CELEX: C2002/156/57
Language: en
Date: 2002-06-29 00:00:00
Title: Case T-94/02: Action brought on 27 March 2002 by Hugo Boss AG against the Office for Harmonisation in the Internal Market

29.6.2002              EN                     Official Journal of the European Communities                                      C 156/29
Pleas in law and main arguments                                          Action brought on 27 March 2002 by Hugo Boss AG
                                                                         against the Office for Harmonisation in the Internal
                                                                                                     Market
                                                                                                  (Case T-94/02)
The applicant manages, as general partner, the business of the
company Klausner Nordic Timber GmbH which was founded
in 1997 and built a sawmill in Wismar in 1998. By the                                            (2002/C 156/57)
contested decision, the Commission declared the State aid
which the Federal Republic of Germany granted to the                                       (Language of the case: English)
applicant in relation to the construction and expansion of the
sawmill to be incompatible with the common market.
                                                                         An action against the Office for Harmonisation in the Internal
                                                                         Market was brought before the Court of First Instance of the
                                                                         European Communities on 27 March 2002 by Hugo Boss AG,
The applicant claims, first, that the guarantee in excess of             represented by Mr Emmanuel Baud of Latham & Watkins,
EUR 15,21 million with an aid component of 0,5 % must be                 Paris (France). A further party to the proceedings before the
regarded as ‘de minimis’ aid, thus precluding a Commission               Board of Appeal was Delta Protipos Biomichania Galaktos S.A.
decision ordering the recovery of that aid. The Commission
therefore wrongly applied Article 87 EC by failing to comply             The applicant claims that the Court should:
with Commission Regulation (EC) No 69/2001 (1) and/or the
notice on the de minimis rule for State aid.                             —     annul the contested Decision rendered by the Fourth
                                                                               Board of Appeal in its ruling no. R0053/2001-4 on
                                                                               12 December 2001;
                                                                         —     order that the BOSS Community Trade Mark application
The applicant further submits that the Commission misapplied                   nr 331462 for ice cream be rejected;
Articles 87 and 88 EC and the German Investment Allowance
Law. The Investment Allowance Law of 1999 provides for the               —     order the OHIM to pay the costs.
grant of a tax investment allowance for the acquisition and
manufacture of capital equipment and buildings by businesses
located in the former East Germany and was approved in its
entirety by the Commission. The requirements of the Law are              Pleas in law and main arguments
fulfilled, so that the investment allowance in favour of the
applicant was lawful. The Commission’s decision that the grant           Applicant for the Com-       Delta Protipos         Biomichania
of an investment allowance to the applicant was permissible              munity trade mark:           Galaktos S.A.
only as to 10 % is therefore unlawful.
                                                                         The Community trade          The word mark ‘BOSS’ for certain
                                                                         mark concerned:              goods in classes 29, 30, 31, 32
                                                                                                      and 33
Moreover, the applicant claims that the decision constitutes an          Proprietor of the right to   Hugo Boss AG
infringement of the prohibition venire contra factum proprium            the trade mark or sign
and the Community principle of the protection of legitimate              asserted by way of oppo-
expectations. Furthermore, the Commission unlawfully failed              sition in the opposition
to consider the actual aid intensity amount and infringed                proceedings:
Council Regulation (EC) No 659/1999 and Article 253 EC (2).
Finally, the Commission infringed Articles 87, 88 and 253 EC             Trade mark or sign           The German registration of the
by way of its formulaic and inaccurate consideration of the              asserted by way of oppo-     word mark ‘BOSS’ for certain
company Klausner Nordic Timber as a large-scale company.                 sition in the opposition     goods in classes 3, 9, 14, 18,
                                                                         proceedings:                 24 and 25 and the following
                                                                                                      international registration of this
                                                                                                      mark as well as the international
                                                                                                      registration of the word mark
                                                                                                      ‘BOSS’ for certain goods in class-
(1) Commission Regulation (EC) No 69/2001 of 12 January 2001 on
    the application of Articles 87 and 88 of the EC Treaty to de
                                                                                                      es 29, 30, 31, 32 and 33 and the
    minimis aid (OJ 2001 L 10, p. 30).                                                                international registration for these
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying                                       same goods of the word mark
    down detailed rules for the application of Article 93 of the EC                                   ‘BOSS HUGO BOSS’.
    Treaty (OJ 1999 L 83, p. 1).
                                                                         Decision of the Oppo-        Rejection of the opposition.
                                                                         sition Division:
                                                                         Decision of the Board of     Dismissal of the appeal intro-
                                                                         Appeal:                      duced by Hugo Boss AG.
 ---pagebreak--- C 156/30                EN                     Official Journal of the European Communities                                     29.6.2002
Grounds of claim:              Violation of Article 8(5) of               According to the applicant, the Commission made manifest
                               Council Regulation 40/94 (1).              errors of assessment and errors in law in concluding that the
                               According to the applicant, the            commitments are sufficient to take away the said competitive
                               trade mark is detrimental to the           concerns and has therefore violated Articles 2 (2) and 8 (2) of
                               repute of the earlier trade mark           the Merger Regulation (2).
                               and constitutes an unfair advan-
                               tage for Delta.
                                                                          In the contested Decision in the present case, the Commission
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the           imposed on Shell and DEA the obligation to make available,
    Community trade mark (OJ 11, p. 1)
                                                                          up to a certain quantity, access to Shell’s terminal facilities to
                                                                          producers of ethylene. This remedy is based, according to the
                                                                          applicant, on an error of assessment. The applicant submits
                                                                          that this obligation is unclear in its definition of the entities
                                                                          that should be granted access. As a consequence, this remedy
                                                                          could be made ineffective if access is granted to entities who
                                                                          should not, according to the applicant, benefit from this access.
Action brought on 5 April 2002 by Ineos NV against the                    The remedy is also limited in time, while the situation after its
         Commission of the European Communities                           expiry will remained the same as it was originally. Furthermore,
                                                                          the applicant claims that the volume of ethylene that can be
                          (Case T-99/02)                                  put on the ARG+market in this manner is insufficient to
                                                                          remedy the constraints on competition caused by the oper-
                                                                          ation.
                         (2002/C 156/58)
                    (Language of the case: English)
                                                                          The Commission also made an error in law since there is no
                                                                          protection for third parties on the market until the remedies
                                                                          in the Shell/DEA case and in the BP/E.ON case become
An action against the Commission of the European Communi-                 effective. The remedies imposed in each case are only effective
ties was brought before the Court of First Instance of the                if the remedies in the other case are operative as well. The
European Communities on 5 April 2002 by Ineos NV,                         remedies to be given by Shell/DEA will not, however, be
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr                operative until 1 January 2003 or later. Therefore, the
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).                 jointly dominant position will, according to the applicant, be
                                                                          unconstrained until all the remedies are operative. Meanwhile,
                                                                          the contested Decision does not provide for any interim
The applicant claims that the Court should:                               protection for third parties.
—     annul, under Article 230 of the EC Treaty, the Com-
      mission Decision in case no. COMP/M.2389-Shell/DEA
      in its entirety and/or insofar as it concerns the market for        The applicant claims in addition that the errors of assessment
      supply of merchant ethylene;                                        and the error in law of the Commission concerning the remedy
                                                                          in the BP/E.ON case is another ground for annulment of the
—     order the Commission to pay the costs.                              Decision contested in the present case since both cases are so
                                                                          closely related to each other. In the BP/E.ON case, the
                                                                          Commission considered that the commitment to reduce the
                                                                          combined shareholding of BP and Veba Oel, by two out of
Pleas in law and main arguments                                           three shares, would achieve open access at reasonable prices
                                                                          for use of the ARG pipe network.
The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.
                                                                          The applicant argues that the remedy in the BP/E.ON case
                                                                          gives no control over how the future shareholders will conduct
The applicant contests the Decision of the Commission                     themselves with regard to the company’s future strategy, and
declaring an operation where Deutsche Shell GmbH would                    that there is, therefore, no guarantee that this remedy would
acquire sole control of the undertaking DEA Mineraloel AG                 reconstitute the ARG pipe network as a common carrier.
under certain conditions compatible with the common market                Furthermore, the applicant states that the transfer of a share
and the EEA Agreement. These conditions were necessary                    needs the unanimous approval of all the other shareholders,
since the operation gave rise to competition concerns on the              which constitutes an element of uncertainty in the remedy.
ARG+ merchant ethylene market. In particular, there was a                 The applicant submits also that the Commission has made an
risk of creating a joint dominant position of Shell/DEA and               error in law since the remedy gives no provisional solution to
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON (1). These cases                the problems of lack of access and high transportation charges
were treated similarly by the Commission.                                 on the pipe network until the divestment of the shares.