CELEX: C2001/227/45
Language: en
Date: 2001-08-11 00:00:00
Title: Case T-104/01: Action brought on 14 May 2001 by Claudia Oberhauser against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

11.8.2001             EN                      Official Journal of the European Communities                                         C 227/23
Action brought on 5 May 2001 by Michael Cwik against                     Action brought on 14 May 2001 by Claudia Oberhauser
       the Commission of the European Communities                        against the Office for Harmonisation in the Internal
                                                                                       Market (Trade Marks and Designs)
                        (Case T-103/01)
                                                                                                  (Case T-104/01)
                        (2001/C 227/44)
                                                                                                  (2001/C 227/45)
                   (Language of the case: French)
                                                                         (Language of the case to be determined in accordance with Article
An action against the Commission of the European Communi-
                                                                           131(2) of the Rules of Procedure Application drafted in German)
ties was brought before the Court of First Instance of the
European Communities on 5 May 2001 by Michael Cwik,
residing at Tervuren (Belgium), represented by Nicolas Lhoëst,           An action against the Office for Harmonisation in the Internal
avocat, with an address for service in Luxembourg.                       Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
The applicant claims that the Court should:                              14 May 2001 by Claudia Oberhauser, residing in Munich
                                                                         (Germany), represented by Markus Graf, Rechtsanwalt.
—     annul the Commission’s decision of 13 June 2000                    Additional party before the Board of Appeal: Petit Liberto,
      transferring the applicant from the Information, Publi-            S.A., Gerona (Spain).
      cations and Economic Documentation Unit [subsequently
      renamed the Euro and EMU Unit (DG ECFIN-04)] to the
      General Coordination, Human Resources and Adminis-                 The applicant claims that the Court should:
      tration Unit [subsequently renamed, in March 2000,
      the Coordination, Human Resources, Information and                 —     set aside the decision of the Second Board of Appeal of
      Administration Unit (DG ECFIN-01)];                                      the Office for Harmonisation in the Internal Market of
                                                                               28 February 2001 in Case R 757/1999-2;
—     in so far as may be necessary, annul the implicit decision
      of the Commission rejecting the complaint submitted by             —     order the defendant to pay the costs of these proceedings,
      the applicant on 26 September 2000;                                      and order the intervener to pay the costs of the proceed-
                                                                               ings before the Office for Harmonisation in the Internal
—     order the defendant to pay the sum of EUR 25 000 by                      Market.
      way of compensation for non-material damage;
—     order the defendant to pay all the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         Applicant for regis-           The applicant.
                                                                         tration of a Community
The applicant maintains that, by not responding to the                   trade mark:
complaint made by him against his transfer, the Commission
failed to discharge its obligation to provide a statement of             Trade mark for which           The word mark ‘Fifties’ for goods
reasons for any decision adversely affecting an official, as laid        registration sought:           in Class 25 (Jeans — Items of
down in Article 25(2) of the Staff Regulations. He also pleads                                          clothing) — Application No
misuse of powers. According to the applicant, the Commission                                            490003.
exerted real pressure on him, by denying him access to the
information necessary in order to enable him to perform his
                                                                         Owner of the mark put          Petit Liberto, S.A.
information and communication tasks, with a view to isolating
                                                                         forward as grounds for
him and harassing him. The applicant further argues that his
                                                                         refusal under the oppo-
functions as an economic and monetary specialist did not
                                                                         sition procedure:
correspond to the work which he was given to do following
his transfer to the ECFIN-01 unit. Lastly, the applicant claims
that, when deciding on his situation, the Commission failed to           Trade mark put forward         The registered Spanish word and
comply with its obligation to have regard to the interests               as grounds for refusal:        pictorial mark ‘miss fifties’
and welfare of officials, inasmuch as it did not take into                                              (No 1,723,310) for goods in
consideration the interests of the service or the interests of the                                      Class 25.
applicant. According to the applicant, that situation resulted
from a bad personal relationship existing for several years              Decision of the Oppo-          Refusal of the application.
between him and his hierarchical superiors.                              sition Division:
                                                                         Decision of the Board of       Dismissal of the applicant’s com-
                                                                         Appeal:                        plaint.
 ---pagebreak--- C 227/24               EN                      Official Journal of the European Communities                                   11.8.2001
Pleas in law                   — The Board of Appeal ignored              becoming established on 1 April 1985. The applicant conse-
                                   the fact that the conflicting          quently pleads infringement of Article 11(2) of Annex VIII to
                                   mark consisted not of the term         the Staff Regulations and breach of the general provisions for
                                   ‘miss fifties’ but of a word and       the implementation of Article 11(2) of Annex VIII to the Staff
                                   pictorial mark, containing a           Regulations.
                                   great variety of word and pic-
                                   torial components.
                               — There was no conceptual con-
                                   nection between ‘Fifties’ and
                                   ‘miss fifties’.
                                                                          Action brought on 14 May 2001 by Sacilor Lormines S.A.
                                                                            against the Commission of the European Communities
                                                                                                   (Case T-107/01)
                                                                                                   (2001/C 227/47)
Action brought on 11 May 2001 by Noé Youssouroum
          against the Council of the European Union                                          (Language of the case: French)
                                                                          An action against the Commission of the European Communi-
                         (Case T-106/01)
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 May 2001 by Sacilor Lormines
                         (2001/C 227/46)                                  S.A., a mining company established at Puteaux (France),
                                                                          represented by Geneviève Marty, avocat.
                                                                          The applicant claims that the Court should:
                    (Language of the case: French)
                                                                          —     annul the implicit decision of 21 April 2001 by which
                                                                                the Commission refused to uphold the complaint lodged
An action against the Council of the European Union was
                                                                                by the mining company Sacilor Lormines S.A. and
brought before the Court of First Instance of the European
                                                                                registered on 21 February 2001 under No SG 01 A/2321;
Communities on 11 May 2001 by Noé Youssouroum, residing
in Brussels, represented by Jean-Noël Louis and Véronique                 —     in the alternative, annul the decision of 30 March
Peere, avocats, with an address for service in Luxembourg.                      2001 by which the Commission refused to uphold
                                                                                the complaint lodged by the mining company Sacilor
The applicant claims that the Court should:                                     Lormines S.A. and registered on 21 February 2001 under
                                                                                No SG 01 A/2321;
—     annul the Council’s decision of 8 June 2000 fixing the              —     order the Commission to pay the costs.
      calculation of the number of years of pensionable service
      with which he is to be credited pursuant to Article 11(2)
      of Annex VIII to the Staff Regulations following the                Pleas in law and principal arguments
      transfer to the Community pension scheme of the
      pension rights acquired by the applicant prior to his entry
      into service;                                                       By letter of 30 March 2001, the Commission refused to
                                                                          uphold the applicant’s complaint requesting the opening of a
—     order the defendant to pay the costs.                               procedure under Article 88 of the ECSC Treaty against the
                                                                          French Government. In support of its action for a declaration
                                                                          of failure to act and for annulment, the applicant pleads
                                                                          infringement by the Commission of Article 88 of the ECSC
Pleas in law and main arguments                                           Treaty. According to the applicant, the French Government
                                                                          has infringed Articles 4(c) and 86 of the ECSC Treaty by
                                                                          imposing special charges on the applicant. This constitutes, it
The applicant disputes the salary taken into consideration by             claims, an unlawful act against which the Commission should
the Council when calculating the number of years of pension-              have taken action in accordance with Article 88 of the ECSC
able service to be credited to him following the transfer of the          Treaty. In addition, the applicant pleads, in the context of its
pension rights acquired by him prior to his entry into service.           action for annulment, breach of the essential procedural
According to the applicant, the Council should have taken                 requirements of the decision of 30 March 2001 and violation
into consideration the salary received by him upon his entry              of the principle of sound administration.
into service on 1 November 1983, initially as a member of the
auxiliary staff and subsequently as a member of the temporary
staff, and not the salary corresponding to his grade upon