CELEX: C1996/318/41
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 6 September 1996 by Giovanni Ballone Burini against the Court of Justice of the European Communities (Case T-138/96)

26 . 10 . 96           EN                   Official Journal of the European Communities                                 No C 318 /23
to be found in Article 2 ( 2 ) of the Regulation, applied to               In support of the application it is contended that the
trade marks containing the word ' butter'. Consequently, the               allegedly confusing syllables 'Voi ' in the trade marks do
Commission         informed         the   Finnish     Permanent            not establish any reference or connection whatsoever
Representation that the trade marks 'Voimariini ' and                      with butter outside the Member State where the said
'Voilevi ' may no longer be used , nothwithstanding their                  products have, until now, exclusively been sold, namely
registration long before the Regulation entered into force on              Finland .
1 January 1996 .
                                                                       Furthermore, in Finland the trade marks have been used for
— Annulment of the Commission Decision                                 such a long time, with all necessary and relevant
                                                                       clarifications as to the exact nature of the product, that there
                                                                       is no risk of confusion .
    The applicant claims that the Decision should be
    annulled on the following grounds :
    — there is an infringement of essential procedural
         requirements, in that the Decision was taken
         unilaterally without Valio being given any right to be
         heard in order to make its view known to the                  Action brought on 6 September 1996 by Giovanni Ballone
         Commission ,                                                  Burini against the Court of Justice of the European
                                                                                                  Communities
    — the Decision is based on an erroneous interpretation                                      Case T-138/96 )
         of the Regulation in that the Regulation does not                                       ( 96/C 318 /41 )
         apply to trade marks, which are to be distinguished
         from sales descriptions,
                                                                                       (Language of the case: Italian)
    — Valio 's trade marks should be entitled to derogations
         under Article 2 ( 2 ) of the Regulation, which relates to     An action against the Court of Justice of the European
         products the exact nature of which is clear from the          Communities was brought before the Court of First
         traditional user,                                             Instance of the European Communities on 6 September
                                                                       1996 by Giovanni Ballone Burini , represented by Giancarlo
    — the Decision is also obviously disproportionate .                Piersimoni, of the Ancona Bar, Italy, with an address for
                                                                       service in Luxembourg at the address of Marco Pantanetti ,
— Plea of illegality                                                   17 rue de Dudelange, Kayl .
    Alternatively, if the Court of First Instance finds that the       The applicant claims that the Court should :
    Decision is compatible with Regulation ( EC )
    No 2991 /94, Valio wishes to invoke the plea of illegality         — declare unlawful and therefore annul the decision of
    provided for in Article 184 of the EC Treaty on the                    18 July 1996 of the Selection Board rejecting his
    following grounds :                                                    application to take part in General Competition No
                                                                           CJ/A/ 11 at the Court of Justice of the European
    — the Regulation should have been based on                             Communities ,
         Article 100a or Article 235 of the Treaty and not ( or
         at least not exclusively ) on Article 43 ,                    — order the defendant to pay all the costs of the
                                                                           proceedings .
    — the Regulation infringes the principle of legal
         certainty by broadening, to an extent that is unclear,
         the definition of ' sales description ', which is clearly     Pleas in law and main arguments adduced in support
         set out in Directive 79/ 112/EC relating to the
         labelling of foodstuffs ,                                     The applicant challenges the decision of the Selection Board
                                                                       not to admit him to General Competition No CJ/A/ 1 1
    — the Regulation, which imposes an a priori ban on the             ( administrators with Italian legal training ) on the following
         use of certain trade marks, discriminates against             ground : 'the candidate does not satisfy the language
         holders of trade marks for spreadable fats in                 requirement provided for at paragraph 3B ( 2 ) of the notice
         comparison with holders of trade marks for other              of competition which states that, in the interests of the
         foodstuffs covered by Directive 79/ 112/EC which              service, good knowledge of French is required .' The
         imposes no a priori ban but requires that all the             candidate indicated in his application form that his
         circumstances under which a specific product is sold          knowledge of French was only ' average'. According to the
         are to be taken into account,                                 Selection Board , fulfilment of that requirement should have
                                                                       been declared when submitting the application , that is by
    — the Regulation also infringes the rule of                        28 September 1995 .
         proportionality, given that the provisions of
         Directive 79/ 112/EC relating to misleading                   The applicant seeks the annulment of the abovementioned
         statements show that it is possible to achieve the            decision on the grounds of misuse of powers, its illogical and
         same aim of consumer protection without                       irrational nature, lack of a statement of reasons, mistaken
         necessarily having recourse to an overall ban on the          assumptions and distortion of facts . The application is
         further use of certain trade marks .                          based on the following grounds :
 ---pagebreak--- No C 318/24            EN                   Official Journal of the European Communities                                   26 . 10 . 96
— the applicant claims that the indication ' average ' rather          — order the Commission to pay the whole of the costs .
    than 'good ' knowledge of French is intended merely for
    guidance and is not a requirement for admission to the
    competition. Paragraph 8 ( 3 ) of the notice of                    Pleas in law and main arguments adduced in support
    competition states that the third written test will 'consist
    of a number of questions intended to asess the ability to
    understand a text drafted in the applicant's second                Six French undertakings manufacturers of cheese preserved
    language' ( in this case, English ), while paragraph IX 2 ( a )    in brine made exclusively from ewe's milk which it markets
    specifies that knowledge of French will ' only' be taken           regularly as ' feta ', which is, moreover, a registered trade
    into account in the oral test .                                    mark, and a trade association whose members are the ewe's
                                                                       milk producers and the feta processors, challenge
                                                                       Commission Regulation ( EC ) No 1107/96 on the
Accordingly, marking the appropriate box under 'good' or               registration of geographical indications and designations of
'average' does not amount to an essential requirement for              origin under the procedure laid down in Article 17 of
admission to the competition but rather a mere criterion for           Council Regulation ( EEC ) No 2081 /92 and which provides
guidance to be taken into account when assessing                       that the name ' feta ' consitutes a registered designation of
knowledge of French in the oral test. Thus, supporting                 origin reserved to the Greek State .
documents relating to knowledge of languages are not
requested in the notice of competition, which leads to the
assumption that, on the contrary, such knowledge may be                Tha applicants consider that the Commission should not
verified only in the tests .                                           have agreed to apply as it did the exception provided for
                                                                       pursuant to Article 17 of the abovementioned Regulation
                                                                       inasmuch as the Greek application did not meet the
                                                                       conditions required by that Article since it relied on
                                                                       protection recently afforded at national level after the
                                                                       Council Regulation entered into force .
                                                                       The applicants further state that, according to the
                                                                       information available to them, feta cheese does not meet the
Action brought on 10 September 1996 by Société des caves               criteria laid down in order to benefit from protection as a
et des producteurs réunis de Roquefort and Others against              protected designation on the grounds that:
      the Commission of the European Communities
                        ( Case T-140/96 )
                                                                      — ' feta ' does not describe a product which originates in a
                          ( 96/C 318/42 )                                   specific region or place,
               (Language of the case: French)                         — the production, processing and preparation of 'feta ' do
                                                                            not take place in a defined geographical area ,
An action against the Commission of the European                      — the quality or characteristics of ' feta ' are not essentially
Communities was brought before the Court of First                           or exclusively due to a particular geographical
Instance of the European Communities on 10 September                       environment with its inherent natural and human
1996 by Société des caves et des producteurs réunis de                      factors, and
Roquefort, established in Roquefort-sur-Salzon ( France ),
Société fromagère corse, established in Bastia ( France ),
Société pour la valorisation du lait de Brebis du grand               — ' feta ' is a name that has become generic which , as such,
Sud-Ouest, established in La Canourgue ( France ),                         may not be protected .
Compagnie des fromages, established in Vire ( France ),
Fromager du Causse, established in Roquefort ( France ),
Alliance agro producteurs de lait de brebis et des industriels        Moreover, the applicants claim that, by accepting Greece's
de Roquefort ( France )- and Confédération générale des               application the Commission has disregarded the principal
producteurs de lait de brebis et des industriels de Roquefort,        objectives which had been entrusted to it by the Council,
established in Millau ( France ), represerited by Frédéric            namely, to improve the common agricultural policy in the
Ancel , of the Paris Bar, with an address for service in              interest of both producers and consumers . On the one hand,
Luxembourg at the Chambers of Pierrot Schiltz, 4 rue                  Germany, Denmark and the Netherlands produce and
Béatrix de Bourbon .                                                  market cheese under the disputed name, whereas Greece
                                                                      manufactures only half of the Community production . On
                                                                      the other, consumers are not better protected since the term
The applicant claims that the Court should :                          ' feta ' covers cheese prepared from ewe's, goat's or cow's
                                                                      milk or even a mixture of all three .
— annul Article 1 of Commission Regulation ( EC )
    No 1 107/96 of 12 June 1 996 in so far as it registers the
    name ' feta ' as a protected designation of origin,