CELEX: C2004/035/18
Language: en
Date: 2004-02-07 00:00:00
Title: Case T-375/03: Action brought on 14 November 2003 by Fachvereinigung Mineralfaserindustrie e. V. Deutsche Gruppe der EURIMA — European Insulation Manufacturers' Association against the Commission of the European Communities

7.2.2004              EN                         Official Journal of the European Union                                           C 35/11
Action brought on 3 November 2003 by the Land                            forms a part. Moreover, agriculture in the Province of Upper
Oberösterreich against the Commission of the European                    Austria is almost exclusively based on small farms, and a
                          Communities                                    further specific element is the constant increase in the area
                                                                         under organic farming and in farming businesses operating on
                                                                         an organic basis. The study carried out by Mr Werner Müller
                        (Case T-366/03)
                                                                         found that it was impossible for conventional, ecological, non-
                                                                         genetically modified crop production and natural flora to co-
                         (2004/C 35/17)                                  exist with wide-scale GMO cultivation, a set of circumstances
                                                                         which the Commission should have taken into account with
                                                                         regard to the specific structure of the agriculture of the region
                  (Language of the case: German)                         of Upper Austria.
                                                                         Finally, the applicant claims that the provisions notified to the
An action against the Commission of the European Communi-
                                                                         Commission constitute a precautionary or preventive measure
ties was brought before the Court of First Instance of the
                                                                         in terms of Article 174(2) EC, and that because they will be in
European Communities on 3 November 2003 by the Land
                                                                         force for only three years the functioning of the internal
Oberösterreich (Province of Upper Austria, Austria), represent-
                                                                         market is affected — if at all — as little as possible; thus the
ed by F. Mittendorfer, lawyer.
                                                                         national measures may be assumed to be proportionate. The
                                                                         result is that the conditions laid down in Article 95(5) EC are
The applicant claims that the Court should:                              fulfilled, and so the Commission should have considered the
                                                                         national provisions notified to it to be in accordance with
                                                                         Community law.
—     annul Commission Decision C(2003) 3117 final of
      2 September 2003 by which national provisions on
      banning GMOs in Upper Austria, notified by Austria in
      accordance with Article 95(5) EC, were rejected;
—     order the Commission to pay the costs of the case.
                                                                         Action brought on 14 November 2003 by Fachvereini-
Pleas in law and main arguments                                          gung Mineralfaserindustrie e. V. Deutsche Gruppe der
                                                                         EURIMA — European Insulation Manufacturers’ Associ-
                                                                         ation against the Commission of the European Communi-
The subject matter of the action is the Commission Decision                                             ties
of 2 September 2003 by which the national provisions
banning the use of genetically modified organisms in Upper
Austria were rejected.                                                                           (Case T-375/03)
The applicant claims that the Commission by that decision                                         (2004/C 35/18)
infringes the right of the Province of Upper Austria to bring
in, following the adoption by the Council or the Commission
of harmonisation measures, national provisions based on new                                (Language of the case: German)
scientific knowledge for the protection of the environment or
the working environment on grounds of a specific problem
for Austria which arose following the adoption of the harmon-
isation measures.                                                        An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance on
                                                                         14 November 2003 by Fachvereinigung Mineralfaserindustrie
The applicant submits that the Commission did not enable the             e. V. Deutsche Gruppe der EURIMA — European Insulation
Province of Upper Austria to be informed of the opinion of               Manufacturers’ Association, of Frankfurt am Main (Germany),
the European Food Safety Authority (EFSA) of 4 July 2003, on             represented by T. Schmidt-Kötters, lawyer.
which the Commission’s decision was based, and to comment
thereon, during the hearing of the interested parties. The
decision-making process did not comply with constitutional               The applicant claims that the Court should:
principles relating to proper procedure and therefore consti-
tuted an infringement of essential procedural requirements.
                                                                         —      annul Commission Decision C(2003) 1473 final of 9 July
                                                                                2003 on State aid No N 694/2002 — Germany, measure
Furthermore, the applicant submits that the national pro-                       to promote the use of insulating materials produced from
visions satisfy the requirements for Article 95(5) EC to apply.                 renewable raw materials;
They constitute a measure to protect the conservation of the
natural environment, of which biodiversity in a broad sense              —      order the Commission to pay the costs of the case.
 ---pagebreak--- C 35/12                 EN                        Official Journal of the European Union                                          7.2.2004
Pleas in law and main arguments                                           The applicant claims that the Court should:
                                                                          —     annul the decision of the Fourth Board of Appeal of the
By the contested decision the Commission decided that                           Office for Harmonisation of 27 August 2003 in Case
Germany’s measure to promote the use of insulating materials                    R 105/2002-4;
produced from renewable raw materials is to be considered
compatible with the EC Treaty. The Commission reached this                —     order the Office to pay the costs.
decision on the basis that, although the measure constitutes
aid, it is, under Article 87(3)(c) EC, compatible with the EC
Treaty since the promoted insulating materials produced from
renewable raw materials clearly have advantages for the
environment over ‘traditional’ insulating materials.                      Pleas in law and main arguments
                                                                          Community trade mark          Word mark ‘Cloppenburg’ —
The applicant submits that the decision infringes essential               sought:                       Application No 1920685 in
procedural requirements. The Commission should have                                                     respect of Class 35 — retail trade
initiated the preliminary examination procedure in accordance                                           services.
with Article 88(2) EC and Article 4(4) of the regulation on
State aid procedure, since it encountered objectively serious             Decision         contested    Examiner’s refusal to register.
difficulties in assessing the measure.                                    before the Board of
                                                                          Appeal:
Furthermore, the decision infringes Article 87 EC. The Com-               Decision of the Board of      Dismissal    of   the   applicant’s
mission’s decision that the measure is compatible with the                Appeal:                       appeal.
common market under Article 87(3)(c) EC because of clear
advantages for the environment was based upon insufficient                Pleas in law:                 Infringement of Article 7(1)(c) of
findings of fact.                                                                                       Regulation No 40/94 (1).
Finally the applicant claims that the decision unjustifiably              (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
disadvantages those insulating materials designated by the                    Community trade mark (OJ 1994 L 11, p. 1).
Commission as ‘traditional’, especially mineral-based insulating
materials, but also insulating materials produced from renew-
able raw materials which do not carry the quality mark
‘natureplus’. The decision thus infringes the principles of
proportionality and non-discrimination and therefore infringes
fundamental principles of Community law.
                                                                          Action brought on 18 November 2003 by Miles Hand-
                                                                          elsgesellschaft International mbH against the Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
                                                                                                       Designs)
Action brought on 17 November 2003 by Peek & Clop-                                                 (Case T-385/03)
penburg KG against the Office for Harmonisation in the
         Internal Market (Trade Marks and Designs)
                                                                                                    (2004/C 35/20)
                         (Case T-379/03)                                  (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                          (2004/C 35/19)                                                          submitted: German)
                   (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
An action against the Office for Harmonisation in the Internal            18 November 2003 by Miles Handelsgesellschaft International
Market (Trade Marks and Designs) was brought before the                   mbH, Norderstedt (Germany), represented by A. Deutsch,
Court of First Instance of the European Communities on                    lawyer. Biker Miles Motorrad Handels- und Vertriebsgesell-
17 November 2003 by Peek & Cloppenburg KG, Düsseldorf                     schaft mbH, Berlin, was also a party to the proceedings before
(Germany), represented by U. Hildebrandt, lawyer.                         the Board of Appeal.