CELEX: C1997/252/72
Language: en
Date: 1997-08-16 00:00:00
Title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 19 June 1997 in Case T-159/97 R: Luis Manuel Chaves Fonseca Ferrão v. Office for Harmonization in the Internal Market (trade marks and designs) (Office for Harmonization in the Internal Market (trade marks and designs) - Decision of the President of the Office relating to the organization of Boards of Appeal - Periculum in mora - None)

No C 252/32           EN                 Official Journal of the European Communities                                    16 . 8 . 97
     ORDER OF THE COURT OF FIRST INSTANCE                                ORDER OF THE COURT OF FIRST INSTANCE
          (Fifth Chamber, Extended Composition )                                             of 9 June 1997
                                                                    in Case T-9/97: Elf Atochem SA v. Commission of the
                         of 3 June 1997
                                                                                       European Communities (')
in Case T-60/96: Merck & Co. Inc. and Others, v.                    (Competition        —       Administrative   procedure        —
        Commission of the European Communities (')                  Investigations — Drawing-up of reports following an
(Free Movement of goods — Transitional measures — Act               investigation — Actions for annulment of measures —
of accession — Protective measures — Pharmaceutical                             Actionable measures — Inadmissibility)
    products — Action for annulment — Inadmissibility)                                       ( 97/C 252/71 )
                         ( 97/C 252/70 )
                                                                                     (Language of the case: French)
                (Language of the case: English)                     In Case T-9/97: Elf Atochem SA, established at Puteaux
                                                                    ( France ), represented by Xavier de Roux, of the Paris Bar,
                                                                    with an address for service in Luxembourg at the
                                                                    Chambers of Jacques Loesch, 11 Rue Goethe, v.
In Case , T-60/96 : Merck & Co. Inc., established at                Commission of the European Communities ( Agent:
Whitehouse Station, New Jersey (United States of                    Wouter Wils ) — application for annulment of the reports
America ), NV Organon, established at Oss (Netherlands ),           and annexes thereto drawn up by the Commission on 18 ,
Glaxo Wellcome pic, established at Greenford (United                19 and 20 November 1996 following an investigation
Kingdom ), represented by Romano Subiotto, Solicitor, and           carried out pursuant to Article 14 (2 ) of Council
Mario Siragusa, of the Rome Bar, with an address for                Regulation No 17, First regulation implementing
service in Luxembourg at the Chambers of Elvinger &                 Articles 85 and 86 of the Treaty, of 6 February 1962 ( OJ,
Hoss, 15 Cote d'Eich, against Commission of the                     English Special Edition 1959-1962, p. 87) at the
European Communities ( Agents : Richard Wainwright and              applicant's registered office in the context of an inquiry
Fernando Castillo de la Torre ) — application for                   concerning the existence of certain agreements or
annulment of Commission Decisions C(95)3316 final/1 ,               concerted practices contrary to Article 85 ( 1 ) of the Treaty
C(95)3316 final/2 and C(95)3316 def./2, K(95)3316                   in the olefins and polyolefins sector ( Case No IV/E-2/
endg./3 , K(95)3316 endg./4, K(95)3316 endelig. udg./5 ,            35.765 ) — the Court of First Instance ( First Chamber),
C(95)3316 final/6 and C(95)3316 final/7 of 20 December              composed of: A. Saggio, President; V. Tiili and R. M.
1995 refusing the authorization sought, respectively, by            Moura-Ramos, Judges; H. Jung, Registrar, made an order
France, Belgium, Germany, Austria, Denmark, Ireland and             on 9 June 1997, the operative part of which is as follows:
the United Kingdom to take protective measures with
regard to pharmaceutical products coming from Spain —
the Court of First Instance ( Fifth Chamber, Extended               1 . The application is dismissed as inadmissible.
Composition), composed of R. García-Valdecasas,
President, and V. Tiili, J. Azizi, R. M. Moura Ramos and            2 . The applicant is ordered to pay all the costs.
M. Jaeger, Judges; H. Jung, Registrar, made an order on
3 June 1997, the operative part of which is as follows :            o OJ No C 74, 8 . 3 . 1997.
1 . The application is dismissed as inadmissible.
                                                                                    ORDER OF THE PRESIDENT
2 . The applicants are ordered jointly and severally to pay                    OF THE COURT OF FIRST INSTANCE
     the costs.
                                                                                            of 19 June 1997
                                                                    in Case T-159/97 R: Luis Manuel Chaves Fonseca Ferrão
3 . The applications to intervene need not be considered.           v. Office for Harmonization in the Internal Market (trade
                                                                                           marks and designs )
                                                                     (Office for Harmonization in the Internal Market (trade
4 . The Bundesverband der Arzneimittel-Importeure e.V. ,            marks and designs) — Decision of the President of the
     the Asociación de Exportadores Españoles de                     Office relating to the organization of Boards of Appeal —
     Productos Farmacéuticos and the Vereniging Euro                                  Periculum in mora — None )
     Specialités are to bear their own costs.                                                 ( 97/C 252/72 )
(') OJ No C 197, 6 . 7. 1996 .                                                       (Language of the case: French)
                                                                    In Case T-159/97: Luis Manuel Chaves Fonseca Ferrão, a
                                                                    member of the First Board of Appeal of the Office for the
 ---pagebreak---  16 . 8 . 97           EN                 Official Journal of the European Communities                                No C 252/33
Harmonization of the Internal Market (trade marks and                1 . Infringement of Article 190 of EC Treaty
designs ), resident in Campello, Alicante ( Spain ),
represented by Roland Assa, of the Luxembourg Bar, with
an address for service in Luxembourg at the latter's                     The applicant claims that the Council has not fulfilled
Chambers, 1 Rue Jean-Pierre Brasseur, against Office for                 its obligations under Article 190 as interpreted by the
the Harmonization of the Internal Market (trade marks                    case-law of the Court of First Instance and the Court
and designs ) (Agents: Oreste Montalto and Joao Paulo                    of Justice since, in the statement of reasons of
Miranda de Sousa ) — application for suspension of the                   the contested regulation, particularly where it deals
operation of Decision ADM-97-3 of 21 February 1997 of                    with the issue of injury, it gives an unclear and
the President of the Office for the Harmonization of the                 contradictory exposition of the facts on the basis
Internal Market relating to the organization of the Boards               of which it established the applicant's average
of Appeal — the President of the Court of First Instance                 underselling margin ( 17% ), the percentage which was
made an order on 19 June 1997, the operative part of                     used precisely to set the rate of duty applicable to it.
which is as follows :
                                                                     2 . Infringement of the essential procedural requirement
1 . The application for interim measures is dismissed.                   set out in Article 20 (4 ) of the basic anti-dumping
                                                                         regulation
2.    The costs are reserved.
                                                                         The applicant claims that there have been two
                                                                         infringements of Article 20 (4 ): the first consists of
                                                                         improper notification of the disclosure laid down by
                                                                         that article and the second lies in the content of the
                                                                         disclosure document:
Action brought on 5 June 1997 by Swedish Match
Philippines, Inc. against the Council of the European                    — the applicant states, as far as the first point is
                               Union                                         concerned, that the Commission did not send the
                        ( Case T-171 /97
                                                                             disclosure document to its representative in the
                                                                             anti-dumping proceeding, thereby preventing it
                          ( 97/C 252/73 )                                    from responding through its representative to the
                                                                             content of that document within the time limit set
                                                                             by the Commission. It considers, therefore, that
                 (Language of the case: English)                             this constituted a breach of its right to a fair
                                                                             hearing, implicitly enshrined in Article 20 ( 4 ),
An action against the Council of the European Union was
brought before the Court of First Instance of the European               — with regard to the second question, the applicant
Communities on 5 June 1997 by Swedish Match                                  argues that no trace of how the injury margin was
Philippines Inc ., represented by Angel Adell de Bernando                    assessed by the Commission can be found in the
and Francisco Miguel Rodero Lopez, with an address for                       disclosure document. Accordingly, it cannot tell on
service in Luxembourg at the Chambers Dupong &                               the basis of which date the underselling margin
Associes, 14a Rue des Bains, Luxembourg.                                     found in regard to it was calculated and therefore
                                                                             is unable to defend itself on the substance of the
                                                                             injury findings. It adds that, in its regulation, the
The applicant claims that the Court should:                                  Council increased the rate proposed by the
                                                                             Commission without giving any explanation of its
                                                                             decision to do so, which also constitutes an
— declare that Article 2 ( 2 ) ( b ) of Council Regulation
                                                                             infringement of the abovementioned article .
      ( EC ) No 423/97 of 3 March 1997 is void in so far as
      it affects Swedish Match Philippines, Inc., the
      condition 'in so far as it affects' being interpreted as
                                                                     3 . Infringement of Articles 1 ( 1 ), 3 ( 2 ) and 3 ( 6 ) of the
      comprising the suspension for the applicant of the                 basic anti-dumping regulation
      application of the residual duty set out in such article
      concerning imports of disposable flint lighters from
      the Philippines,                                                   The applicant maintains, on the one hand, that the
                                                                         exports which it made during the investigation period
— order the defendant to pay the costs.                                  to the Community market could not have given rise to
                                                                         any injury to the Community industry, since extremely
                                                                         limited quantities were exported and, on the other
Pleas in law and main arguments adduced in support:                      hand, there is no causal link between its exports and
                                                                         the injury caused to the Community industry by
                                                                         imports made by other exporters .
The applicant submits that the contested regulation is void
in so far as it affects Swedish Match Philippines, Inc. on
the following grounds: