CELEX: C2001/303/38
Language: en
Date: 2001-10-27 00:00:00
Title: Case T-195/01: Action brought on 20 August 2001 by the Government of Gibraltar against the Commission of the European Communities

27.10.2001             EN                     Official Journal of the European Communities                                       C 303/23
In support of his action for annulment, the applicant also               Grounds of claim:            Incorrect       interpretation   of
alleges infringement of the guidelines adopted by the Com-                                            article 7 (1) (b) of the Council
mission on 18 September 1999, breach of the principle of                                              Regulation No 40/94 — The mark
equal treatment and psychological harassment in the work                                              is sufficiently distinctive. The
place. Finally the applicant claims compensation for damage                                           Applicant claims further that the
he claims to have suffered.                                                                           burden to proof otherwise lays
                                                                                                      with the Board of Appeal. It is not
                                                                                                      up to the Applicant to show that
                                                                                                      article 7(1) (b) of the Council
                                                                                                      Regulation No 40/94 is not appli-
                                                                                                      cable.
Action brought on 14 August 2001 by Unilever N.V.
against the Office for Harmonization in the Internal
                              Market
                         (Case T-194/01)
                         (2001/C 303/37)
                                                                         Action brought on 20 August 2001 by the Government
                                                                         of Gibraltar against the Commission of the European
                   (Language of the case: English)                                                Communities
An action against the Office for Harmonization in the Internal                                   (Case T-195/01)
Market was brought before the Court of First Instance of the
European Communities on 14 August 2001 by Unilever N.V.,
a company registered in Rotterdam (Netherlands) represented                                      (2001/C 303/38)
by Dr. Verna von Bomhard and Dr. Andreas Renck of Lovells
Boesebeck Droste, Alicante (Spain).
                                                                                           (Language of the case: English)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
—     alter the decision of the First Board of Appeal of the             ties was brought before the Court of First Instance of the
      Office for Harmonization in the Internal Market (Trade             European Communities on 20 August 2001 by the Govern-
      Marks and Designs) of 22 May 2001 (Case R 1086/                    ment of Gibraltar, represented by Alastair Sutton, Michael
      2000-1) to provide that the trade mark at hand is eligible         Llamas and Walter Schuster, of White & Case, Brussels
      for registration as a Community trade mark;                        (Belgium).
—     alternatively, the decision be annulled;
                                                                         The applicant claims that the Court should:
—     order the defendant to bear the costs of the proceedings.
                                                                         —     annul the Commission’s decision to open the procedure
                                                                               under Article 88(2), in the form of the letter of 11 July
Pleas in law and main arguments                                                2001 addressed to the United Kingdom;
                                                                         —     order the defendant to pay the costs.
Applicant for the Com-         Unilever N.V.
munity trade mark:
The Community trade            Three dimensional mark (Pebble            Pleas in law and main arguments
mark concerned:                shape)        —         Application
                               No 1 418 250 for certain goods
                               in class 3                                The Government of Gibraltar introduced a tax scheme under
                                                                         which certain companies, under certain conditions, were
Decision of the Exam-          Rejection of the Application              exempt from income tax and subject only to a fixed tax (the
iner:                                                                    exempt company legislation). That legislation was modified by
                                                                         several amendments before and after the accession of the
Decision of the Board of       Partial acceptance of the Appeal          United Kingdom and Gibraltar to the European Communities
Appeal:                                                                  in 1973.
 ---pagebreak--- C 303/24                EN                    Official Journal of the European Communities                                    27.10.2001
The Commission has now decided to open a procedure under                 18 and 23 years after the amendments in question, would
Article 88(2) EC, qualifying the legislation in question as              violate the principle of legal certainty and the legitimate
non-notified new aid. According to the Commission, the                   expectations of the applicant. The time-limit set in
amendments made to the legislation in 1979 and 1983,                     Article 1(b)(iv) of Regulation No 659/1999 for regarding state
following the United Kingdom’s accession to the European                 aid as new aid expired long ago. This principle should,
Communities, were substantial modifications, so that the entire          according to the applicant, also apply in equity to the
scheme had to be qualified as new aid. That decision is now              Commission’s review of alterations to existing aid schemes, as
contested by the applicant.                                              is the case here.
                                                                         Finally, the applicant states that the Commission’s investigation
According to the applicant, the Commission has violated                  prior to the decision was too lengthy, and therefore constitutes
Gibraltar’s rights of defence, by providing an insufficient              a breach of the Commission’s duty to exercise due diligence
statement of the reasons for the contested decision and by               and of the principle of good administration.
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence, in so far as they constitute essential procedural
requirements.
                                                                         Action brought on 14 August 2001 by Société Coopéra-
Further, the applicant claims that the decision is incompatible          tive Agricole GIPAM against Commission of the European
with Article 88 of the EC Treaty and that the Commission has                                       Communities
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.                                                        (Case T-197/01)
                                                                                                  (2001/C 303/39)
According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed                              (Language of the case: French)
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should             An action against the Commission of the European Communi-
therefore rather be considered as existing aid under Article 88          ties was brought before the Court of First Instance of the
(1) EC.                                                                  European Communities on 14 August 2001 by Société
                                                                         Coopérative Agricole GIPAM, whose registered office is at
                                                                         Ducos (France), represented by Alain Lorang, Hubert Mazingue
                                                                         and Patrick Leroyer Gravet, lawyers, with an address for service
                                                                         in Luxembourg.
To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under              The applicant claims that the Court should:
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has                —     annul Commission Regulation No 896/2001 of 7 May
elapsed since the amendments in question were adopted, the                     2001;
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question            —     order the defendant to pay the costs.
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.
                                                                         Pleas in law and main arguments
The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the                In support of its arguments, the applicant claims that the
time when the amendments in question were made, the                      regulation at issue (1) does not comply with Council Regulation
interpretation of ‘state aid’ under EC law has evolved, especially       No 404/1993 (2) for whose application the contested regu-
in relation to fiscal measures. At that time, that type of measure       lation lays down detailed rules. According to the applicant,
was, according to the applicant, not generally regarded as               those rules adversely affect the rights acquired by the applicant
falling within the rules of the EC Treaty concerning state aid.          under the earlier regulations adopted to implement Regulation
There was therefore no reason to notify the legislation at that          No 404/1993. Under those earlier regulations, the applicant
time. To regard that legislation as new aid now, respectively            was characterised as a traditional importer, which is no longer