CELEX: C2003/044/61
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-354/02: Action brought on 25 November 2002 by Bristol-Myers Squibb International Corporation against the Commission of the European Communities

22.2.2003            EN                          Official Journal of the European Union                                          C 44/31
Trade mark or        sign   Word marks INTESA (two Italian               The applicant claims that the Court should:
opposed:                    marks, one international mark
                            and a Greek, a Finnish, a Swedish,
                            a UK and an Irish mark), for goods           —     annul Commission Decision C(2002) 3370 dated 9 Sep-
                            in classes 9, 14, 18 and 21, in the                tember 2002;
                            case of one of the two Italian
                            marks, and class 3 in the case of            —     order that the Commission pays the applicant’s costs
                            the others. The opposition was
                            directed against the goods men-
                            tioned in the application as being
                            in classes 3 and 21.
                                                                         Pleas in law and main arguments
Ruling of the Opposition    opposition partially upheld (risk
Division:                   of confusion in the case of goods
                            of class 3).                                 The contested decision requires the Member States to amend
                                                                         the national marketing authorisations as listed in annex I
Decision of the Board of    appeal dismissed.                            to the Decision. The amendments concern the marketing
Appeal:                                                                  authorisations for Capoten and associated names, to produce
                                                                         a harmonised summary of product characteristics.
Pleas in law:               —      relevance of the phonetic dif-
                                   ference between the conflict-
                                   ing marks                             The applicant represents the various subsidiary companies that
                                                                         are the marketing holders for Capoten throughout the EU.
                            —      conceptual           difference       Capoten, based on the active substance captopril, is a medicinal
                                   between the marks                     product commonly know as an ACE-inhibitor. The product
                                                                         was first authorised in the EU in 1980.
                            —      no risk of confusion between
                                   the conflicting marks.
                                                                         The authorisations for Capoten in the EU were obtained under
                                                                         national marketing authorisation procedures, pursuant to
                                                                         Directive 65/65/EEC ( 1). As a result, some differences existed
                                                                         between the authorisations in the EU Member States as regards
                                                                         the wording and extent of information given. According to the
                                                                         applicant, the therapeutic indications were similar in all
                                                                         Member States.
                                                                         Following patent expiry in the individual Member States,
Action brought on 25 November 2002 by Bristol-Myers
                                                                         generic captopril products have been authorised in those
Squibb International Corporation against the Commission
                                                                         states. The applicant believes that after an attempt to achieve
               of the European Communities
                                                                         mutual recognition in Italy of the authorisation by France of
                                                                         one of those generic products, Italy referred the matter to the
                                                                         Committee for Proprietary Medicinal Products. The rationale
                       (Case T-354/02)                                   of the referral was that the therapeutic indications in the
                                                                         summary of product characteristics were different and that a
                                                                         harmonisation was necessary for public health reasons. The
                        (2003/C 44/61)                                   contested decision was adopted following the referral.
                 (Language of the case: English)                         In support of its application, the applicant submits that the
                                                                         contested decision is invalid on the ground of lack of
                                                                         competence of the European Agency for the Evaluation of
                                                                         Medicinal Products, the Committee for Proprietary Medicinal
                                                                         Products and the Commission. According to the applicant, the
                                                                         referral to the Committee for Proprietary Medicinal Products
An action against the Commission of the European Communi-                was not in accordance with Article 30 of Directive 2001/83/
ties was brought before the Court of First Instance of the               EC on the Community code relating to medicinal products for
European Communities on 25 November 2002 by Bristol-                     human use ( 2). The existence of divergent national decisions
Myers Squibb International Corporation, Brussels, Belgium,               regarding the authorisation of a product is a necessary, but not
represented by David Anderson QC, Kelyn Bacon, Barrister                 a sufficient condition for such a referral. According to the
and Ian Dodds-Smith, Solicitor.                                          applicant, the referring body must additionally identify the
 ---pagebreak--- C 44/32                 EN                         Official Journal of the European Union                                         22.2.2003
question to be considered and that question must relate to the             —     order the defendant to pay the costs.
quality, safety or efficacy of the product. The applicant claims
that these conditions were not satisfied.
The applicant furthermore claims that the contested decision
infringed essential procedural requirements. According to the
applicant, the procedure breached the applicant’s rights of                Pleas in law and main arguments
defence and its right to be heard. The applicant was not given
the opportunity to comment on the key amendments to the
Capoten Summary of Product Characteristics. The procedure
also infringed the timetable provided for in Article 32 of                 In the applicants’ submission, it is apparent from the contested
Directive 12001/83 and in the Commission’s Notice to                       decision that Poste Italiane SpA was continuously in deficit in
Applicants (1998 version).                                                 the postal services sector from 1994 to 1999 and that it
                                                                           received State resources which served to offset the deficits. In
                                                                           Article 2 of the decision, the Commission decided that that
The applicant invokes also the infringement of rules of                    State subsidy to Poste Italiane SpA did not constitute State aid
Community law, like the principle of equal treatment, the duty             under Article 87(1) EC.
to give reasons, the principle of legitimate expectations and
the principle of proportionality.
Finally, the applicant claims that the contested decision is               The applicants submit that, so far as concerns the offsetting of
vitiated by manifest errors of assessment.                                 losses of those postal services which, although forming part of
                                                                           the universal service, have been opened up to competition, the
                                                                           decision is incompatible with Article 87(1) EC as interpreted
( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-        in the Commission decision of 19 June 2002 (2). By that
     mation of provisions laid down by Law, Regulation or Adminis-         decision the Commission established that the use of State
     trative Action relating to proprietary medicinal products (OJ         resources to offset losses recorded by a postal undertaking in
     1965, p. 369).                                                        the sector of postal services that form part of the universal
( 2) Directive 2001/83/EC of the European Parliament and of the            service but are opened up to competition infringes
     Council of 6 November 2001 on the Community code relating to          Article 87(1) of the Treaty as a cross-subsidy not capable of
     medicinal products for human use (OJ L 311, p. 67).                   being approved where the losses are caused by rates of charges
                                                                           which do not cover costs and which the postal undertaking is
                                                                           not required to apply by a State measure.
                                                                           The applicants contend that the decision is all the less
Action brought on 5 December 2002 by Deutsche Post                         compatible with Article 87(1) EC in so far as it relates to loss-
AG and DHL International S.r.l. against the Commission                     making postal services which do not form part of the universal
                  of the European Communities                              service and have been opened up to competition for a long
                                                                           time. Since the Italian postal operator has been recording only
                                                                           losses for 50 years and those losses can therefore only have
                           (Case T-358/02)                                 been covered by State resources, the Commission should not
                                                                           have ‘neglected’ the offsetting in respect of those postal services
                           (2003/C 44/62)                                  from State resources but would have been obliged in that
                                                                           respect too to examine whether there was a cross-subsidy
                                                                           incompatible with Article 87(1) EC.
                    (Language of the Case: German)
An action against the Commission of the European Communi-                  The applicants further submit that no reason is stated as to
ties was brought before the Court of First Instance of the                 why the Commission in the contested decision, in contrast to
European Communities on 5 December 2002 by Deutsche                        its decision of 19 June 2002, recognised the cross-subsidy as
Post AG, established in Bonn (Germany), and DHL Inter-                     involving a net extra cost which could be offset in the ‘general
national S.r.l., established in Rozzano (Italy), represented by            economic interest’. At the same time, therefore, there is an
J. Sedemund and T. Lübbig, lawyers.                                        infringement of the duty to state reasons under Article 253
                                                                           EC.
The applicants claim that the Court should:
—      annul Commission Decision 2002/782/EC of 12 March                   Finally, the decision infringes the general prohibition of
       2002 on the aid granted by Italy to Poste Italiane SpA (1);         discrimination under Article 12 EC, since the Commission has