CELEX: C1996/318/40
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 9 September 1996 by Valio Ltd against the Commission of the European Communities (Case T-137/96)

No C 318/22          EN                  Official Journal of the European Communities                                   26 . 10 . 96
and of the principles of subsidiarity and proportionality           In the applicant's opinion, that explanation does not
referred to in the 12th recital in the preamble to the              disclose the considerations of fact and law on which the
contested Directive . The applicant further claims that the         Commission based its decision . Specifically, the
principle patere legem quam ipse fecisti has been infringed,        Commission failed to consider the significance of the fact
in that the Commission itself, in its communication of              that the information it decided to divulge constituted
14 December 1993 concerning the application of the                  ' business secrets '.
Protocol on social policy, recognized the applicant as a
representative organization .
                                                                    Action brought on 9 September 1996 by Valio Ltd against
Action brought on 6 September 1996 by Automobiles                          the Commission of the European Communities
Peugeot SA against the Commission of the European
                         Communities                                                       ( Case T-l 37/96
                      ( Case T-136/96 )                                                      ( 96/C 318/40 )
                        ( 96/C 318/39
                                                                                   (Language of the case: English)
               (Language of the case: French)
                                                                    An action against the Commission of the European
An action against the Commission of the European                    Communities was brought before the Court of First
Communities was brought before the Court of First                   Instance of the European Communities on 9 September
Instance of the European Communities on 6 September                 1996 by Valio Ltd , represented by Francis Herbert and
1996 by Automobiles Peugeot SA, established at Paris,               Daniel M. Tomasevic , of the Brussels Bar, of Loeff Claesy
represented by Xavier de Roux, of the Paris Bar, with an            Verbeke with an adress for service in Luxembourg at the
address for service in Luxembourg at the Chambers of                Chambers of Carlos Zeyen , 67 rue Ermesinde, L-1050
Jacques Loesch, 1 1 rue Goethe .                                    Luxembourg .
The applicant claims that the Court should :                        The applicant claims that the Court should :
— annul the Commission's decision of 19 July 1996
    concerning complaints 35.988 , 35.989 , 35.990 and              — annul the decision contained in a letter adressed by the
    35.991 ,                                                             Commission to the Finnish Permanent Representative to
                                                                        the European Unions ( BI.4 D(96 ) SP/cd/501 ) in so far as
— order the Commission to pay the costs .                               it concerns the 'Voilevi ' and 'Voimariini ' trade marks;
Pleas in law and main arguments adduced in support                  — alternatively, if the Court finds that the Decision does
                                                                        not infringe Regulation ( EC ) No 2991 /94 , declare,
The applicant, a company which markets Peugeot vehicles                 upholding the applicant's plea of illegality , that
in Europe, challenges the decision taken by the Commission,             Regulation ( EC ) No 2991 /94 is inapplicable to the
as part of the investigation of four complaints questioning             applicant to the extent that it would prohibit the further
the conformity with Community competition rules of the                  use of its trademarks 'Voimariini ' and 'Voilevi ' for the
standard exclusive distribution agreement for those                     spreadable fats concerned,
vehicles , to communicate to the companies which had
submitted the complaints certain information obtained               — order the Commission to pay the costs .
from the applicant.
That decision was taken in spite of the applicant's                 Pleas in law and main arguments adduced in support
indications that most of the information was subject to
protection as business secrets, in that it set out the              Valio is a Finnish company in the food sector which
conditions of membership of the Peugeot network and                 manufactures and markets products which are fat mixtures
described the functioning of that network .                         used as spreads, all of which are traded on the Finnish
                                                                    market under the 'Voimariini ' and 'Voilevi ' trade marks
The applicant claims that the case-law as stated in the             registered by Valio in 1980 and 1979 , and which have been
judgment in Case 53/85 AKZO Chemie v. Commission                    used by Valio since then . 'Voi ' in Finnish means butter . The
1986 [ECR ] 1965 has not been observed . It submits that            trade marks 'Voimariini ' and 'Voilevi ' do not have any
while the Commission is the sole judge of the confidentiality       specific meaning.
of the documents supplied to it in an investigation, the
corollary of such a discretion is a strict obligation to state      Under Regulation ( EC ) No 2991 /94 , which sets standards
reasons . According to the applicant, the contested decision        for spreadable fats, 'Voimariini ' is to be labelled under the
is not supported by an adequate statement of reasons . The          sales description ' blend ' while 'Voilevi ' is to be labelled
only explanation given by the Commission does no more               under the sales description ' half-fat blend '.
than assert the need to communicate the information in
question in order to be able to assess what action to take on       By letter dated 21 June 1996 addressed to the Finnish
the complaints, in full knowledge of the facts , after              Representation to the European Union , the Commission
obtaining the observations of those concerned .                     stated that the exclusive use of the sales description ' butter',
 ---pagebreak--- 26 . 10 . 96           EN                   Official Journal of the European Communities                                 No C 318 /23
to be found in Article 2 ( 2 ) of the Regulation, applied to               In support of the application it is contended that the
trade marks containing the word ' butter'. Consequently, the               allegedly confusing syllables 'Voi ' in the trade marks do
Commission         informed         the   Finnish     Permanent            not establish any reference or connection whatsoever
Representation that the trade marks 'Voimariini ' and                      with butter outside the Member State where the said
'Voilevi ' may no longer be used , nothwithstanding their                  products have, until now, exclusively been sold, namely
registration long before the Regulation entered into force on              Finland .
1 January 1996 .
                                                                       Furthermore, in Finland the trade marks have been used for
— Annulment of the Commission Decision                                 such a long time, with all necessary and relevant
                                                                       clarifications as to the exact nature of the product, that there
                                                                       is no risk of confusion .
    The applicant claims that the Decision should be
    annulled on the following grounds :
    — there is an infringement of essential procedural
         requirements, in that the Decision was taken
         unilaterally without Valio being given any right to be
         heard in order to make its view known to the                  Action brought on 6 September 1996 by Giovanni Ballone
         Commission ,                                                  Burini against the Court of Justice of the European
                                                                                                  Communities
    — the Decision is based on an erroneous interpretation                                      Case T-138/96 )
         of the Regulation in that the Regulation does not                                       ( 96/C 318 /41 )
         apply to trade marks, which are to be distinguished
         from sales descriptions,
                                                                                       (Language of the case: Italian)
    — Valio 's trade marks should be entitled to derogations
         under Article 2 ( 2 ) of the Regulation, which relates to     An action against the Court of Justice of the European
         products the exact nature of which is clear from the          Communities was brought before the Court of First
         traditional user,                                             Instance of the European Communities on 6 September
                                                                       1996 by Giovanni Ballone Burini , represented by Giancarlo
    — the Decision is also obviously disproportionate .                Piersimoni, of the Ancona Bar, Italy, with an address for
                                                                       service in Luxembourg at the address of Marco Pantanetti ,
— Plea of illegality                                                   17 rue de Dudelange, Kayl .
    Alternatively, if the Court of First Instance finds that the       The applicant claims that the Court should :
    Decision is compatible with Regulation ( EC )
    No 2991 /94, Valio wishes to invoke the plea of illegality         — declare unlawful and therefore annul the decision of
    provided for in Article 184 of the EC Treaty on the                    18 July 1996 of the Selection Board rejecting his
    following grounds :                                                    application to take part in General Competition No
                                                                           CJ/A/ 11 at the Court of Justice of the European
    — the Regulation should have been based on                             Communities ,
         Article 100a or Article 235 of the Treaty and not ( or
         at least not exclusively ) on Article 43 ,                    — order the defendant to pay all the costs of the
                                                                           proceedings .
    — the Regulation infringes the principle of legal
         certainty by broadening, to an extent that is unclear,
         the definition of ' sales description ', which is clearly     Pleas in law and main arguments adduced in support
         set out in Directive 79/ 112/EC relating to the
         labelling of foodstuffs ,                                     The applicant challenges the decision of the Selection Board
                                                                       not to admit him to General Competition No CJ/A/ 1 1
    — the Regulation, which imposes an a priori ban on the             ( administrators with Italian legal training ) on the following
         use of certain trade marks, discriminates against             ground : 'the candidate does not satisfy the language
         holders of trade marks for spreadable fats in                 requirement provided for at paragraph 3B ( 2 ) of the notice
         comparison with holders of trade marks for other              of competition which states that, in the interests of the
         foodstuffs covered by Directive 79/ 112/EC which              service, good knowledge of French is required .' The
         imposes no a priori ban but requires that all the             candidate indicated in his application form that his
         circumstances under which a specific product is sold          knowledge of French was only ' average'. According to the
         are to be taken into account,                                 Selection Board , fulfilment of that requirement should have
                                                                       been declared when submitting the application , that is by
    — the Regulation also infringes the rule of                        28 September 1995 .
         proportionality, given that the provisions of
         Directive 79/ 112/EC relating to misleading                   The applicant seeks the annulment of the abovementioned
         statements show that it is possible to achieve the            decision on the grounds of misuse of powers, its illogical and
         same aim of consumer protection without                       irrational nature, lack of a statement of reasons, mistaken
         necessarily having recourse to an overall ban on the          assumptions and distortion of facts . The application is
         further use of certain trade marks .                          based on the following grounds :