CELEX: C1997/212/61
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 21 May 1997 by Luis Manuel Chaves Fonseca Ferrão against the Office for the Harmonization of the Internal Market (Case T-159/97)

12 . 7 . 97          I EN I                 Official Journal of the European Communities                                    No C 212/31
Action brought on 21 May 1997 by Luis Manuel Chaves                    the President of the Office has failed to observe the basic
Fonseca Ferrao against the Office for the Harmonization                formalities which should precede the adoption of such a
                      of the Internal Market                           measure .
                          ( Case T-159/97 )
                                                                       Lastly, the expediency of the contested decision, to which
                            ( 97/C 212/61
                                                                       the exercise of the powers conferred by Article 119 (2 ) ( a )
                (Language of the case: French)                         of the Regulation is subject, has not been justified as
                                                                       regards the hierarchical subordination of members of the
An action against the Office for the Harmonization of the              Boards of Appeal to the chairmen thereof and of those
Internal Market was brought before the Court of First                  chairmen to the Vice-President for Legal Affairs, with the
Instance of the European Communities on 21 May 1997                    result that the contested decision is vitiated by a failure to
by Luis Manuel Chaves Fonseca Ferrao, residing at                      comply with essential procedural requirements, since it is
Alicante ( Spain ), represented by Roland Assa , of the                not supported by a statement of reasons .
Luxembourg Bar, with an address for service in
Luxembourg at the latter's Chambers, 1 Rue Jean-Pierre                 (') C)J No L 11 , 14 . 1 . 1994, p . 1 .
Brasseur.
The applicant claims that the Court should:
— review, pursuant to Article 179 of the Treaty and
     Article 91 ( 1 ) of the Staff Regulations, the legality of        Action brought on 26 May 1997 by the Netherlands
     Decision ADM-97-3 of 21 February 1997 of the                      Antilles against the Commission of the European
     President of the Office for the Harmonization of the                  Communities and the Council of the European Union
     Internal Market, in particular Article 2 thereof,                                            ( Case T-163/97 )
— declare the said decision, in particular Article 2                                                ( 97/C 212/62 )
     thereof, null and void, inasmuch as it establishes a
     twofold structure of hierarchical subordination                                    (Language of the case: Dutch)
     between the members and chairmen of the Boards of
     Appeal and between those chairmen and the Office's                An action against the Commission of the European
     Vice-President for Legal Affairs,                                 Communities and the Council of the European Union was
                                                                       brought before the Court of First Instance of the European
— order the Office for the Harmonization of the Internal               Communities on 26 May 1997 by the Netherlands
     Market ( trade marks and designs ) to pay the costs .             Antilles, represented by P. V. F. Bos and M. M. Slotboom,
                                                                       of the Rotterdam Bar, with an address for service in
Pleas in law and main arguments adduced in support:                    Luxembourg at the Chambers of Loesch & Wolter, 11
                                                                       Rue Goethe .
The applicant, a member of the First Board of Appeal of
the Office for the Harmonization of the Internal Market                The applicant claims that the Court should:
(trade marks and designs ), contests the abovementioned
decision, maintaining that the hierarchical subordination              — annul Commission Regulation ( EC ) No 764/97 of
of the members of the Boards of Appeal to the Vice­                         23 April 1997 introducing safeguard measures in
President for Legal Affairs, for which Article 2 of the                     respect of imports of rice originating in the overseas
contested decision provides, is incompatible with the                       countries and territories ('),
independent status conferred on them by Article 131 of
Council Regulation ( EC ) No 40/94 of 20 December 1993                 — order the Community to pay fair and reasonable
on the Community trade mark ('the Regulation') ( ] ). That                  compensation, to be determined by the Court, with
structure of subordination between the members and
                                                                            interest thereon from 22 May 1997 until payment is
chairmen of the Boards of Appeal , and between those                        made in full , and
chairmen and the Vice-President for Legal Affairs, affects
the internal institutional equilibrium resulting from the
                                                                       — order the         Commission,          the Council  and/or the
devision of powers between the different decision-making
authorities .                                                               Community, as appropriate, to pay the costs of the
                                                                            case .
Consequently, the contested decision is vitiated by the fact
that it infringes the Regulation, in particular Articles 112           Pleas in law and main arguments adduced in support:
and 131 thereof, the rules adopted for its implementation
and the general principles of law applying in the matter.              Infringement of the Treaty or of specific regulations
                                                                       implementing it and/or breach of general principles of
Furthermore, Article 119 of the Regulation does not                    Community law, in particular:
confer on the President of the Office the power to alter
the status of the members of the Boards of Appeal in a                  1 . misuse of powers: the Commission is using its powers
way which is inconsistent with their independence and                       under Article 109 of the OCT Decision to circumvent
their collegiate status . By adopting the contested decision                implementation of the review procedure in the OCT
without consulting the members of the Board, and by                         Decision ( Article 240 of the OCT Decision, in
allowing only three days for the submission of comments,                    conjunction with Article 136 of the EC Treaty );