CELEX: C2003/264/53
Language: en
Date: 2003-11-01 00:00:00
Title: Case T-277/03: Action brought on 23 July 2003 by Dionisia Elefteriadi against the Commission of the European Communities

C 264/30               EN                       Official Journal of the European Union                                          1.11.2003
Action brought on 4 August 2003 by Focus Magazin                        Mark or sign cited in         The German mark ‘FOCUS’
Verlag GmbH against the Office for Harmonisation in the                 opposition:                   (No 395 46 204) in respect of
         Internal Market (Trade Marks and Designs)                                                    goods and services in Classes 9,
                                                                                                      16, 35, 36, 37, 38, 41 and 42
                         (Case T-274/03)
                                                                        Decision of the Oppo-         Rejection of the opposition
                                                                        sition Division:
                         (2003/C 264/52)
                                                                        Decision of the Board of      Dismissal of the applicant’s appeal
                                                                        Appeal:
(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was       Pleas in law:                 —     Submission in the oppo-
                        submitted: German)                                                                  sition     proceedings       of
                                                                                                            adequate evidence of the
                                                                                                            applicant’s earlier right;
                                                                                                      —     Infringement of the appli-
An action against the Office for Harmonisation in the Internal                                              cant’s right to a hearing;
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on                                                —     Infringement of the appli-
4 August 2003 by Focus Magazin Verlag GmbH, Munich                                                          cant’s right of due process;
(Germany), represented by U. Gürtler, lawyer. France Telecom
S.A., Paris, was also a party to the proceedings before the                                           —     Infringement of Article 42 of
Board of Appeal.                                                                                            Regulation (EC) No 40/94 (1)
                                                                                                            and Rule 20(3) of Regulation
                                                                                                            (EC) No 2868/95 (2).
The applicant claims that the Court should:
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
—     annul Decision No 1956/2001 of the Opposition Div-                    Community trade mark (OJ 1994 L 11, p. 1).
      ision of the defendant of 2 August 2001 in opposition             (2) Commission Regulation (EC) No 2868/95 of 13 December
      proceedings B 260576;                                                 1995 implementing Council Regulation (EC) No 40/94 on the
                                                                            Community trade mark (OJ 1995 L 303, p. 1).
—     annul the decision of the Fourth Board of Appeal of the
      defendant of 30 April 2003 in appeal proceedings R 849/
      2001-4;
—     instruct the defendant to make a determination on the
      merits in opposition proceedings B 260576, taking
      account of the legal view of the matter formed by the
      adjudicating court;
—     order the defendant to pay the costs of the proceedings.          Action brought on 23 July 2003 by Dionisia Elefteriadi
                                                                          against the Commission of the European Communities
                                                                                                 (Case T-277/03)
Pleas in law and main arguments
                                                                                                 (2003/C 264/53)
Applicant for Com-            France Telecom S.A.
munity trade mark:
                                                                                           (Language of the case: Greek)
Community trade mark          Word mark ‘Focus One’ in respect
sought:                       of goods and services in Classes 9,
                              35, 38 and 42 — application
                              No 984 484
                                                                        An action against the Commission of the European Communi-
Proprietor of mark or         The applicant                             ties was brought before the Court of First Instance of the
sign cited in the oppo-                                                 European Communities on 23 July 2003 by Dionisia Elefteria-
sition proceedings:                                                     di, residing in Athens, represented by Timotheos Sigalas.
 ---pagebreak--- 1.11.2003             EN                          Official Journal of the European Union                                           C 264/31
The applicant claims that the Court should:                               Action brought on 8 August 2003 by Van Mannekus &
                                                                              Co. B.V. against the Council of the European Union
—     Annul or vary Commission Decision E(2003)738 Final                                           (Case T-278/03)
      of 25 March 2003 concerning recovery of amounts
      unduly paid to Dionisia Vlakhaki, formerly an auxiliary
                                                                                                   (2003/C 264/54)
      agent, so as to remove from it Article 1(b) thereof and
      not to require her to pay to the defendant any of the
      amounts mentioned therein in addition to the principal                                 (Language of the case: German)
      sum claimed by the defendant and, specifically, not to
      require payment of interest on late payment together
      with additional amounts calculated up to 23 July 2003
      in the amount of two thousand eight hundred and forty-              An action against the Council of the European Union was
      seven euros and 32 cents (EUR 2 847,32) which is broken             brought before the Court of First Instance of the European
      down in accordance with Article 1 of the contested                  Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
      decision into one thousand three hundred and forty-four             Schiedam (Netherlands), represented by H. Bleier, lawyer.
      cents (EUR 1 344,04) for the period until 10 April 2001,
      one thousand and twenty-three euros and eighty-eight
      cents (EUR 1 023,88) for the period from 11 April 2001              The applicant claims that the Court should:
      until 31 December 2002 and four hundred and seventy-
      nine euros and 40 cents (EUR 479,40) for the period                 —     annul Council Regulation (EC) No 985/2003 of 5 June
      from 1 January 2003 to 23 July 2003 (204 days at                          2003 amending the antidumping duty measures imposed
      EUR 2,35 per day = EUR 479,40).                                           by Council Regulation (EC) No 1334/1999 on imports of
                                                                                magnesium oxide originating in the People’s Republic of
                                                                                China (1);
—     In the alternative, annul or vary contested Decision
      E(2003)738 Final of 25 March 2003.                                  —     order the Council of the European Union to pay all the
                                                                                costs.
—     Order the defendant to pay the applicant’s costs.
                                                                          Pleas in law and main arguments
                                                                          By the contested regulation the Council altered the nature of
                                                                          the antidumping duties on imports of magnesium oxide
                                                                          originating in the People’s Republic of China on the basis of a
                                                                          partial interim review. The applicant participated in the review
Pleas in law and main arguments
                                                                          procedure which preceded the contested regulation as an
                                                                          importer. It claims that the regulation infringes substantive
                                                                          Community law in that Council Regulation (EC) No 384/96 (2)
                                                                          was misapplied to a significant degree.
By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in                 The applicant argues that it was a misuse of discretion to
respect of amounts unduly paid to her after the expiry of her             initiate a partial interim review ex officio at all. The grounds
contract with the Commission, together with interest in respect           set out in the Commission’s notice do not in any event justify
of late payment. The action is directed against the part of the           a review. The Commission claimed that the fact that there was
contested decision concerning payment of interest in respect              no differentiation between sales made to related parties and
of late payment. The applicant maintains that she was wrongly             sales made to unrelated parties and between direct and indirect
required to pay interest since her inability to repay the principal       sales could ‘lead to difficulties in applying the legal provisions’.
sum due is attributable to her severe financial problems and              That is not true however. There could be no more difficulty in
her family’s health problems which constitute grounds of force            applying the legal provision.
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot            Further the statement of reasons given in the contested
be required to pay interest in respect of the period up to                regulation is different from that which had been set out in the
10 April 2001 because the Commission had tacitly waived its               notice relating to the initiation of the partial interim review.
claim to interest in respect of that period.                              That means that there was either a lack of formal reasons or a
                                                                          lack of sufficient grounds for altering the type of duty
                                                                          substantively. It was a misuse of discretion to differentiate in
                                                                          the contested regulation between trade with related parties and
                                                                          trade with unrelated parties and between direct and indirect
                                                                          sales in the Community.