CELEX: C2003/055/90
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-402/02: Action brought on 27 December 2002 by August Storck KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 55/36               EN                         Official Journal of the European Union                                           8.3.2003
After finding an error in the wording of multiple-choice                 Pleas in law:                  —     Infringement               of
question number 35 of test (b), the jury decided to cancel that                                               Article 7(1)(b) of Regulation
question.                                                                                                     (EC) No 40/94 (1);
                                                                                                        —     Infringement of Article 7(3)
In support of her claims, the applicant alleges a manifest error                                              of Regulation (EC) No 40/
of assessment in the marking of questions number 21 in test                                                   94.
(a) and number 9 in test (c). She also alleges misuse of powers
in the present case.
                                                                         (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                              Community trade mark (OJ 1993 L 11, p. 1).
Action brought on 27 December 2002 by August Storck
KG against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)                           Action brought on 27 December 2002 by August Storck
                                                                         KG against the Office for Harmonisation in the Internal
                        (Case T-396/02)                                                Market (Trade Marks and Designs)
                         (2003/C 55/89)                                                            (Case T-402/02)
                  (Language of the case: German)                                                    (2003/C 55/90)
                                                                                            (Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 December 2002 by August Storck KG, Berlin, represented                An action against the Office for Harmonisation in the Internal
by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-              Market (Trade Marks and Designs) was brought before the
te, with an address for service in Luxembourg.                           Court of First Instance of the European Communities on
                                                                         27 December 2002 by August Storck KG, Berlin, represented
                                                                         by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-
The applicant claims that the Court should:                              te, with an address for service in Luxembourg.
—     set aside the decision of the Fourth Board of Appeal of
      the Office for Harmonisation in the Internal Market of             The applicant claims that the Court should:
      14 October 2002 in Case R 187/2001-4;
                                                                         —     set aside the decision of the Second Board of Appeal of
—     order the Office to pay the costs.                                       the Office for Harmonisation in the Internal Market of
                                                                               18 October 2002 in Case R 256/2001-2;
                                                                         —     order the Office to pay the costs.
Pleas in law and main arguments
Trade mark for which          A three-dimensional mark in the
Community registration        form of a caramel sweet of a               Pleas in law and main arguments
sought:                       light brown colour — Application
                              No 784314
                                                                         Trade mark for which           The pictorial mark consisting of
Goods or services:            Goods of Class 30 (confectionery)          Community registration         the illustration of a wrapped sweet
                                                                         sought:                        — Application No 784454
Decision       challenged     Refusal of registration by the
before the Board of           examiner                                   Goods or services:             Goods of Class 30 (sweets)
Appeal:
                                                                         Decision        challenged     Refusal of registration by the
Decision of the Board of      Dismissal of the complaint                 before the Board of            examiner
Appeal:                                                                  Appeal:
 ---pagebreak--- 8.3.2003               EN                         Official Journal of the European Union                                          C 55/37
Decision of the Board of       Dismissal of the complaint                 conducting several sets of civil proceedings before Austrian
Appeal:                                                                   courts against the Bank für Arbeit und Wirtschaft AG. He
                                                                          submits that, in order to conduct these proceedings success-
Pleas in law:                  —     Infringement               of        fully, in particular in order to underpin the claims made with
                                     Article 7(1)(b) of Regulation        the argument that the Bank’s incorrect conduct was part of a
                                     (EC) No 40/94 (1);                   systematic anti-competitive concerted practice over a number
                                                                          of years between the Austrian banks, it has sought authoris-
                               —     Infringement of Article 7(3)         ation to inspect the administrative records concerning the
                                     of Regulation (EC) No 40/            Commission’s competition proceedings against Austrian
                                     94;                                  banks. In the contested decision the Commission rejected the
                               —     Infringement of Article 74(1)        applicant’s application.
                                     of Regulation (EC) No 40/
                                     94;
                               —     Infringement of Article 73 of        The applicant claims that the contested decision runs counter
                                     Regulation (EC) No 40/94;            to the fundamental right of Union citizens granted under
                                                                          Article 255(1) and (2) EC and Article 42 of the EU Charter of
                               —     Infringement of the right to         Fundamental Rights to access to public documents. Further-
                                     a proper hearing.                    more, the decision conflicts with the provisions of Regulation
                                                                          (EC) No 1049/2001 (1). A once-for-all exclusion of the entirety
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          of the administrative records from the right to access to the
     Community trade mark (OJ 1993 L 11, p. 1).                           documents would, in the absence of closer examination of the
                                                                          individual documents for the purpose of determining whether
                                                                          or not they are suitable for publication, not be in accordance
                                                                          with the provisions of that regulation or the case-law of the
                                                                          Community judicature.
Action brought on 7 January 2003 by the Verein für
Konsumenteninformation (VKI) against the Commission                       The applicant goes on to claim that the exceptional circum-
                of the European Communities                               stances mentioned in the third indent of Article 4(2) of
                                                                          Regulation No 1049/2001 do not justify refusal of access to
                           (Case T-2/03)                                  the documents because the relevant inspection activities by
                                                                          the Commission have already been concluded. Nor are the
                          (2003/C 55/91)                                  requirements for application of the exception concerning
                                                                          protection of commercial interests satisfied since the Com-
                   (Language of the case: German)                         mission has not submitted in what manner banks’ commercial
                                                                          interests might specifically be jeopardised. Prevention of the
                                                                          making of justified claims by consumers who have suffered
                                                                          loss is not a commercial interest worthy of protection within
An action against the Commission of the European Communi-                 the meaning of Regulation No 1049/2001. Nor does the
ties was brought before the Court of First Instance of the                protection of court proceedings preclude the grant of access
European Communities on 7 January 2003 by the Verein für                  to inspect documents. Furthermore, protection of the private
Konsumenteninformation (Association for Consumer Infor-                   domain and of the individual’s integrity can readily be secured
mation — VKI), represented by A. Klausner, Lawyer.                        by ensuring the anonymity of records.
The applicant claims that the Court should:
—     annul Commission Decision (2002) 330472 of                          In addition, the applicant claims that there is an overriding
      18 December 2002 by which the applicant was entirely                public interest in inspection by the applicant of the Com-
      refused access to inspect the Commission’s records con-             mission’s records since collective enforcement of claims for
      cerning the competition proceedings against Austrian                compensation by consumers who have suffered loss is con-
      banks (COMP/36.571 ‘Lombard Club: Cartel’)                          ducive to both enforcement of EC competition law and the
                                                                          collective interests of consumers in the Community.
—     order the Commission to pay the costs.
Pleas and main arguments                                                  (1 ) Regulation (EC) No 1049/2001 of the European Parliament and
                                                                               of the Council of 30 May 2001 regarding public access to
                                                                               European Parliament, Council and Commission documents.
The applicant is a consumer organisation constituted under
the Austrian law on associations which in order to safeguard
the collective interests of consumers has special powers in
connection with civil proceedings. Currently, the applicant is