Source: EURLEX
Language: en
Format: md

C 3/38 EN Official Journal of the European Communities 5.1.2002

_Pleas in law and main arguments_ The applicant claims that the Court should:

The applicants are both Chinese producers of electronic

—
compact fluorescent lamps (CFL-i) and export those lamps to amend the decision of the second Board of Appeal of the
the European Community. Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 31 July 2001 concerning appeal
No R 789/1999-2 so that it states that there are no
grounds under Article 8(1)(b) of the Regulation on the
On 17 May 2000, the Commission initiated an anti-dumping
Community trade mark for refusing to register the
proceeding concerning imports of CFL-i originating in China,
Community trade mark AIR MARITIME under appliafter the lodging by the European Lighting Companies Federation of a complaint. During the anti-dumping investigation. cation No 81.331;
Mexico was used, pursuant to Article 2(7)(a) of the Basic
Regulation, as the analogue market economy country for the
purposes of determining the normal value of exports from —
China. in the alternative, annul the decision of the second Board
of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 31 July 2001
concerning appeal No R 789/1999-2 and order the Office
The applicants co-operated during the investigation and were
for Harmonisation in the Internal Market to continue the
granted individual treatment The dumping margins were
registration procedure relating to the Community trade
therefore determined using the normal value of the export
mark AIR MARITIME under registration No 81.331
prices of Philips Mexicana, a subsidiary of one of the primary
without regard to the opposing trade mark, i.e. the
complainants, as well as the normal value of the applicants’
German Trade Mark Wz 1.186.278 ‘air marin’, and
export prices.

In support of their claims, the applicants submit that, by —
order the defendant to pay the costs of these proceedings.
adopting the Commission’s findings, the Council infringed the
basic anti-dumping Regulation, in that the Commission should
have used Article 2(7)(b) and not 2(7)(a) of that Regulation.
Alternatively, the applicants argue that the normal value
determined under Article 2(7)(a) was manifestly unreasonable
and discriminatory.

_Pleas in law and main arguments_

Applicant for the Com- The applicant
munity trade mark:
**Action brought on 8 October 2001 by Frosch Touristik**
**GmbH against the Office for Harmonisation in the**
**Internal Market (Trade Marks and Designs)**
Community trade mark The word mark ‘AIR MARITIME’
applied for: for goods and services in Class 16,
**(Case T-257/01)** 39 and 42 — Application
No 81.331

(2002/C 3/66)

Proprietor of the oppos- Air Marin Flugreisen GmbH
_(Language of the case: to be determined in accordance with_ ing right to a trade mark
_Article 131(2) of the Rules of Procedure. Language in which the_ or sign:
_application was drafted: German)_

Opposing right to trade The German word mark ‘air marmark or sign: in’ for services in Class 39
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 8 October 2001 by Frosch Tour- Decision of the Oppo- Rejection of the application for
istik GmbH, Munich, represented by Hans Georg Zeiner and sition Division: the services ‘travel agency;
Brigitte Heamann-Dunn, lawyers, with an address for service arrangement and organisation of
in Luxembourg, the other party before the Board of Appeal travel; transport of persons’ in
being Air Marin Flugreisen GmbH, Bonn (Germany). Class 39

5.1.2002 EN Official Journal of the European Communities C 3/39

Decision of the Board of Dismissal of the appeal respect to other economic and non-economic injuries arising
Appeal: therefrom. The payment of these customs duties and VAT has
allegedly been avoided by smuggling cigarettes into the
Grounds for bringing No likelihood of confusion within European Union. This is the second time that the European
the action: the meaning of Article 8(1)(b) of Community has commenced such proceedings( [1] ). In the
Council Regulation (EC) 40/94 current proceedings, the Commission is also acting as agent
of 20 December 1993 on the for Member States for the recovery of these taxes allegedly
Community trade mark ( [1] ) owed to them.

( [1] ) OJ 1994 L 11, p. 1.
The applicants submit that the Community has no competence
to commence these proceedings. According to the applicants,
neither the EC Treaty nor any other act confers on the
European Commission the competence to act as a legal person,
especially not outside the jurisdiction of the Member States, in
order independently to protect its financial interests in this
way outside the Community or to combat fraud in this way;
nor is the action in question a joint action by the Commission
**Action brought on 15 October 2001 by R.J. Reynolds**
and the Member States, since not all Member States are
**Tobacco Holdings, Inc, R.J. Reynolds Tobacco Inter-**
involved in the proceedings.
**national, Inc, R.J. Reynolds Tobacco Company and RJR**
**Acquisition Corp. against the Commission of the Euro-**
**pean Communities**

The current proceedings also constitute, according to the
**(Case T-260/01)**
applicants, an attempt to recover the allegedly unpaid taxes.
The applicants submit that the European Commission has no
(2002/C 3/67) competence to collect taxes. This competence lies solely with
the Member States within their respective territories. According
to the applicants, the Commission should therefore commence
_(Language of the case: English)_
actions against the Member States for failing properly to apply
the Communities’ rules on customs duties and VAT.

An action against the Commission of the European Communities was brought before the Court of First Instance of the
The applicants also submit that the Community is not
European Communities on 15 October 2001 by R.J. Reynolds
competent to act as agent for the Member States in the
Tobacco Holdings, Inc, R.J. Reynolds Tobacco International,
proceedings.
Inc, R.J. Reynolds Tobacco Company and RJR Acquisition
Corp., represented by Mr Paul Lomas and Mr Onno Brouwer
of Freshfields Bruckhaus Deringer, London (United Kingdom).

According to the applicants, the Commission has also failed to
The applicants claim that the Court should: follow the proper procedure leading up to the decision to
commence these proceedings. The Commission should have
— followed the procedure set out in Article 280 (4) and 251 EC
annul the Commission’s decision, which became known
Treaty to adopt measures combatting fraud. Furthermore, the
to the applicant on 6 August 2001, to commence the
Commission has not respected the applicants right to be heard
second US proceedings;
and their right to be provided with reasons. Moreover, the
applicants contend that the Commission violated the principle

—
order that the Commission pay the costs of the present of legal certainty, the rights of defence and due process,
proceedings, including those of the applicants and the principle of proportionality and the principle of sound
intervening parties. administration. Finally, the Applicants contend that the Commission misused its powers.

_Pleas in law and main arguments_
( [1] ) The decision to commence the first proceedings is being contested
by the applicants in Case T-379/00 (JO C 79 of 10.3.2001, p. 24).
The applicants are the defendants in legal proceedings brought
by the European Community before a United States Court, in
which the Community is seeking damages in respect of
allegedly unpaid customs duties and VAT, and relief in