CELEX: C2003/055/85
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-392/02: Action brought on 26 December 2002 by Solvay Pharmaceuticals B.V. against Council of the European Union

8.3.2003              EN                          Official Journal of the European Union                                            C 55/33
The applicant claims that the Court should:                                     ing additives in feedingstuffs as regards withdrawal of the
                                                                                authorisation of an additive and amending Commission
—     annul the decision of the Second Board of Appeal of the                   Regulation (EC) No 2430/1999;
      Office for Harmonization in the Internal Market (OHIM)
      of 1 October 2002 in Case 114/2000-1;
                                                                          —     order the Council to pay the costs;
—     order the defendant to pay the costs.
                                                                          —     in the alternative, should the application be dismissed on
                                                                                the merits, apply the first subparagraph of Article 87(3)
Pleas in law and main arguments                                                 of the Rules of Procedure and order the Council to pay
                                                                                the costs, in view of the persistent lack of cooperation
Applicant for the Com-        J. Tricot & Sons Ltd.                             and transparency on the part of the Commission in the
munity trade mark:                                                              administrative handling of the case.
The Community trade           ‘EMOS’          —       Application
mark concerned:               No 133637 for goods in Class 25
                              (articles of clothing)
Proprietor of the right to    Applicant                                   Pleas in law and main arguments
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                              The applicant manufactures Nifursol, a feedingstuff additive.
                                                                          The applicant is contesting Council Regulation No 1756/
Trade mark or sign            German trade mark ‘EMOSWISS’                2002 (1). The contested regulation amends Council Directive
asserted by way of oppo-      registered in respect of goods              70/524/EEC ( 2) concerning additives in feeding-stuffs and
sition in the opposition      within Classes 10, 24 and 25                withdraws authorisation to place Nifursol on the market. That
proceedings:                                                              authorisation is linked, by virtue of Regulation No 2430/
Decision of the Oppo-         Application rejected                        1999 (3), to the person responsible for putting the product
                                                                          into circulation, in this case the applicant.
sition Division:
Decision of the Board of      Appeal dismissed
Appeal:
                                                                          In support of its application, the applicant alleges infringement
Grounds of claim:             Misapplication of Article 8(1)(b)           of Articles 9m and 3a(b) of Directive 70/524/EEC and breach
                              of Regulation (EC) No 40/94 (like-          of the precautionary principle. The sixth recital in the preamble
                              lihood of confusion).                       to the contested regulation states that it could not be guaran-
                                                                          teed that Nifursol does not present a risk for human health.
                                                                          According to the applicant, the Council altered the test
                                                                          referred to in the abovementioned articles according to which
                                                                          authorisation may be withdrawn only where it becomes
                                                                          apparent that the additive adversely affects human or animal
                                                                          health or the environment, or harms the consumer by
Action brought on 26 December 2002 by Solvay Pharma-
                                                                          impairing the characteristics of products.
    ceuticals B.V. against Council of the European Union
                         (Case T-392/02)
                                                                          The applicant further points out that the Council cannot rely
                         (2003/C 55/85)                                   on the precautionary principle since no reference is made
                                                                          thereto. In any event, the applicant claims that the Council is
                   (Language of the case: French)                         in fact choosing a purely hypothetical risk criterion which is
                                                                          irreconcilable with the case-law of the Court of First Instance
                                                                          which rules out a zero-risk level when applying the precaution-
                                                                          ary principle.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 26 December 2002 by Solvay Pharmaceut-
icals B.V., established in Weesp (Netherlands), represented by            The applicant also alleges infringement of the fifth indent of
Callista Meijer, Francis Herbert and Michel L. Struys, lawyers,           Article 9m of Directive 70/524 as amended and of the general
with an address for service in Luxembourg.                                principle of equal treatment. According to the applicant, the
                                                                          Council and the Commission could not base themselves on
The applicant claims that the Court should:                               the inadequacy of the information provided in order to
                                                                          withdraw authorisation, when the Commission has not made
—     annul Council Regulation (EC) No 1756/2002 of 23 Sep-               use of its powers to enjoin the person responsible for placing
      tember 2002 amending Directive 70/524/EEC concern-                  an additive on the market to provide it with information.
 ---pagebreak--- C 55/34                  EN                           Official Journal of the European Union                                         8.3.2003
Finally, the applicant alleges breach of the fundamental                      Pleas in law and main arguments
principles of legal certainty, sound administration and good
faith. The applicant makes the point that it has, on numerous
occasions, approached the Commission without ever obtaining                   Trade mark for which         A three-dimensional mark in the
any indication which would have enabled it to provide results                 Community registration       form of a bottle standing on its
likely to be acceptable in the eyes of the Commission and the                 sought:                      head in the colours transparent
Council.                                                                                                   and white — Application
                                                                                                           No 1162395
( 1) Council Regulation (EC) No 1756/2002 of 23 September 2002                Goods or services:           Goods of Classes 3 and 20 (includ-
     amending Directive 70/524/EEC concerning additives in feeding-                                        ing soaps, washing and bleaching
     stuffs as regards withdrawal of the authorisation of an additive                                      preparations, cleaning and pol-
     and amending Commission Regulation (EC) No 2430/1999 (Text                                            ishing preparations and artificial
     with EEA relevance) (OJ 2002 L 265, p. 1).                                                            containers for liquid, gel-like and
( 2) Council Directive 70/524/EEC of 23 November 1970 concerning
                                                                                                           pasty preparations)
     additives in feeding-stuffs (OJ, English Special Edition 1970 (III),
     p. 840).
( 3) Commission Regulation (EC) No 2430/1999 of 16 November                   Decision       challenged    Refusal of registration by the
     1999 linking the authorisation of certain additives belonging to         before the Board of          examiner
     the group of coccidiostats and other medicinal substances in             Appeal:
     feedingstuffs to persons responsible for putting them into circu-
     lation (Text with EEA relevance) OJ 1999 L 296, p. 3.
                                                                              Decision of the Board of     Dismissal of the complaint
                                                                              Appeal:
                                                                              Pleas in law:                —     The mark is distinguished by
                                                                                                                 a number of special features
                                                                                                                 and has distinctive force.
                                                                                                           —     The Board of Appeal disre-
                                                                                                                 garded the characteristic
Action brought on 27 December 2002 by Henkel KGaA                                                                geometry of the mark.
against the Office for Harmonisation in the Internal
                Market (Trade Marks and Designs)                                                           —     The mark has acquired pro-
                                                                                                                 tection in several Member
                                                                                                                 States.
                           (Case T-393/02)
                            (2003/C 55/86)
                     (Language of the case: German)
                                                                              Action brought on 27 December 2002 by Arnaldo Lucac-
                                                                               cioni against Commission of the European Communities
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                                                (Case T-394/02)
27 December 2002 by Henkel KGaA, Düsseldorf (Germany),
represented by C. Osterrieth, Rechtsanwalt, with an address
                                                                                                       (2003/C 55/87)
for service in Luxembourg.
                                                                                                (Language of the case: French)
The applicant claims that the Court should:
—       set aside the decision of the Fourth Board of Appeal of
        the Office for Harmonisation in the Internal Market of
                                                                              An action against the Commission of the European Communi-
        3 October 2002 in Case R 313/2001-4, concerning
                                                                              ties was brought before the Court of First Instance of the
        Community trade mark registration application
                                                                              European Communities on 27 December 2002 by Arnaldo
        No 1162395;
                                                                              Lucaccioni, residing in St-Leonards-on-Sea (United Kingdom),
                                                                              represented by Juan Ramón Iturriagagoitia and Karine Delvol-
—       order the Office to pay the costs.                                    vé, lawyers.