CELEX: C2003/239/39
Language: en
Date: 2003-10-04 00:00:00
Title: Case T-253/03: Action brought on 4 July 2003 by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd against the Commission of the European Communities

C 239/20               EN                       Official Journal of the European Union                                            4.10.2003
The applicant claims that the Court should:                             —      The procedure provided for in Article 35 of Directive
                                                                               2001/82 can only affect and have an impact on the
                                                                               national marketing authorisation directly concerned by
—     annul the contested Decision requesting the Member                       it.
      States to suspend marketing authorizations for products
      containing benzathine penicillin under the referral pro-          —      In the present case there should not be ‘Community
      cedure of Article 35 of Directive 2001/82;                               interest’ justifying a referral.
—     alternatively declare the contested Decision non-existant;        (1 ) Directive 2001/82/EC of the European Parliament and Council of
                                                                             6 November 2001, on the Community code relating to veterinary
                                                                             national products (OJ L 311, of 28 November 2001, p. 1),
                                                                             which consolidates and replaces Council Directive 81/851/EEC of
—     order the Defendant to bear the costs.                                 28 September 1981 on the approximation of the laws of the
                                                                             Member States relating to veterinary medicinal products (OJ L 317
                                                                             of 6 November 1981, p. 1, and the subsequent modifications).
                                                                        (2 ) OJ C 109, of 4.5.2002, p. 51.
Pleas in law and main arguments
The applicants in the present case are all companies holding            Action brought on 4 July 2003 by Akzo Nobel Chemicals
national marketing authorisations issued by national com-               Ltd and Akcros Chemicals Ltd against the Commission of
petent authorities for a veterinary medicinal product contain-                              the European Communities
ing the pharmacologically active substance ‘bezathine penicil-
lin’. That substance is a general antibiotic used in veterinary                                    (Case T-253/03)
injectable medicinal products for food producing animals.
                                                                                                   (2003/C 239/39)
The present application has been lodged against the Decision                                 (Language of the case: English)
of the Commission of 22 April 2003, ordering a suspension of
the marketing authorisations of veterinary medicinal products
containing the substance benzathine penicillin on the basis of
Article 35 of Directive 2001/82/EC (1) (former Article 20 of            An action against the Commission of the European Communi-
Directive 81/851) in the framework of a so-called ‘Community            ties was brought before the Court of First Instance of the
interest referral procedure’ initiated by the Irish authorities.        European Communities on 4 July 2003 by Akzo Nobel
The applicants in the present case introduced an action                 Chemicals Ltd, Surrey, (United Kingdom), and Akcros Chemi-
for annulment against the Decision introducing the referral             cals Ltd, Surrey, (United Kingdom), represented by C. Swaak
procedure on 25 January 2002. The application, which is still           and R. Mollica, lawyers.
pending, was registered under Roll No T-19/02 ( 2).
                                                                        The applicant claims that the Court should:
                                                                        —      review, under Article 230 EC, the legality of the Rejection
In support of their conclusions, the applicants submit that:                   Decision;
                                                                        —      annul, under Article 231 EC, the Rejection Decision;
—     The Commission cannot oblige the Member States to
      suspend national marketing authorisations of products             —      order the Commission to pay the applicant’s costs in the
      containing benzathine penicillin under the procedure                     present proceedings.
      contained in Article 35 of Directive 2001/82 as this
      Article does not provide the Commission with the power
      to adopt decisions harmonising national marketing auth-
      orisations.                                                       Pleas in law and main arguments
—     Even if one were to accept that the procedure contained           In February 2003, representatives of the Commission perfor-
      in Article 35 of Directive 2001/82 could lead to a binding        med an investigation on the basis of Article 14(3) of Regulation
      decision of the Commission, such procedure would at               17/62 with regard to the applicants in Eccles, Manchester. In
      most apply to veterinary medicinal products authorised            the course of the investigation, the Commission reviewed,
      under the mutual recognition procedure.                           took copies of and seized several documents ( 1).
 ---pagebreak--- 4.10.2003                EN                         Official Journal of the European Union                                            C 239/21
Some of these documents became the object of a disagreement                 The applicant claims that the Court should:
between the applicants and the Commission. According to the
applicants, the seizure and handling of these documents
                                                                            —     decide that the mark ‘INTERNET PHOTONICS’ is eligible
violate the general principle of legal professional privilege as
                                                                                  for registration as a community trade mark since it does
recognized under European Community Law.
                                                                                  comply with Article 7(1)(b) of Regulation (EC) No 40/
                                                                                  94 ( 1);
In Commission Decision C(2003)1533 regarding a claim of
legal privilege in the context of an investigation pursuant to              —     annul the decision dated the 13th May 2003 by the
Article 14(3) of Council Regulation No 17 in Case No COMP/                        Second Board of Appeal of the Office for Harmonisation
E-1/38.589 the Commission firstly rejected the applicants’                        in the Internal Market (Trade Marks and Designs) concern-
request to return or destroy all copies of the documents in                       ing case Number R 765/2002-2;
dispute and secondly, indicated it will proceed to join all
documents in dispute to the Commission’s file.
                                                                            —     allow the application for the mark to be remitted to the
                                                                                  Examination Division of the Office for further consider-
                                                                                  ation of eligibility for registration under Article 7(1)(c)
With the present application, the applicants seek the review of                   of Regulation (EC) No 40/94 ( 1) having regard to the
the legality and the annulment of this Decision. The applicants                   distinctive character of the mark as a whole, or alterna-
submit that the Commission has committed an infringement                          tively to remit the application for the mark for a decision
of the Treaty and of general principles of Community law and                      by a Board of Appeal of the Office as to whether the
has violated Regulation 17/62 as interpreted by the Courts of                     mark is eligible for registration as a community trade
Justice of the European Communities.                                              mark under Article 7(1)(c) of Regulation (EC) No 40/
                                                                                  94 ( 1) on the original appeal from the examiner.
The applicants contend that the Commission has violated the
principle of legal professional privilege by violating the                  —     order the Office for Harmonisation in the Internal Market
procedures relating to the application of this principle as set                   to pay the costs.
out by case law, by its unjustified denial of legal professional
privilege and by violating the applicants’ fundamental rights
(such as the right to privacy) which form the basis of the
aforementioned principle.
                                                                            Pleas in law and main arguments
( 1) The applicants have lodged an application for the annulment of
     Commission Decision C(2003) 559/4 in as far as it has been             The trade mark con-            The word mark ‘INTERNET PHO-
     interpreted as legitimating the Commission’s action of seizing,        cerned:                        TONICS’          —        application
     reviewing and reading of documents allegedly covered by legal                                         No 002275600
     professional privilege (Case T-125/03, OJ [2003] C 146 of
     21.6.2003, p. 42).
                                                                            Goods or service con-          Goods and services in Classes 9,
                                                                            cerned:                        37, 42 (computer software and
                                                                                                           hardware etc.)
                                                                            Decision          contested    Refusal of registration by the
                                                                            before the Board of            examiner
                                                                            Appeal:
Action brought on 15 July 2003 by Internet Photonics,
Inc against the Office for Harmonisation in the Internal                    Decision of the Board of       Dismissal of the appeal
           Market (Trade Marks and Designs) (OHIM)                          Appeal:
                                                                            Grounds of claim:              —      misapplication              of
                           (Case T-257/03)                                                                        Article 7(1)(b) of Regulation
                                                                                                                  (EC) No 40/94 (1)
                           (2003/C 239/40)
                                                                                                           —      misapplication              of
                                                                                                                  Article 7(1)(c) of Regulation
                    (Language of the case: English)                                                               (EC) No 40/94 (1)
                                                                            (1 ) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-
An action against the Office for Harmonisation in the Internal                   munity trade mark (OJ L 11, p. 1).
Market was brought before the Court of First Instance of the
European Communities on 15 July 2003 by Internet Photonics,
Inc., New Jersey, USA, represented by M. Chapple, Barrister.