CELEX: C2002/180/56
Language: en
Date: 2002-07-27 00:00:00
Title: Case T-167/02: Action brought on 30 May 2002 by Etablissements Toulorge against European Parliament and Council of the European Union

C 180/32               EN                     Official Journal of the European Communities                                       27.7.2002
Action brought on 28 May 2002 by José Pedro Pessoa e                     Action brought on 30 May 2002 by Etablissements
Costa against Commission of the European Communities                     Toulorge against European Parliament and Council of the
                                                                                                European Union
                         (Case T-166/02)
                                                                                                (Case T-167/02)
                         (2002/C 180/55)
                   (Language of the case: French)
                                                                                                (2002/C 180/56)
An action against the Commission of the European Communi-                                  (Language of the case: French)
ties was brought before the Court of First Instance of the
European Communities on 28 May 2002 by José Pedro Pessoa
e Costa, residing in Lisbon, represented by Jean-Noël Louis,
Etienne Marchal and Albert Coolen, lawyers.
                                                                         An action against the European Parliament and the Council of
The applicant claims that the Court should:
                                                                         the European Union was brought before the Court of First
                                                                         Instance of the European Communities on 30 May 2002
—     annul the decision of the Commission of 3 July 2001 to             by Etablissements Toulorge, whose registered office is at
      bring disciplinary proceedings against him;                        Bricquebec (France), represented by Denis Waelbroek and Dirk
                                                                         Brinckman, lawyers.
—     annul the decision of the appointing authority to reject
      the request submitted on 6 July 2001 by the Director of
      the EMCDDA to transfer him to the EMCDDA, pursuant
      to Article 29(1)(c) of the Staff Regulations;
                                                                         The applicant claims that the Court should:
—     order the defendant to pay the costs.
                                                                         —    annul Directive 2002/2/EC of the European Parliament
                                                                              and of the Council of 28 January 2002 amending Council
                                                                              Directive 79/373/EEC on the circulation of compound
Pleas in law and main arguments                                               feedingstuffs and repealing Commission Directive 91/
                                                                              357/EEC;
The applicant requested, upon returning from a period of
unpaid leave, to be transferred to the European Monitoring               —    declare the non-contractual liability of the Community,
Centre for Drugs and Drug Addiction (EMCDDA). The transfer                    in the body of the Council and the European Parliament
was refused by the Commission because disciplinary proceed-                   and order the defendants to make good all the damage
ings had been instituted against the applicant following charges              suffered by the applicant as a consequence of that
laid by the Portuguese authorities.                                           directive;
In support of his application, the applicant claims that                 —    order the parties to produce, within a reasonable period
the decision to initiate disciplinary proceedings against him                 after the Court of First Instance delivers its decision, exact
infringes the fifth paragraph of Article 88 of the Staff                      figures to quantify the damage which the parties have
Regulations. Furthermore, the applicant pleads breach of the                  agreed or, in the absence of such agreement, order the
principle that innocence must be presumed and infringement                    parties to transmit to the Court of First Instance, within
of Article 87 of the Staff Regulations, the rights of the defence             the same period, additional claims containing such exact
and the findings of the Heads of Administration No 103 J/77.                  figures;
The applicant claims, finally that the decision refusing to              —    order interest to be paid at an annual rate of 8 % (or any
transfer him to the EMCDDA is unlawful inasmuch as it is                      other appropriate rate which the Court may decide) with
based on a decision which is itself unlawful, namely the                      effect from the date of the decision of the Court finding
decision to initiate disciplinary proceedings.                                the Community liable until actual payment is made;
                                                                         —    order the defendant to pay the costs.
 ---pagebreak--- 27.7.2002               EN                     Official Journal of the European Communities                                      C 180/33
Pleas in law and main arguments                                           The applicant claims that the Court should:
The contested decision introduces an obligation on the                    —     annul the decision of the Third Board of Appeal of the
manufacturers of compound feedingstuffs for production                          OHIM of 6 March 2002;
animals to provide an indication of the precise quantities of all
the raw material used in their products in order to protect
public health by improving the traceability of the ingredients.           —     order the defendant to pay the costs.
According to the applicant, the effect of that measure is to
oblige disclosure of basic know-how and business secrets of
manufacturers of compound feedingstuffs.
In support of its application, the applicant claims breach of
several rights guaranteed by Community law and of objectives              Pleas in law and main arguments
pursued by the Treaty. Furthermore, the contested directive
runs counter to the safeguarding of undistorted competition
and the encouragement of technical research and development.              Applicant for the Com-       The applicant
Moreover, it disregards property rights and the right freely to           munity trade mark:
pursue an economic activity. The applicant claims, finally, that
the directive runs counter to the objective of improving
agricultural products and protecting the environment.                     The Community trade          Community figurative trade mark
                                                                          mark concerned:              No 1.178.425, which depicts a
                                                                                                       bottle of beer bearing the words
The applicant maintains, moreover, that the contested measure                                          ‘NEGRA MODELO’ on the label,
is disproportionate. According to the applicant, the directive                                         for products falling within Class-
is not capable of attaining the objective of protecting public                                         es 25 (clothing), 32 (beer) and 42
health and in any event goes beyond what is necessary to                                               (services related to bars, res-
achieve such an objective. The applicant further claims that                                           taurants and nightclubs)
the directive does not of itself ensure the quality of the
products nor improves the traceability of the ingredients and
that it places a disproportionate burden with regard to                   Proprietor of the right to   MODELO CONTINENTE HIPER-
labelling.                                                                the trade mark or sign       MERCADOS S.A.
                                                                          asserted by way of oppo-
                                                                          sition in the opposition
Finally, the applicant claims that the measure is based on an             proceedings:
erroneous legal basis. In its view, Article 37 of the EC Treaty
should be chosen as the legal basis instead of Article 152 of
the Treaty in view of the fact that the contested directive bears         Trade mark or sign           Portuguese figurative marks
no relationship to veterinary or plant health matters.                    asserted by way of oppo-     No 295.800 and 295.804, which
                                                                          sition in the opposition     distinguish goods in Classes 25
                                                                          proceedings:                 (clothing, including footwear) and
                                                                                                       33 (syrups, beer and non-
                                                                                                       alcoholic beverages) of the inter-
                                                                                                       national classification respectively
Action brought on 30 May 2002 by Cervecerı́a Modelo,                      Decision of the Oppo-        Provisional refusal to register the
S.A. de C.V. against Office for the Harmonization of the
                                                                          sition Division:             Community trade mark in issue
    Internal Market (trade marks and designs) (OHIM)
                                                                                                       to distinguish ‘beer’ and regis-
                                                                                                       tration in respect of ‘clothing’ and
                         (Case T-169/02)                                                               ‘services related to bars, res-
                                                                                                       taurants and nightclubs’
                         (2002/C 180/57)
                                                                          Decision of the Board of     Decision of the Opposition Div-
                   (Language of the case: Spanish)                        Appeal:                      ision upheld
                                                                          Grounds of claim:            Infringement of Article 8(1)(a) of
An action against Office for Harmonization in the Internal                                             Regulation (EC) No 40/94 (likeli-
Market (trade marks and designs) (OHIM) was brought before                                             hood of confusion)
the Court of First Instance of the European Communities on
30 May 2002 by Cervecerı́a Modelo, S.A. de C.V., whose
registered office is in Mexico, D.F., represented by Carlos Lamo
Devesa and Antonio Velázquez Ibáñez.