CELEX: C2003/239/42
Language: en
Date: 2003-10-04 00:00:00
Title: Case T-264/03: Action brought on 28 July 2003 by Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. against the Commission of the European Communities

C 239/22              EN                          Official Journal of the European Union                                     4.10.2003
Action brought on 18 July 2003 by Celltech R&D Limited                    Action brought on 28 July 2003 by Jürgen Schmoldt,
against the Office for Harmonisation in the Internal                      Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband
          Market (Trade Marks and Designs) (OHIM)                         der Deutschen Bauindustrie e.V. against the Commission
                                                                                           of the European Communities
                        (Case T-260/03)
                                                                                                   (Case T-264/03)
                        (2003/C 239/41)
                                                                                                   (2003/C 239/42)
                  (Language of the case: English)                                            (Language of the case: German)
An action against Office for Harmonisation in the Internal                An action against the Commission of the European Communi-
Market (Trade Marks and Designs) (OHIM) was brought before                ties was brought before the Court of First Instance of the
the Court of First Instance of the European Communities on                European Communities on 28 July 2003 by Jürgen Schmoldt,
18 July 2003 by Celltech R&D Limited, Slough, (United                     Dallgow-Döberitz (Germany), Kaefer Isoliertechnik GmbH &
Kingdom), represented by D. Alexander, QC, and N. Jenkins,                Co. KG, Bremen (Germany), and Hauptverband der Deutschen
lawyer.                                                                   Bauindustrie e.V., Berlin (Germany), represented by
                                                                          H.-P. Schneider, Hanover.
The applicant claims that the Court should:
                                                                          The applicants claim that the Court should:
—     annul the Decision of the Second Board of Appeal of the             —     annul Article 1 of, and Table 1 of the Annex to,
      Office for Harmonisation in the Internal Market (Trade                    Commission Decision 2003/312/EC of 9 April 2003,
      Marks and Designs) (‘OHIM’) of 19 May 2003 (Case                          published on 8 May 2003 (OJ 2003 L 114, p. 50) and
      R0659/2002-2) in whole or in part;                                        notified under no C(2003) 1161, on the publication of
                                                                                the reference of European standards relating to the
—     order OHIM to pay the costs of this Application.                          thermal insulation products EN 13162:2001 to EN 1
                                                                                13172:2001, with the result that Commission communi-
                                                                                cation 2001/C 358/08 of 15 December 2001 (OJ 2001
                                                                                C 358, p. 9), in so far as it concerns the products EN
                                                                                13162:2001 to EN 1 13172:2001, and Commission
Pleas in law and main arguments                                                 communication 2001/C 120/06 of 22 May 2003 (OJ
                                                                                2003 C 120, p. 17) be removed from the Official Journal
                                                                                of the European Union;
Trade mark concerned:        ‘CELLTECH’ —             Application
                             No 1731678.                                  —     order the defendant to pay the costs.
Products or services:        Pharmaceutical, veterinary and
                             sanitary preparations, compounds
                             and substances (Class 5), surgical,          Pleas in law and main arguments
                             medical, dental and veterinary
                             apparatus        and     instruments
                             (Class 10), research and develop-
                                                                          On 23 May 2001, the European Committee for Standardisation
                             ment, consultancy services, all
                             relating to the biological, medical          adopted ten standards for thermal insulation products, the
                                                                          references for which were published in the Official Journal of
                             and chemical sciences (Class 41).
                                                                          the European Communities of 15 December 2001 (1). The Federal
                                                                          Republic of Germany subsequently objected to, inter alia,
Challenged       decision    Refusal of registration by the               these ten standards for thermal insulation products under
before the Board of          examiner.                                    Article 5(1) of Directive 89/106/EEC ( 2). The objection was
Appeal:                                                                   rejected by the contested decision.
Grounds submitted:           Infringement of Article 7(1)(b) of
                             the Community Trade Mark Regu-               The applicants rely on both formal and substantive grounds.
                             lation 40/94/EEC.                            The applicants take the view that procedural errors were
                                                                          committed in so far as, contrary to Article 5(1) of Directive
                                                                          89/106, the Standing Committee on Construction failed to
                                                                          issue an opinion and in so far as the statement of reasons in
 ---pagebreak--- 4.10.2003              EN                          Official Journal of the European Union                                            C 239/23
the recitals to the contested decision is inadequate. The                  Pleas in law and main arguments
publication of the standards in the Official Journal is likewise
defective as no reference is made to the fact that the standards,
for the most part, and their annexes (with the exception of
Annex ZA) are not binding and that thermal installation                    In the context of an invitation to tender for the supply of
products only need to comply with Annex ZA in order to bear                artificial fertiliser to North Korea, the applicant was awarded
the EC mark. As regards the substance, the applicants are of               the contract by the Commission. Since the artificial fertiliser
the opinion that the standards in question are incomplete,                 supplied by the applicant was late in reaching its destination,
unclear, imprecise and contradictory and that the system of                the Commission withheld from the applicant a sum of
standards is incoherent. Moreover, the use of the EC mark is               EUR 346 221,20 and refused, finally by letter of 23 May 2003,
misleading since it does not prove that the product complies               to pay the sum concerned to the applicant.
with all European standards but rather only with Annex ZA to
those standards. The contested decision thus fails to meet the
requirements of Directive 89/106, the principle of pro-                    The applicant submits that the delay in delivering the fertiliser
portionality (third paragraph of Article 5 EC) and the require-            can be attributed to restrictions on the export of fertiliser from
ments of consumer protection (Article 95(3) EC).                           China, where it intended to procure the fertiliser for export.
                                                                           As those restrictions were wholly unforeseeable, they may be
                                                                           regarded as a case of force majeure and, consequently, in
( 1) OJ C 358 of 15 December 2001, p. 9.                                   accordance with Article 22(4) of Regulation No 2519/97 (1),
( 2) Council Directive 89/106/EEC of 21 December 1989 on the               no sum may be retained. The applicant also submits that no
     approximation of laws, regulations and administrative provisions      loss was suffered as a result of the late delivery and that
     of the Member States relating to construction products (OJ L 40       retention of the amount is therefore disproportionate to the
     of 11 February 1989, p. 12) as amended by Directive 93/68/EEC         failure to observe the delivery period and is in breach of the
     (OJ L 220 of 30 August 1993, p. 1).
                                                                           Community-law principle of proportionality. The retention
                                                                           also infringes provisions of the Belgian Civil Code, since the
                                                                           Commission did not previously expressly call on the applicant
                                                                           to fulfil that contractual obligation.
                                                                           (1 ) Commission Regulation (EC) No 2519/97 of 16 December 1997
                                                                                laying down general rules for the mobilisation of products to be
                                                                                supplied under Council Regulation (EC) No 1292/96 as Com-
Action brought on 23 July 2003 by Helm Düngemittel                              munity food aid (OJ L 346 of 17.12.1997, p. 23).
GmbH against the Commission of the European Com-
                              munities
                         (Case T-265/03)
                         (2003/C 239/43)
                   (Language of the case: German)                          Action brought on 24 July 2003 by Anna Maria Roccato
                                                                           (Mrs Pinson) against the Commission of the European
                                                                                                      Communities
An action against the Commission of the European Communi-                                            (Case T-267/03)
ties was brought before the Court of First Instance of the
European Communities on 23 July 2003 by Helm Düngemittel
GmbH, Hamburg (Germany), represented by Dr W.P. Wasch-                                               (2003/C 239/44)
mann, lawyer.
                                                                                                (Language of the case: French)
The applicant claims that the Court should:
—      annul the Decision of the Commission of the European
       Communities of 23 May 2003 concerning retention of a                An action against the Commission of the European Communi-
       sum of EUR 346 221,20;
                                                                           ties was brought before the Court of Justice of the European
                                                                           Communities on 24 July 2003 by Anna Maria Roccato,
—      order the Commission of the European Communities to                 residing in Brussels, represented by Georges Vandersanden and
       pay the costs.                                                      Laure Levi, lawyers.