CELEX: C1999/281/35
Language: en
Date: 1999-10-02 00:00:00
Title: Case T-155/99: Action brought on 25 June 1999 by Dieckmann & Hansen GmbH against the Commission of the European Communities

2.10.1999              EN                     Official Journal of the European Communities                                        C 281/17
Action brought on 14 June 1999 by the Institute of                       — its obligation to provide a statement of reasons, in that it
Professional Representatives before the European Patent                       does not explain in what respect, going beyond the
Office (EPI) against the Commission of the European                           principle of comparative advertising authorised by Direc-
                           Communities                                        tive 84/450 as amended by Directive 97/55 (1), the
                                                                              implementation of that principle by the EPI was contrary
                                                                              to Community competition law;
                         (Case T-144/99)
                                                                         — the rules of the EC Treaty, in particular Article 81 thereof,
                                                                              and the rules of law concerning its application, by declaring
                         (1999/C 281/34)                                      the articles of the Code of Conduct in issue, as referred to
                                                                              above, to be contrary to Article 81(1), whereas:
                   (Language of the case: French)                             — first, by amending Directive 84/450 in order to include
                                                                                  comparative advertising within its scope, Directive
                                                                                  97/55 expressly provided for the right to prohibit such
An action against the Commission of the European Communi-
                                                                                  advertising in relation to the activities of professional
ties was brought before the Court of First Instance of the
                                                                                  persons; and
European Communities on 14 June 1999 by the Institute of
Professional Representatives before the European Patent Office
(EPI), established in Munich (Federal Republic of Germany),                   — second, the provisions forming the subject-matter of
represented by Robert Collin and Mary-Claude Mitchell, of the                     the contested decision concern professional conduct
Paris Bar, with an address for service in Luxembourg at the                       obligations which pursue an objective in the public
Chambers of Nicolas Decker, 16 Avenue Marie-Thérèse.                              interest, constituting a competition factor in accord-
                                                                                  ance with Article 81(1) which is justified by the nature
                                                                                  of those provisions.
The applicant claims that the Court should:
— partially annul the Commission’s decision of 7 April 1999              In the alternative, the EPI maintains that, by exempting the
     relating to a proceeding pursuant to Article 85 of the              two provisions in issue for a transitional period only, in order
     EC Treaty (now Article 81 EC) (Article 53 of the EEA                to give the applicant institute time to adapt to the situation by
     Agreement) (IV/36.147 EPI Code of Conduct), in so far as            amending its Code of Conduct, when the conditions for
     it concerns Article 2(b)(1) and (3) and Article 5(c) of the         the application of Article 85(3) are already fully met, the
     EPI Code of Conduct;                                                Commission has infringed Article 81(3) of the EC Treaty and
                                                                         Article 8 of Regulation No 17/62.
— order the Commission to pay all the costs and expenses
     incurred as a result of these proceedings.
                                                                         (1) Directive 97/55/EC of European Parliament and of the Council of
                                                                             6 October 1997 amending Directive 84/450/EEC concerning
                                                                             misleading advertising so as to include comparative advertising
Pleas in law and main arguments                                              (OJ L 290 of 23.10.1997, p. 18).
The application contests the decision of the Commission by
which it held that two articles of the Code of Professional
Conduct drawn up by the applicant institute (the EPI), which
was itself set up by the Administrative Council of the European
Patent Organisation (‘the EPO’), are contrary to Article 85 of
the EC Treaty (now Article 81 EC). The provisions in issue are
Article 2(b)(1) and (3), relating to comparative advertising, and
Article 5(c), relating to relations between representatives of           Action brought on 25 June 1999 by Dieckmann &
clients and former representatives of those clients.                     Hansen GmbH against the Commission of the European
                                                                                                   Communities
In the contested decision, the Commission takes the view that
those two provisions restrict the freedom of action of members                                    (Case T-155/99)
of the EPI and are designed to restrict competition between
members of the profession. According to the Commission,
those two provisions, one of which prohibits comparative                                          (1999/C 281/35)
advertising and the other of which is liable to impede the
supply of services to former clients of other representatives,
help to crystallise the clientele of each professional representa-                          (Language of the case: German)
tive within each national market, and thus constitute a
restriction of competition which is unnecessary and significant,
since it concerns all professional representatives on the EPO            An action against the Commission of the European Communi-
list who are members of the EPI.                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 25 June 1999 by Dieckmann
                                                                         & Hansen GmbH, of Hamburg, represented by Professor
In support of its arguments, the applicant maintains that the            Hans-Jürgen Rabe, of the Gaedertz partnership, 35 Avenue de
defendant institution has infringed:                                     Tervuren, Brussels.
 ---pagebreak--- C 281/18               EN                   Official Journal of the European Communities                                        2.10.1999
The applicant claims that the Court should:                                 meeting of the Standing Veterinary Committee of 23 Feb-
                                                                            ruary 1999 that the Commission submitted the final report
— set aside the contested decision;                                         on the inspection visit to Kazakhstan, and moreover it
                                                                            does not appear from the minutes that the Commission
— order the defendant to pay the applicant DEM                              submitted to the Standing Veterinary Committee the
    9 519 974 .00, with interest at 8 % per annum from the                  specific proposal for the contested decision.
    date when the present action was brought;
— declare that the defendant is obliged to compensate the              The liquidated claim for damages essentially concerns an
    applicant for all further damage which may arise;                  advance payment for a delivery of 9 500 kg of caviar which is
                                                                       likely to be irrecoverable, and the loss of profit which could
— order the defendant to pay the costs.
                                                                       have been earned on the processing and sale of that quantity.
                                                                       The final amount of damage cannot yet be completely
                                                                       calculated, however, and so the Community must be held to
Pleas in law and main arguments                                        be liable in principle.
The applicant imports caviar mainly from Kazakhstan in large
units (as a rule 1.8 kg tins), packages it in small portions           (1) Commission Decision of 26 March 1999 amending Decision
and sells these on to its customers inside and outside the                 97/296/EC drawing up the list of third countries from which the
Community.                                                                 import of fishery products is authorised for human consumption
                                                                           (OJ No L 91 of 7.4.1999, p. 37).
                                                                       (2) Commission Decision of 28 January 1999 amending Decision
In accordance with Article 1 of in conjunction with the Annex              97/296/EC drawing up the list of third countries from which the
to the contested Commission decision (1), Kazakhstan was                   import of fishery products is authorised for human consumption
deleted from the list of third countries from which fishery                (OJ No L 44 of 18.2.1999, p. 61).
products may be imported into the Community, so that                   (3) Council Decision of 22 June 1995 on the conditions for drawing
the previously authorised import of caviar was no longer                   up, for an interim period, provisional lists of third country
permitted.                                                                 establishments from which Member States are authorised to
                                                                           import certain products of animal origin, fishery products or live
                                                                           bivalve mulluscs (OJ No L 243 of 11.10.1995, p. 17).
In the period November/December 1998 three veterinary
inspectors instructed by the Commission carried out an
investigative mission for examining conditions in Kazakhstan
with respect to imports of horsemeat and of fist products
other than caviar. Although caviar was not even a subject
of investigation, the inspectors nevertheless proposed that
Kazakhstan should be deleted from the list of authorised
countries of import with respect also to imports of caviar. In
the fourth recital in the preamble to the contested decision the
Commission then indeed gave as reasons for the deletion of
Kazakhstan the serious deficiencies found during the inspec-           Action brought on 2 July 1999 by Helga Griesel against
tion visit.                                                                          the Council of the European Union
As a result of the contested decision, it was no longer possible                                (Case T-157/99)
for the applicant to import into the Community the fresh
caviar for which it had concluded a supply contract shortly
before the adoption of the contested decision, and it has                                       (1999/C 281/36)
thereby incurred substantial damage.
                                                                                           (Language of the case: French)
In the applicant’s view, the contested decision infringes
— the principle of sound administration, because it incor-             An action against the Council of the European Union was
    rectly assesses the facts on which it is based and draws           brought before the Court of First Instance of the European
    implausible conclusions from them, and                             Communities on 2 July 1999 by Helga Griesel, residing in
                                                                       Brussels, represented by Jacques Sambon and Pierre-Paul van
— the principle of the protection of legitimate expectations,          Gehuchten, of the Brussels Bar, with an address for service at
    since the Commission, after the inspection visit to Kazakh-        the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.
    stan by the veterinary inspectors, in Decision 99/136/EC (2)
    still left Kazakhstan on the list of authorised countries of
    import for caviar and then by the contested decision
                                                                       The applicant claims that the Court should:
    suddenly and without warning deleted Kazakhstan from
    the list, and also breaches
                                                                       — annul the defendant’s decision not to promote her to grade
— essential procedural requirements, since — in breach of                   C 4 in the 1998 promotions procedure;
    Decision 95/408/EC (3) on which the contested decision is
    based — it does not appear from the minutes of the                 — order the defendant to pay all of the costs.