CELEX: C2002/044/38
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-292/01: Action brought on 28 November 2001 by Phillips-Van Heusen Corporation against Office for the Harmonization of the Internal Market (trade marks and designs) (OHIM)

C 44/20               EN                     Official Journal of the European Communities                                       16.2.2002
Versorgungs- und Verkehrsgesellschaft mbH — DVV —                       pursuant to Articles 10(1), 13(1) and 4(4) of Council Regu-
Stadtwerke, of Dessau (Germany), Neubrandenburger                       lation (EC) No 659/1999 (1). Had it done so, the Commission
Stadtwerke GmbH, of Neubrandenburg (Germany), Stadtwerke                would then have been constrained, under the law applicable
Schwäbisch Hall GmbH, of Schwäbisch Hall (Germany),                     to grants of aid, to adopt a negative decision against the Federal
Stadtwerke Tübingen GmbH, of Tübingen (Germany) and                     Republic of Germany on the facts as stated.
Stadtwerke Uelzen GmbH, of Uelzen (Germany), represented
by D. Fouquet, lawyer.
                                                                        (1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                            down detailed rules for the application of Article 93 of the EC
                                                                            Treaty (now Article 88 EC) (OJ 1999 L 83, p. 1).
The applicants claim that the Court should:
—     declare that, by failing, within two months after being
      formally called upon by letter of 29 August 2001 to act
      pursuant to the second paragraph of Article 232 EC, to
      examine the complaint made on the basis of Articles 87
      and 88 EC and to reach a decision in the light of that
      examination, the Commission has infringed Article 232
      EC;                                                               Action brought on 28 November 2001 by Phillips-Van
                                                                        Heusen Corporation against Office for the Harmonization
                                                                         of the Internal Market (trade marks and designs) (OHIM)
—     order the Commission to pay the costs of the proceedings,
      including the costs incurred by the applicants, even in the
      event that, following the bringing of the action, the                                      (Case T-292/01)
      Commission takes action in such a way that, in the
      opinion of the Court, the proceedings have become                                           (2002/C 44/38)
      nugatory.
                                                                                            (Language of the case: Italian)
Pleas in law and main arguments
                                                                        An action against Office for Harmonization in the Internal
                                                                        Market (trade marks and designs) (OHIM) was brought before
The applicants are German public utilities producing their own          the Court of First Instance of the European Communities on
electricity. Since the introduction of competition in the               28 November 2001 by Phillips-Van Heusen Corporation of
electricity market, the applicants, as energy suppliers, have           New York (United States of America), represented by Fabrizio
been in competition with, in particular, the 19 existing nuclear        Jacobacci. The other party in proceedings before the Com-
power stations as regards the production of electricity in the          mission was: Pash Textilvertrieb und Einzelhandel GmbH of
Federal Republic of Germany.                                            Munich (Germany)
                                                                        The applicant claims that the Court should:
According to the applicants, the nuclear power station oper-
ators set aside reserves in their commercial and tax balance
sheets in respect of the cost of having to close down at some           —     annul Decision R 0740/2000-3 of the Third Board of
future date and the disposal of irradiated fuel elements and                  Appeal of the Office for Harmonization in the Internal
radioactive waste. The disposal and shutting-down costs are                   Market (Trade Marks and Designs) of 12 September 2001
allocated to the sales proceeds from continuous electricity                   notified on 28 September 2001 to the applicant;
production. However, according to the applicants, the obli-
gation under commercial law to set aside reserves affects, at           —     definitively reject the opposition brought by the defend-
the same time, the way in which the nuclear power station                     ant against registration of Community trade mark
operators are treated for tax purposes. As a result of the                    No 161331 BASS, on behalf of Phillips-Van Heusen
German tax rules, a significant part of the tax additionally                  Corporation, in respect of the whole of Class 25;
demanded is in fact made freely available to the nuclear power
station operators by virtue of the legislation on tax relief.           —     order the Office for Harmonization in the Internal Market
                                                                              (Trade Marks and Designs) (OHIM) to register Community
                                                                              trade mark No 161331 BASS;
The applicants assert that the exemption of reserves under
fiscal law in favour of nuclear power stations constitutes a            —     order the defendant and the OHIM to pay, jointly or
grant by the Federal Republic of Germany of unlawful, non-                    severally, to the applicant the costs, expenses and fees
notified aid which is incompatible with the common market.                    incurred in both the present proceedings and the oppo-
They maintain that the Commission was obliged to open a                       sition and appeal proceedings before the Office for
formal procedure against the Federal Republic of Germany                      Harmonization in the Internal Market.
 ---pagebreak--- 16.2.2002             EN                     Official Journal of the European Communities                                          C 44/21
Pleas in law and main arguments                                         The applicant claims that the Court should:
Applicant for the Com-       The applicant                              —      annul the decision of 29 January 2001 of the Head of
munity trade mark:                                                             Unit ADMIN B 3 fixing her place of recruitment at
                                                                               Brussels and refusing to grant her the daily subsistence
The Community trade          Word mark ‘BASS’ — application                    allowance;
mark concerned:              No 161331, registration sought
                             in respect of goods in Class 25            —      annul the implied rejection of the applicant’s complaint
                             (footwear and clothing)                           of 27 April 2001 against the original contested decision;
Proprietor of the right to   Pash Textilvertrieb und Einzelhan-         —      order the Commission to pay to the applicant the
the trade mark or sign       del GmbH                                          amounts to which she is entitled as a result of having
asserted by way of oppo-                                                       Rome as her place of recruitment, as set out in the
sition in the opposition                                                       grounds, and in particular the daily subsistence allowance,
proceedings:                                                                   with default interest at 7 % per annum, as from the date
                                                                               on which those amounts fell due until payment is made
Trade mark or sign           German mark registered under                      in full;
asserted by way of oppo-     the name ‘PASH’, registered in
sition in the opposition     order to distinguish various               —      order the Commission to pay the costs.
proceedings:                 articles in international classes 18
                             and 25
Decision of the Oppo-        Opposition dismissed                       Pleas in law and main arguments
sition Division:
Decision of the Board of     Annulment of the decision of the           The applicant was seconded to the Commission in Brussels for
Appeal:                      Opposition Division                        three years before being engaged as a member of the auxiliary
                                                                        staff. For that purpose, the applicant’s place of recruitment was
Grounds of claim:            —     Inconsistency between the            set as Rome. The applicant was subsequently engaged as a
                                   form of order sought and             member of the temporary staff for an indeterminate period,
                                   the order made, since the            with Brussels as the place of recruitment. That decision is
                                   opposition was not brought           contested by the applicant.
                                   against the ‘shoes’ men-
                                   tioned in Class 25                   In support of her application, the applicant pleads an error in
                                                                        law as regards the concept of ‘residence’ and a manifest error
                             —     Coexistence of the marks
                                                                        of assessment. According to the applicant, her residence in
                                   ‘BASS’ and ‘PASH’ on the
                                                                        Brussels was provisional during the entire period of her
                                   German market
                                                                        engagement with the Commission in Brussels. In her sub-
                             —     Misapplication       of    Ar-       mission, the facts demonstrate that her habitual residence
                                   ticle 8(1)(b) of Regulation          remained Rome. Moreover, the applicant claims that the
                                   (EC) No 40/94 (likelihood of         Commission illegally withdrew a decision giving rise to
                                   confusion).                          entitlement. Initially, the place of recruitment of the applicant
                                                                        was Rome when she took up her duties as a member of
                                                                        the temporary staff. That decision was withdrawn by the
                                                                        subsequent contested decision not to grant the applicant
                                                                        entitlement to the daily subsistence allowance.
Action brought on 3 December 2001 by Donatella Ineich-
   en against Commission of the European Communities
                        (Case T-293/01)                                 Action brought on 3 December 2001 by Lucı́a Aparicio
                                                                        Chofré against Commission of the European Communities
                         (2002/C 44/39)
                                                                                                 (Case T-294/01)
                  (Language of the case: French)
                                                                                                  (2002/C 44/40)
                                                                                           (Language of the case: Spanish)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 December 2001 by Donatella
Ineichen, residing in Brussels, represented by Marc-Albert              An action against the Commission of the European Communi-
Lucas, lawyer.                                                          ties was brought before the Court of First Instance of the