CELEX: 62002TN0236
Language: en
Date: 2002-08-08 00:00:00
Title: Case T-236/02: Action brought on 8 August 2002 by Luigi Marcuccio against the Commission of the European Communities

C 233/34              EN                       Official Journal of the European Communities                                        28.9.2002
The applicant claims that the Court should:                                                              —     Registration of the Scala Inc’s
                                                                                                               Community trade mark
                                                                                                               application is an infringe-
—     annul the First Board of Appeal’s decision of 27 May                                                     ment of Article 8(1) of
      2002 in Case R 830/2001-1;                                                                               Council Regulation No 40/
                                                                                                               94, as the applicant is the
—     remit the case to the First Board of Appeal;                                                             owner of two earlier and
                                                                                                               identical trade marks which
                                                                                                               are registered for identical or
—     order each party to bear its own costs.                                                                  similar goods.
Pleas in law and main arguments
                                                                          Action brought on 8 August 2002 by Luigi Marcuccio
Applicant for the Com-         Scala Inc., USA                              against the Commission of the European Communities
munity trade mark:
                                                                                                   (Case T-236/02)
The Community trade            Word mark SCALA for ‘computer
mark concerned:                software’ in class 9.                                               (2002/C 233/60)
Proprietor to the right to     The Applicant                                                  (Language of the case: Italian)
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                              An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 8 August 2002 by Luigi Marcuccio,
Trade mark or sign             Danish trade mark registration no.
asserted by way of oppo-       VR 1300 1989 SCALA (word                   represented by Luciano Garofalo, lawyer.
sition in the opposition       mark), registered on 17 March
proceedings:                   1989, and German trade mark                The applicant claims that the Court should:
                               registration no. 2059843 SCALA
                               (Word mark), registered on                 —    annul the decision changing the ‘affectation de l’emploi
                               15 March 1994. These two marks                  A7/A6 et de son titulaire M. Luigi Marcuccio (n. Personnel
                               are registered for a range of goods             048092), fonctionnaire de grade A7’ (‘transferring the
                               in classes 9 and 16. The appli-                 A6/A7 post and its holder, Mr Luigi Marcuccio (Staff
                               cant’s opposition was based on                  No 048092), a grade A7 official’) from the Directorate-
                               some of the goods for which                     General for Development, Commission’s Delegation in
                               the earlier mark was registered,                Luanda (Angola) to the Directorate-General for Develop-
                               specifically ‘counterprograms sto-              ment in Brussels; the said decision was adopted by the
                               red on datacarriers’ and ‘date pro-             Director-General for Development, Mr Koos Richelle, on
                               cessing programs stored on data                 18 March 2002;
                               carriers’ in class 9, and was direct-
                               ed against all the goods specified         —    order the defendant:
                               in Scala Inc’s application
                                                                               —     to pay compensation for the non-material, existen-
Decision of the Oppo-          Refusal of the application                            tial, biological, physical, psychological and material
sition Division:                                                                     damage suffered by the applicant as a result of the
                                                                                     decision contested in these proceedings, in the sum
                                                                                     of 100 000 (one hundred thousand) euros or such
Decision of the Board of       Refusal of he application                             greater or lesser sum as the Court may think fair and
Appeal:                                                                              equitable;
Grounds of claim:              —     The documents submitted by                —     to pay all the salary-related allowances connected
                                     the Applicant to the Oppo-                      with the performance by the said Marcuccio of his
                                     sition Division did comply                      duties in Angola, with effect from the date on which
                                     with Rule 16(2) of Regu-                        his transfer took effect (1 April 2002), together with
                                     lation (EC) No. 2868/95,                        interest thereon at the rate of 10 % per annum,
                                     implementing Council Regu-                      compounded annually;
                                     lation No 40/94, on the
                                     Community Trade Mark                      —     to pay the costs.
 ---pagebreak--- 28.9.2002              EN                     Official Journal of the European Communities                                       C 233/35
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant in the present case is contesting the decision to          By application of 15 April 2002 the applicant, a manufacturer
transfer him from the Commission’s delegation in Luanda to               of special glass, requested, pursuant to Article 6(1) of Regu-
the Directorate-General for Development in Brussels. That                lation (EC) No 1049/2001 of the European Parliament and of
decision is allegedly connected with illness caused by personal          the Council (1), access to documents relating to various State
conflicts in which he was involved within the said delegation            aid procedures. Two of those procedures concerned the
in Luanda.                                                               applicant itself as a presumed recipient of State aid; the others
                                                                         concerned one of its competitors on the special glass markets,
In support of his claims, the applicant pleads:                          the firm Schott Glass. The applicant’s action is directed at the
                                                                         Commission’s decision of 28 May 2002 in so far as it refuses
—     failure to provide a statement of reasons, inasmuch as the         to grant access to the documents in the aid procedures
      mere reference to the interests of the service cannot be           concerning the applicant itself and in procedures concerning
      regarded as satisfactory in that respect;                          Schott Glass and are already completed.
—     infringement of the principle of proper administration,            The applicant submits that the Commission’s refusal manifestly
      alternatively failure to discharge the duty to have regard         infringes Article 2(1) and (4) of Regulation (EC) No 1049/
      for the welfare and interests of officials;                        2001. The applicant had a right to access which was not
                                                                         restricted by Article 4 of the regulation. In particular, the
—     non-compliance with the principle that the interested
                                                                         Commission had not proved the existence of any specific
      party should be heard in advance of the adoption of a
                                                                         impairment of the protected interests set out in Article 4(2) of
      decision, inasmuch as the contested decision was taken
                                                                         the regulation.
      without any prior notice to the person concerned;
—     the decision at issue is indicative in several respects of a       Furthermore, the applicant submits that the Commission
      misuse of powers, since it is apparent from the overall            wrongly relied on the exception relating to the protection of
      circumstances of the case that the objective actually              the purpose of inspections, investigations and audits. Referring
      pursued was not of a merely organisational nature but              to Article 4(7) of the regulation, the applicant submits that it
      was to distance the applicant from Angola and from the             has at the very least the right to access to documents in
      functions which he was responsible for performing there.           examination procedures which have already been completed.
                                                                         Moreover, it ought to have been possible for the Commission
                                                                         to grant the applicant access to a document in which business
                                                                         secrets had been obscured and thus to grant partial access in
                                                                         accordance with Article 4(6) of the regulation.
Action brought on 8 August 2002 by Technische Glaswer-                   Finally, the Commission infringed its obligation to state
ke Ilmenau GmbH against the Commission of the Euro-                      reasons in accordance with Article 253 EC, since it had merely
                        pean Communities                                 given a general statement of reasons.
                         (Case T-237/02)
                                                                         (1 ) Regulation (EC) No 1049/2001 of the European Parliament and
                                                                              of the Council of 30 May 2001 regarding public access to
                         (2002/C 233/61)                                      European Parliament, Council and Commission documents (OJ
                                                                              2001 L 145 p. 43).
                   (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Technische                      Action brought on 9 August 2002 by José Barbosa
Glaswerke Ilmenau GmbH, whose registered office is at                    Gonçalves against Commission of the European Com-
Ilmenau (Germany), represented by G. Schohe and Ch. Arhold,                                           munities
lawyers, acting as agents, with an address for service in
Luxembourg.                                                                                       (Case T-238/02)
The applicant claims that the Court should                                                        (2002/C 233/62)
—     annul the Commission’s decision of 28 May 2002
                                                                                           (Language of the case: Portuguese)
      concerning the applicant’s application for access to
      documents — D(2002) 330168 — except for the part in
      which access is refused to documents directly connected
      with the pending aid procedure concerning Schott;                  An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 9 August 2002 by José Barbosa