CELEX: C2002/031/29
Language: en
Date: 2002-02-02 00:00:00
Title: Case T-287/01: Action brought on 20 November 2001 by Bioelettrica S.p.A. against the Commission of the European Communities

2.2.2002               EN                      Official Journal of the European Communities                                        C 31/15
In support of his claim, the applicant argues that the contested          —     order the Commission to pay to the applicant any amount
decision infringes the principle of equal treatment and thus                    which the Court may deem appropriate by way of
also Article 19 of the Conditions of Employment. The                            compensation for the damage which the applicant has
applicant maintains that, by comparison with the group of                       suffered;
employees entitled to expatriation allowance under Article 17
of the Conditions of Employment, he is being discriminated                —     order the Commission to pay the costs.
against, and that that discrimination is not justified.
The applicant argues that the position is not affected by the             Pleas in law and main arguments
fact that Article 19 of the Conditions of Employment is only a
‘temporary solution’ pending the establishment of a European
School in the Frankfurt am Main area. In this phase also, he              The present application seeks a declaration that, by terminating
maintains, he cannot be treated differently from the employees            the Thermie contract, signed on 22 December 1994 bearing
entitled to expatriation allowance.                                       number BM 1007/1994 IT/DE/UL/PO, for the construction of
                                                                          a thermal power station in Italy, fuelled by plant-based biomass
                                                                          based on a fluidised bed air gasifier on a combined cycle, the
                                                                          Commission acted unlawfully. 40 % of the cost of the contract
The applicant finds it incomprehensible that the education                was originally financed by Community contributions. The
allowance is linked to the existence of a right to expatriation           applicant company, which was coordinating the project,
allowance under Article 17 of the Conditions of Employment.               consisted of five of the seven original parties to the contract in
He argues that the purpose of the education allowance is to               question.
enable all-day schooling to take place, and that it is designed
not to benefit the employee but to support the dependent
child by making a contribution to its maintenance costs.                  The decision to terminate was adopted after a number of
                                                                          problems regarding performance of the contract, in particular
                                                                          with regard to the failure of Lurgi Energie, one of the
                                                                          contractors, to contribute technological support which led the
                                                                          defendant to the conclusion that it would be impossible to
                                                                          complete the programme of work of the project within the
                                                                          agreed time limit.
                                                                          In support of its application the applicant puts forward the
Action brought on 20 November 2001 by Bioelettrica                        following pleas in law:
S.p.A. against the Commission of the European Communi-
                                ties
                                                                          —     failure to give one month’s notice by registered letter;
                        (Case T-287/01)                                   —     failure to notify the termination to all the Contractors;
                                                                          —     infringement of Clause 8(8).2(f) of Annex II to the General
                          (2002/C 31/29)                                        Terms and Conditions of the Contract, inasmuch as that
                                                                                provision provides for the Commission to be able to
                                                                                terminate the contract where the other contracting party
                   (Language of the case: Italian)                              has not commenced work by the date laid down in the
                                                                                contract, bearing in mind that the contract was entered
                                                                                into in December 1994 and that Clause 2.1 of the
                                                                                Contract lays down 1 January 1995 as the date for the
                                                                                commencement of work. According to the applicant, it is
An action against the Commission of the European Communi-                       unbelievable that the Commission should have taken six
ties was brought before the Court of First Instance of the                      years to complain about the failure to commence work;
European Communities on 20 November 2001 by Bioelettrica
S.p.A., represented by Ombretta Fabe Dal Negro,                           —     breach of the general principle of legal certainty with
                                                                                regard to legal relationships with a contractor who may
                                                                                not under any circumstances be subject to unforeseeable
The applicant claims that the Court should:                                     or unspecified consequences either as regards the con-
                                                                                ditions which the parties have imposed on themselves or,
                                                                                even less, the applicable legislation. The applicant points
—     find that, by terminating by letter of 6 September
                                                                                out that this is particularly the case inasmuch as the
      2001 the Thermie contract of 12 December 1994 with
                                                                                unforeseen effect arises from the exercise of an arbitrary
      Bioelettrica S.p.A., the Commission has acted unlawfully,
                                                                                power, which is not provided for either under the law or
      and consequently
                                                                                under the contract, to extinguish the existing contractual
                                                                                relationship by withdrawing on the basis of an improper
—     declare the contract valid and effective; and                             and moreover unfounded ground;
 ---pagebreak--- C 31/16                EN                     Official Journal of the European Communities                                         2.2.2002
—     failure by the Commission to take into account the fact            —     to order the OHIM to register the trademark ‘Nicole’ for
      that the applicant has fulfilled its obligations under the               goods of class 3 including essential oils, cosmetics, hair
      contract, whereas Clause 2(c) of the General Terms and                   lotions, dentifrices and nail polish.
      Conditions of the Contract expressly provides that a
      contractor is not to be liable for a contractor which does
      not fulfil its obligations if it can show that it has not          Pleas in law and main arguments
      contributed to such failure to fulfil obligations. In that
      regard, the defendant had overrated the obligations
      attaching to the project coordinator;                              Applicant for the Com-         OPI Products Inc.
                                                                         munity trade mark:
—     the defendant disregarded in the present case the duties           The Community trade            The verbal mark ‘Nicole’ for goods
      enshrined in Article 1375 of the Italian Civil Code so far         mark concerned:                in class 3.
      as concerns the principle of good faith and the protection
      of legitimate expectations.                                        Proprietor of the right to     Maxim Marken-Produkte GmbH
                                                                         the trade mark or sign         & Co. KG.
                                                                         asserted by way of oppo-
More generally, the applicant states that the object of the              sition in the opposition
contract in question is not for the supply of a piece of                 proceedings:
equipment or merely white goods, but of a thermal power
station whose technological characteristics should have proved           Trade mark or sign             The national verbal mark ‘Nicole’
to be something new and truly innovative. The applicant                  asserted by way of oppo-       for certain goods in class 3
therefore claims that the Commission’s conduct in the per-               sition in the opposition
formance of the contract should have been quite different to             proceedings:
that adopted, since the defendant was not in actual fact a party
to a synallagmatic contract, but a partner in the full sense of          Decision of the Oppo-          Partial rejection of the Oppo-
the word, sharing the contracting parties’ interest in developing        sition Division:               sition.
technology within the Member States.
                                                                         Decision of the Board of       Annulment of the Decision of the
                                                                         Appeal:                        Opposition Division for ‘dentrific-
                                                                                                        es’ in class 3 and dismissal of the
                                                                                                        further appeal by OPI Products
                                                                                                        Inc.
                                                                         Grounds of claim:              Violation of Article 43(2) of
Action brought on 23 November 2001 by OPI Products                                                      Council Regulation 40/94 in that
Inc. against the Office for Harmonisation in the Internal                                               the proof of the use of the mark
                              Market                                                                    asserted by way of opposition was
                                                                                                        insufficient. The applicant further
                                                                                                        claims a violation of article 8(1)b
                         (Case T-288/01)                                                                of Council Regulation 40/94 since
                                                                                                        there is no likelihood of confusion
                                                                                                        or similarity of goods.
                          (2002/C 31/30)
                   (Language of the case: English)
                                                                                Removal from the Register of Case T-108/00 (1)
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 23 November 2001 by OPI                                                    (2002/C 31/31)
Products Inc., represented by Mr Emmanuel Cornu and Mr Eric
De Gryse of Braun Bigwood SCRL, Brussels (Belgium).                                         (Language of the case: French)
A further party to the proceedings before the Board of Appeal
                                                                         By order of 12 September 2001, the President of the Third
was Maxim Marken-Produkte GmbH & Co. KG.
                                                                         Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the Register of
The applicant claims that the Court should:                              Case T-108/00: Santiago Gómez-Reino v Commission of the
                                                                         European Communities.
—     annul the decision of the third Board of Appeal in so far
      as it denies registration of the contested CTM application         (1) OJ C 176 of 24.6.2000.
      No 737 510 for the word mark ‘Nicole’ for ‘essential oils,
      cosmetics, hair lotions; including nail polish’ in class 3;