CELEX: C2002/109/96
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-14/02: Action brought on 30 January 2002 by Agrofair Benelux BV, Volta River Estates Limited, SH Pratt & Co (Bananas) Ltd and M W Mack Limited against the Commission of the European Communities

C 109/48              EN                     Official Journal of the European Communities                                       4.5.2002
Action brought on 14 January 2002 by Zapf Creation AG                   Grounds of claim:             Violation of Article 43, Section 2
against the Office for Harmonisation in the Internal                                                  of Regulation 40/94 (1) since there
                             Market                                                                   was no satisfactory proof of the
                                                                                                      genuine use of the opposing
                                                                                                      trademark and violation of
                          (Case T-8/02)                                                               Article 8, Section 1 b) of Regu-
                                                                                                      lation 40/94 since there is no
                                                                                                      danger of confusion.
                        (2002/C 109/95)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                  (Language of the case: English)                           Community trade mark (OJ 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 14 January 2002 by Zapf Creation
AG, represented by Mr Axel Kockläuner of Meissner Bolte &
Partner, Munich (Germany).
                                                                        Action brought on 30 January 2002 by Agrofair Benelux
                                                                        BV, Volta River Estates Limited, SH Pratt & Co (Bananas)
The applicant claims that the Court should:                             Ltd and M W Mack Limited against the Commission of
                                                                                          the European Communities
—     annul the decision of the First Board of Appeal of
      29 October 2001 in case R 418/2001-1 relating to                                            (Case T-14/02)
      Opposition Proceedings no. B 97230 and Community
      trade mark application no. 50229 ‘Colette Zapf Creation
      Kombi Collection’                                                                          (2002/C 109/96)
                                                                                           (Language of the case: English)
Pleas in law and main arguments
Applicant for the Com-        Zapf Creation AG                          An action against the Commission of the European Communi-
munity trade mark:                                                      ties was brought before the Court of First Instance of the
                                                                        European Communities on 30 January 2002 by Agrofair
                                                                        Benelux BV, Volta River Estates Limited, SH Pratt & Co
The Community trade           The figurative mark ‘Colette Zapf         (Bananas) Ltd and M W Mack Limited, represented by Mr Phil-
mark concerned:               Creation Kombi Collection’ for            ippe Vlaemminck and Mr Pieter De Wael of Vlaemminck &
                              certain goods in class 28                 Partners, Ghent (Belgium).
Proprietor of the right to    Jesmar S.A.
the trade mark or sign
asserted by way of oppo-                                                The applicant claims that the Court should:
sition in the opposition
proceedings:                                                            —    annul Article 1, third indent and Article 2(4) of Com-
                                                                             mission Regulation (EC) No 2294/2001 of 26 November
Trade mark or sign            The Spanish word mark ‘Colette’                2001 fixing certain indicative quantities and individual
asserted by way of oppo-      for certain goods in class 28                  ceilings for the issue of licences for imports of bananas
sition in the opposition                                                     into the Community for the first quarter of 2002 under
proceedings:                                                                 the tariff quotas to the extent that the applicants can only
                                                                             import a maximum of 8 % of their annual allocation
Decision of the Oppo-         Rejection of the opposition by                 during the first quarter of 2002;
sition Division:              Jesmar S.A.
                                                                        —    order the Commission to pay the costs of the applicant
Decision of the Board of      Admission of the appeal lodged                 companies in the present proceedings including the costs
Appeal:                       by Jesmar S.A.                                 of the interim proceedings.
 ---pagebreak--- 4.5.2002              EN                    Official Journal of the European Communities                                      C 109/49
Pleas in law and main arguments                                        Action brought on 31 January 2002 by BASF AG against
                                                                              the Commission of the European Communities
                                                                                                (Case T-15/02)
The applicants import organic, fair-trade and conventionally
grown bananas into the European Union. They are all non-
traditional importers of bananas who have requested and                                        (2002/C 109/97)
received a C quota for 2002. Because of Commission Regu-
lation 2294/2001, the applicants are allowed to import during
the first quarter of 2002 only 8 % of their quota, while the                              (Language of the case: English)
traditional C operators can import 26 % of their quota, and
the traditional and non-traditional A and B operators 27 %.
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
According to the applicants, the Commission has misused its            European Communities on 31 January 2002 by BASF AG,
powers in that the Commission, by the contested Regulation,            represented by Mr Nicholas Levy, Dr John Temple Lang,
favours the traditional C operators. Following the agreement           Mr Robert O’Donoghue and Dr Christoph Feddersen of Cleary,
reached between the European Union and the United States,              Gottlieb, Steen & Hamilton, Brussels (Belgium).
and the agreement with Ecuador to resolve the respective
disputes over bananas, the banana regime in the European
Union will be reformed in two stages. The second stage
includes a reduction of the C quota by 100 000 tonnes. As a            The applicant claims that the Court should:
consequence of the contested Regulation, the burden of the
decrease of the C quota will be imposed, according to
the applicant, solely on the non-traditional importers. The            —     annul or substantially reduce the fine imposed on BASF
applicant points out that if this limitation of 8 % is taken                 pursuant to Article 3(b) of the Decision;
through the whole year, this leads to a reduction of the import
under the C quota of approximately 100 000 tonnes.
                                                                       —     order the Commission to pay BASF’s legal and other costs
                                                                             and expenses in relation to this matter.
Furthermore, the contested Regulation violates the principles
of proportionality and non-discrimination. The non-tra-
ditional C operators are the only operators who can import
                                                                       Pleas in law and main arguments
only 8 % of their quota in the first quarter. This limitation
discriminates, according to the applicant, between the tra-
ditional and non-traditional C operators in particular. The
contested measure is also disproportionate, since the Com-             The present application concerns a Decision of the European
mission places the burden of the decrease of the C quota solely        Commission rendered on 21 November 2001, in case
on the non-traditional C operators. Instead the Commission             No. COMP/E-1/37.512-Vitamins. This Decision finds that a
could have spread this burden between the traditional and              number of companies infringed Article 81 EC and Article 53
non-traditiona C operators. According to the applicant, it is          EEA by participating in a cartel that affected the global markets
also unlikely that the Commission will divide the remaining            for vitamins A, E, B2, B5, C, D3 and Beta-carotene and
92 % of the quota over the remainder of the year.                      carotinoids. The fines imposed on the companies involved
                                                                       were the highest ever in a competition law case.
Finally, the applicants claim that there has been a violation of
                                                                       In support of its claims, the applicant relies on and submits
the principle of legitimate expectations and legal certainty.
                                                                       the following grounds and main arguments:
According to the applicants, the current 8 % allocation is a
complete departure from the Commission’s earlier practices
where allocations of 26 to 28 % were given to the non-                 —     Whilst the statements of objections stated that there was
traditional C operators for the first quarter of the year. The               a single cartel, comprising collusive arrangements with
applicants also claim that they could legitimately rely on the               regard to various vitamins, the contested Decision, in
fact that the decrease of the C quota would be divided between               contrast, stated for the first time that the arrangements
the different traditional and non-traditional operators in a                 with regard to each vitamin constituted ‘distinct’ infringe-
proportionate manner.                                                        ments of Community competition law. The Commission
                                                                             has thus breached the principle according to which a
                                                                             Decision cannot rely on legal or factual objections
                                                                             that are materially different from those contained in a
                                                                             statement of objections.