CELEX: C2002/305/61
Language: en
Date: 2002-12-07 00:00:00
Title: Case T-312/02: Action brought on 10 October 2002 by Lucio Gussetti against Commission of the European Communities

7.12.2002              EN                     Official Journal of the European Communities                                        C 305/29
The applicants claim that the Court should:                              Action brought on 10 October 2002 by Lucio Gussetti
                                                                             against Commission of the European Communities
—     annul the decision adopted on 31 July 2002 by the
      Second Board of Appeal of the Office for Harmonisation                                       (Case T-312/02)
      in the Internal Market (Trade, Marks and Designs),
      concerning appeal No R 0363/2000-2, in so far as it
      rejects the application for registration of the mark ‘Limo’                                  (2002/C 305/61)
      for goods in Class 9, being ‘Lasers for non-medical
      purposes, in particular diode lasers, lasers for measuring
      technology, lasers for the treatment of materials, lasers                              (Language of the case: Italian)
      for the printing industry, lasers for material testing
      and quality control, lasers for data processing or data
      transmission; optical and/or electronic apparatus and
      instruments, in particular imaging systems, microoptical
      systems, control electronics, optical systems with inte-           An action against the Commission of the European Communi-
      grated electronics and/or light sources; lenses; optical           ties was brought before the Court of First Instance of the
      lenses, supplementary lenses, prisms, corrective lenses;           European Communities on 10 October 2002 by Lucio Gus-
      diffraction apparatus (microscopy)’ and in Class 10, being         setti, represented by Massimo Merola, avvocato.
      ‘Lasers for medical purposes’;
—     order the defendant to pay the applicant’s costs.                  The applicant claims that the Court should:
                                                                         —      annul the decision of the Directorate General Adminis-
                                                                                tration of the Commission, notified by letter ADMIN B.3
                                                                                D(02) 8305 of 15 February 2002 by which, pursuant to
                                                                                Article 67(2) of the Staff Regulations, the Administration,
Pleas in law and main arguments                                                 with effect from 1 June 2001, retroactively deducted
                                                                                EUR 273.48 from his monthly salary;
The Community trade            the word mark ‘LIMO’ — appli-             —      order the Commission to pay the costs.
mark applied for:              cation No 1290022
Goods or services:             Goods in Classes 9, 10 and 11
                               (including inter alia lasers for non-     Pleas in law and main arguments
                               medical purposes, lasers for medi-
                               cal purposes and lighting appar-
                               atus and installations)
                                                                         The applicant in the present case is an official working for the
                                                                         defendant. Pursuant to Article 67(2) of the Staff Regulations,
Decision         contested     refusal of registration by the            EUR 68,48, corresponding to family allowances paid by the
before the Board of            examiner                                  Belgian ‘allocations familiales pour travailleurs salariés’ scheme
Appeal:                                                                  to his late wife in respect of their dependant child, was being
                                                                         deducted from his monthly Community salary.
Decision of the Board of       rejection of the application in
Appeal:                        respect of goods in Classes 9 and
                               10 and leave for publication of           The present case is based on a change, in accordance with the
                               the application in respect of goods       Belgian Law of 12 August 2000, in the practice of the Belgian
                               in Class 11                               authorities consisting in no longer deducting the Communities
                                                                         orphan’s pension.
Grounds of claim:              no absolute bars to registration
                               under Article 7(1)(b) and (c) of
                               Regulation (EC) No 40/94 (1).             In his complaint, the applicant raised the difficulty of consist-
                                                                         ency between the Communities and Belgian orphan’s pensions,
                                                                         pointing out that the EUR 68,48 being withheld was not
                                                                         attributable to family allowances since his late wife was no
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         longer in receipt of them. The defendant was wrong to
     Community trade mark (OJ 1994 L 11, p. 1).                          consider the sums paid by the Belgian authorities by way of
                                                                         orphan’s allowances and those paid by the Communities’
                                                                         administration to be of like nature within the meaning of
                                                                         Article 67(2) of the Staff Regulations. Accordingly, the
                                                                         deduction in question is per se an error.
 ---pagebreak--- C 305/30               EN                      Official Journal of the European Communities                                        7.12.2002
In support of his claims, the applicant alleges:                          They claim that the Commission manifestly erred in fact and
                                                                          in law in finding that, with respect to anti-doping rules, the
—     the retroactive application of the contested decision               IOC is not an undertaking for the purposes of Community
      infringes the principles underlying recovery of sums                law. It is clear that the IOC cannot be treated in the same way
      overpaid and, in particular, Article 85 of the Staff                as a public institution providing social security services and
      Regulations as well as the principles of legitimate expec-          that it does not exercise the prerogatives of a public authority.
      tations and sound administration;                                   Moreover, the rules in question affect the conduct of all
                                                                          athletes on the market for the sports which the applicants
                                                                          perform.
—     for the purpose of Article 67 of the Staff Regulations, the
      orphan’s pension is not of like nature to the dependent
      child allowance. Therefore, the payments made by the
      administration until February 2002 were not manifestly              In addition, the applicants claim that the Commission commit-
      irregular; rather, it is the deductions under the contested         ted a manifest error of assessment in finding that, in the
      decision which are in point of fact irregular.                      present case, the limitation on the freedom of athletes is not a
                                                                          restriction of competition within the meaning of Article 81
                                                                          EC, on the ground that such a limitation is inherent in the
                                                                          organisation and smooth running of competitive sport. The
                                                                          Commission’s findings constitute a manifest misapplication of
                                                                          the criteria laid down by the Court of Justice in paragraph 97
                                                                          of the judgment in Wouters ( 1) and the restrictive effects of the
                                                                          IOC rules in question are clearly not inherent in the pursuit of
                                                                          the praiseworthy aims of the campaign against doping.
Action brought on 11 October 2002 by David Meca-
                                                                          According to the applicants, it is for the Commission — in
Medina and Igor Majcen against the Commission of the                      accordance with the ‘necessity test’ and/or the ‘proportionality
                    European Communities
                                                                          test’ — to declare that a rule which has been proven to have
                                                                          no scientific basis can in no way satisfy the requirements of
                          (Case T-313/02)                                 such tests.
                         (2002/C 305/62)
                                                                          Finally, the Commission’s assessment is manifestly incorrect in
                                                                          so far as it fails to recognise Article 49 EC as having any direct
                   (Language of the case: French)                         horizontal effect. It must be found that, since they do not
                                                                          satisfy a ‘test of necessity’, the contested IOC rules also infringe
                                                                          Article 49 EC.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                (1 ) Case C-309/99 Wouters [2002] ECR I-1577.
European Communities on 11 October 2002 by David Meca-
Medina, residing in Barcelona (Spain), and Igor Majcen, residing
in Ljubljana (Slovenia), represented by J.-L. Dupont, lawyer.
The applicants claim that the Court should:
—     annul the Commission’s decision notified to the appli-
      cants on 5 August 2002 rejecting the complaint of                   Action brought on 15 October 2002 by Marie-Claude
      31 May 2001 against the International Olympic Com-                  Girardot against the Commission of the European Com-
      mittee;                                                                                             munities
                                                                                                    (Case T-316/02)
Pleas in law and main arguments
                                                                                                    (2002/C 305/63)
By the contested decision, the Commission rejected the
complaint lodged by the applicants, who are professional                                       (Language of the case: French)
swimmers, that certain practices and rules of the International
Olympic Committee (IOC) concerning the fight against doping
were contrary to European competition law. The applicants
objected, in particular, to the fact that, in connection with the
detection of the substance nandrolone, the IOC continues to               An action against the Commission of the European Communi-
apply a maximum level which has now been found to lack                    ties was brought before the Court of First Instance of the
scientific merit.                                                         European Communities on 15 October 2002 by Marie-Claude