Source: EURLEX
Language: en
Format: md

4.5.2002 EN Official Journal of the European Communities C 109/31

**Action brought on 26 February 2002 by the Commission** **Appeal brought on 27 February 2002 by the Office for**
**of** **the** **European** **Communities** **against** **the** **United** **Harmonisation in the Internal Market (Trade Marks and**
**Kingdom of Great Britain and Northern Ireland** **Designs) against the judgment delivered on 11 December**
**2001 by the Fourth Chamber of the Court of First Instance**
**of the European Communities in Case T-138/00 between**
**(Case C-63/02)** **Erpo Möbelwerke GmbH and the Office for Harmonis-**
**ation in the Internal Market (Trade Marks and Designs)**

(2002/C 109/53)

**(Case C-64/02 P)**

An action against the United Kingdom of Great Britain and (2002/C 109/54)
Northern Ireland was brought before the Court of Justice of
the European Communities on 26 February 2002 by the
Commission of the European Communities, represented by
Michael Shotter, acting as agent, with an address for service in
Luxembourg. An appeal against the judgment delivered on 11 December
2001 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-138/00 between Erpo
Möbelwerke GmbH and the Office for Harmonisation in the
The Applicant claims that the Court should:
Internal Market (Trade Marks and Designs)( [1] ) was brought
before the Court of Justice of the European Communities on

—
declare that by failing to adopt for Northern Ireland 27 February 2002 by the Office for Harmonisation in the
and Wales all the laws, regulations and administrative Internal Market (Trade Marks and Designs), represented by
provisions necessary to comply with Council Directive Alexander von Mühlendahl, Vice-President of the Office, and
98/83/EC of 3 November 1998 on the quality of water Gregor Schneider, member of the Legal Services and Court
intended for human consumption( [1] ) or, in any event, by Proceedings Unit of the Legal Department.
failing to notify such provisions to the Commission, the
United Kingdom of Great Britain and Northern Ireland
has failed to fulfil its obligations under Article 17(1) and
17(2) of this directive; The appellant claims that the Court should:

—
order the United Kingdom to pay the costs. —
set aside the contested judgment;

—
dismiss the action against the decision of the Third Board
of Appeal of 23 March 2000 in Case R 392/1999-3, or
_Pleas in law and main arguments_
alternatively refer the proceedings back to the Court of
First Instance;

Article 249 EC, under which a directive shall be binding as to

—
the result to be achieved, upon each Member State, carries by order the other party to the proceedings to pay the costs
implication an obligation on the Member States to observe the both of the proceedings at first instance and of the appeal
period for compliance laid down in the directive. That period proceedings.
expired on 25 December 2000 without the United Kingdom
having informed the Commission of the provisions adopted to
comply with the directive referred to in the conclusions of the
Commission as regards Wales and Northern Ireland.

_Pleas in law and main arguments_

Since the Commission is in possession of no other information
enabling it to conclude that the United Kingdom has adopted
the necessary provisions, it is compelled to assume that the Infringement of Article 7(1)(b) of Council Regulation
UK has failed to fulfil its obligations under the directive. No 40/94( [2] ): the Court of First Instance applied a new
examination criterion in the contested judgment. The Office
considers that to limit the possibility of refusing a trade mark
application to cases in which general use amongst the class of
( [1] ) OJ L 330, 05.12.1998, p. 32. persons concerned is proved constitutes a legally erroneous
interpretation of Article 7(1)(b). If it were possible to refuse an
application for a trade mark only if that mark, or at all events
signs portrayed in the same way, were shown to be already

C 109/32 EN Official Journal of the European Communities 4.5.2002

customary in business circles, Article 7(1)(b) would be robbed _Pleas in law and main arguments:_
of its central meaning for the purposes of examination of trade
mark applications and, moreover, the examination would

—
overlap with Article 7(1)(d). Errors of law in the determination of, and the regard had
to, the duration of the infringement for which the fine
was imposed: the Court of First Instance erroneously
( [1] ) Not yet published in the European Court Reports.
rejected the contention that the infringement was only
( [2] ) Council Regulation (EC) No 40/94 on the Community trade mark
sporadic, although it is undisputed that, from as early as
(OJ L 11 of 14.1.1994, p. 1).
February 1994 onwards, the appellant has repeatedly
independently fixed its prices for stainless steel flat
products. The defendant and the Court of First Instance
would have been entitled to assume that prices continued
to be influenced by the concerted practices within the
meaning of Article 65 of the ECSC Treaty after the next
time the prices were independently fixed, in March 1994,
**Appeal brought on 28 February 2002 by ThyssenKrupp** only if there had been actual evidence of such continued
**Stainless GmbH (formerly doing business as KruppThys-** influence or of continued practices.
**sen Stainless GmbH) against the judgment delivered on**
**13 December 2001 by the First Chamber of the Court of**
Even if it could not be assumed that the infringement was
**First Instance of the European Communities in Joined**
only sporadic, the Court of First Instance failed to
**Cases T-45/98 and T-47/98 between KruppThyssen Stain-**
recognise that the protracted length of the administrative
**less GmbH and Acciai speciali Terni SpA and the Com-**
procedure worked — unfairly — to the disadvantage of
**mission of the European Communities**
the appellant, since the Commission did not make clear
that it was acting on the presumption of an ongoing
**(Case C-65/02 P)** infringement.

(2002/C 109/55)
— Error of law in so far as the initial fixed sum was taken
into account more than once in the calculation of the
fine: the Court of First Instance wrongly failed to address
An appeal against the judgment delivered on 13 December the applicant’s contention that, when applying the prin2001 by the First Chamber of the Court of First Instance of ciple of fixed-sum fines in respect of the applicant’s legal
the European Communities in Joined Cases T-45/98 and relationships, the Commission was entitled to impose
T-47/98 between KruppThyssen Stainless GmbH and Acciai only a single fine. Instead, the Commission recognised
speciali Terni SpA and the Commission of the European the corporate structure of the group in the non-operative
Communities( [1] ) was brought before the Court of Justice of the part of its decision, but failed to take it into account in
European Communities on 28 February 2002 by Thyssen- the calculation of the fine imposed of the applicant,
Krupp Stainless GmbH, represented by Dr Martin Klusmann, thereby breaching the principle of equal treatment.
Rechtsanwalt, of Freshfields Bruckhaus Deringer, Düsseldorf.

—
Error of law in the appraisal of the applicant’s coThe appellant claims that the Court should: operation in the investigation: finally, the Court of First
Instance erroneously held that the Commission was
(1) partially set aside the judgment of the Court of First entitled to grant those undertakings involved in the
Instance of the European Communities, in so far as it procedure which co-operated in the investigation to
dismisses the action brought against the Commission exactly the same extent as the applicant, but which
Decision 98/247/ECSC of 21 January 1998; additionally admitted that, in legal terms, the facts notified
to the applicant constituted an infringement of Article 65
(2) correct, in so far as it concerns the appellant, the finding ECSC, a specific additional 30 % reduction in the fine in
in Article 1 of Decision 98/247/ECSC regarding the respect of that admission. In addition to the principle of
duration of the infringement; protection of sources which emerges from the Commission’s notice( [2] ), it is an axiomatic principle of the rule
(3) reduce the fine imposed on the appellant in Article 2 of of law that an admission of illegality cannot and must
Decision 98/247/ECSC appropriately, not be rewarded.

or, alternatively in respect of claims (1) and (2),

refer the case back to the Court of First Instance for a
( [1] ) Not yet published in the European Court Reports.
new judgment which complies with the Court’s interpret- ( [2] ) OJ 1996 C 207, p. 4.
ation of the law;

(4) order the Commission to pay the full costs of the
proceedings.