CELEX: C2003/184/107
Language: en
Date: 2003-08-02 00:00:00
Title: Case T-196/03: Action brought on 3 June 2003 by European Federation for Cosmetic Ingredients (EFfCI) against the European Parliament and the Council of the European Union

C 184/50              EN                          Official Journal of the European Union                                           2.8.2003
Pleas in law and main arguments                                           Action brought on 3 June 2003 by European Federation
                                                                          for Cosmetic Ingredients (EFfCI) against the European
Applicant for Community         Marine Enterprise Projects So-                 Parliament and the Council of the European Union
trade mark:                     cietà Unipersonale di Alberto
                                Fiorenzi S.r.l.
                                                                                                    (Case T-196/03)
Community       trade   mark    The figurative mark ‘BAIN-                                         (2003/C 184/107)
sought:                         BRIDGE’ — Application for re-
                                gistration No 940007 requested                                (Language of the case: English)
                                for products in Classes 18
                                (Leather and imitations of
                                leather, animal skins, hides;
                                                                          An action against the European Parliament and the Council of
                                trunks and travelling bags; um-
                                                                          the European Union was brought before the Court of First
                                brellas, parasols and walking
                                                                          Instance of the European Communities on 3 June 2003 by
                                sticks; whips, harness and sadd-
                                                                          European Federation for Cosmetic Ingredients (EffCI), Brussels,
                                lery) and 25 (Clothing, foot-
                                                                          Belgium, represented by Mr K. Maldegem and Mr C. Mereu,
                                wear, headgear).
                                                                          lawyers.
                                                                          The applicant claims that the Court should:
Proprietor of mark or sign      The Applicant
cited in the opposition pro-
                                                                          —     Declare the application applicable and well founded, or, in
ceedings:
                                                                                the alternative, join the questions on admissibility to the
                                                                                examination of the substance
Mark or sign cited in op-       Italian      figurative      marks        —     Order the partial annulment of Article 1 of Directive
position:                       ‘BRIDGE’ (Reg. No 370836 and                    2003/15/EC (1) of the European Parliament and the
                                704338) for products in                         Council of 27 February 2003 amending Council Directive
                                Class 25, the figurative mark                   76/768/EEC (2) on the approximation of the laws of the
                                ‘THE BRIDGE BASKET’ (Reg.                       Member States relating to cosmetic products, so as to
                                No 593651) for products in                      remove the new Article 4a (2) and (2.1) ; Article 4b and
                                Classes 18 and 25, trade name                   the new sub-paragraph added to Article 6(3) of the
                                ‘THE         BRIDGE’          (Reg.             Directive 76/768/EEC.
                                No 642952) for products in
                                Class 25, the three-dimensional           —     order the defendant to pay all costs and expenses in the
                                marks ‘THE BRIDGE’ (Reg.                        proceedings
                                No 704372 and No 633349)
                                for products in Classes 18 and
                                25, the trade name ‘FOOT-
                                BRIDGE’ (Reg. No 710102) for              Pleas in law and main arguments
                                products in Classes 18 and 25,
                                the figurative mark ‘THE
                                BRIDGE WAYFARER’ (Reg.                    The applicant is a European Economic Interest Grouping
                                No 721569) for products in                representing European manufacturers of cosmetic ingredients.
                                Classes 18 and 25, the trade              The provisions of Directive 2003/15/EC which it attacks
                                                                          concern the prohibition of the performance of animal testing
                                name ‘OVER THE BRIDGE’
                                                                          on chemicals used as ingredients in cosmetic products as well
                                (Reg. No 630763) for products
                                in Classes 18 and 25, and the             as the prohibition of all uses in cosmetic products of certain
                                trade name ‘THE BRIDGE’ (Reg.             chemicals classified as carcinogenic, mutagenic or toxic for
                                No 642953) for products in                reproduction.
                                Class 18.
                                                                          In support of its application to annul the provisions relating to
                                                                          the prohibition of animal testing, the applicant advances the
Decision of the Opposition      Dismissal of the opposition.              following grounds:
Division:
                                                                          —     The alleged infringement of essential procedural require-
                                                                                ments. The applicant claims that the contested measure is
                                                                                based on an incorrect legal basis. According to the
Decision of the Board of        Dismissal of the appeal.                        applicant, although it is based on Article 95 of the EC
Appeal:                                                                         treaty it is not intended to eliminate obstacles to the free
                                                                                movement of goods or remove distortions of competition.
                                                                                Further, the applicant advances an alleged misuse of
Pleas in law:                   Misapplication of Article 8(1)(b)               powers, in that the contested measure is, according to
                                of Regulation (EC) No 40/94                     the applicant, intended to promote the welfare of animals
                                (Risk of confusion).                            which is not part of the internal market objectives of the
                                                                                EC. Finally, the applicant claims that the contested
                                                                                measure does not contain adequate reasons and due
                                                                                motivation.
 ---pagebreak--- 2.8.2003               EN                           Official Journal of the European Union                                          C 184/51
—     An alleged infringement of the EC Treaty and of                       European Communities on 30 May 2003 by Proras S.r.l.
      secondary Community legislation in that the contested                 Engineering and Contracting, represented by Gian Michele
      measure actually infringes Article 95(3) and Directive 76/            Roberti, Alessandro Maria Lerro, Marco Simone Mariani, Paolo
      768/EEC which require Community harmonisation                         Ziotti and Isabella Perego, lawyers.
      measures to be based on a ‘high level of protection’ of
      health, safety, environment and consumers.
                                                                            The applicant claims that the Court should:
—     The applicant also advances a manifest error of assess-
      ment in that the contested measure allegedly fails to take
      account of scientific assessments made by the Community               —     annul the decision of the European Commission
      advisory bodies.                                                            contained in the letter of 19 March 2003 from Mr P.B.
                                                                                  Knudsen, Director of Directorate A — Office of Coopera-
                                                                                  tion, EuropeAid, D(2003) D/8511, ‘Proras exclusion from
In support of its application to annul the provisions relating to                 participation in a TACIS procurement procedure’;
the prohibition of carcinogenic and similar substances, the
applicant advances the following grounds:
                                                                            —     find the Commission liable in damages for having
—     An alleged manifest error of assessment and inconsistency                   adopted the abovementioned decision;
      with Directive 76/768/EEC. According to the applicant the
      contested measure is inconsistent with the risk-based
      approach in the latter Directive.                                     —     order the defendant to make good the injury suffered by
                                                                                  the applicant as a result of that damage, quantified at
                                                                                  EUR 1 177 638,24 and further order the publication of
—     An alleged infringement of an essential procedural                          any judgment to that effect;
      requirement, in that the prohibition should have been
      made subject to the prior consultation and positive
      opinion of the Scientific Committee on Cosmetic Products              —     order the Commission to pay the costs.
      and Non Food Products intended for Consumers, in
      accordance with Article 8(2) of Directive 76/768/EEC.
—     An alleged infringement Article 95(3) of the EC Treaty
      and the rules adopted for its application,
                                                                            Pleas in law and main arguments
Further, the applicant alleges that both contested provisions
infringe superior principles of Community law, namely the
principles of proportionality, legal certainty and legitimate
expectations, the precautionary principle, the principle of                 By the present action, Proras S.r.l. Engineering and Contracting
consistency, the principle of equal treatment and the need to               (hereinafter ‘Proras’ or ‘the applicant’) is challenging the deci-
consider the balance of interests.                                          sion of the Commission contained in the letter of 19 March
                                                                            2003 from Mr P.B. Knudsen, Director of Directorate A —
                                                                            Office of Cooperation, EuropeAid, D(2003) D/8511, ‘Proras
(1) OJ L 66, 11.3.2003, p. 26-35.                                           exclusion from participation in a TACIS procurement proce-
(2) OJ L 262, 27.9.1976, p. 169-200.                                        dure’ by which it imposes, on the basis of Article 93(c) and (f)
                                                                            in conjunction with Article 96 of Regulation No 1605/
                                                                            2002, (1) a sanction consisting in exclusion for two years
                                                                            from tender procedures organised in the context of external
                                                                            actions funded by the Commission in the framework of the
                                                                            TACIS programme and, pursuant to Articles 235 and 288 EC,
                                                                            compensation for the damage suffered as a result of that
                                                                            decision. That decision was adopted after a procedure which
                                                                            contained a number of irregularities, denied by the applicant,
Action brought on 30 May 2003 by Proras S.r.l. Engi-                        which, according to the defendant, were committed in the
neering and Contracting against Commission of the                           course of tender procedure SCR — E/110983/D/S/NI,
                      European Communities                                  published by the unit ‘Programma de apoyo al Sector Educa-
                                                                            tivo en Nicaragua’ and financed under the ‘ALA’ programme.
                          (Case T-197/03)
                                                                            In support of its action for annulment, Proras puts forward
                         (2003/C 184/108)                                   four pleas in law. First, the applicant claims that the EuropeAid
                                                                            department, by adopting as a legal basis for the contested
                                                                            decision a provision — such as Regulation No 1605/2002 —
                    (Language of the case: Italian)                         which had not entered into force at the material time, has
                                                                            infringed the principles of retroactivity, lawfulness of sanctions
                                                                            and legitimate expectations. So far as concerns procedure, the
                                                                            applicant criticises the aforementioned department for failing
An action against the Commission of the European Commu-                     to inform it of the steps it intended to take in terms of the
nities was brought before the Court of First Instance of the                sanctions it proposed to impose on it or, at the very least,