaking DEA Mineraloel AG reconstitute the ARG pipe network as a common carrier.
under certain conditions compatible with the common market Furthermore, the applicant states that the transfer of a share
and the EEA Agreement. These conditions were necessary needs the unanimous approval of all the other shareholders,
since the operation gave rise to competition concerns on the which constitutes an element of uncertainty in the remedy.
ARG+ merchant ethylene market. In particular, there was a The applicant submits also that the Commission has made an
risk of creating a joint dominant position of Shell/DEA and error in law since the remedy gives no provisional solution to
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON( [1] ). These cases the problems of lack of access and high transportation charges
were treated similarly by the Commission. on the pipe network until the divestment of the shares.