CELEX: C1999/086/51
Language: en
Date: 1999-03-27 00:00:00
Title: Action brought on 21 January 1999 by DKV Deutsche Krankenversicherungs AG against the Office for Harmonisation in the Internal Market (trade marks and designs) (Case T-19/99)

27.3.1999             EN                 Official Journal of the European Communities                                      C 86/29
Instance of the European Communities on 21 January                  in the same position as if the reference period giving rise
1999 by Cordis Obst- und Gemüsegrosshandel GmbH,                    to entitlement had covered the years 1995 to 1997. The
Ostrau (Germany), represented by Gert Meier,                        applicant maintains that Article 6(3) of that regulation
Rechtsanwalt, Jakordenstraûe 10, Köln.                              should also be annulled as an ancillary because reduction
                                                                    of the quantity allocated was contrary to the GATT. The
                                                                    enactment of Community legislation contrary to the
The applicant claims that the Court should:                         GATT after final judgment by a legal organ of the WTO
                                                                    that an infringement had taken place represented a misuse
                                                                    of powers by the Commission giving rise to a right to
1. order the Commission to compensate the applicant for             compensation.
    its loss suffered as a result of
                                                                    In the applicant's view, however, compensation in kind
    (a) the Commission's adopting the years 1994 to 1996            through the issuing of import rights capable of serving as
         as the reference period for traditional operators,         a basis of reference for the future is possible in this case.
    (b) the quantity provisionally approved by the                  (1) OJ C 94, 28.3.1998, p. 27.
         competent authorities being reduced by application         (2) Commission Regulation (EC) No 2362/98 of 28 October 1998
         of the adjustment coefficient;                                 laying down detailed rules for the implementation of Council
                                                                        Regulation (EEC) No 404/93 regarding imports of bananas
                                                                        into the Community (OJ L 293, 31.10.1998, p. 32).
2. order the Commission, in so far as the quantities to
    which the applicant is legitimately entitled have been
    wrongly reduced, to make good that loss by allocating
    to it additional licences in the future (compensation in
    kind);
                                                                    Action brought on 21 January 1999 by DKV Deutsche
                                                                    Krankenversicherungs AG against the Office for
3. order the Commission to pay the costs.
                                                                    Harmonisation in the Internal Market (trade marks and
                                                                                                designs)
Pleas in law and main arguments adduced in support:                                         (Case T-19/99)
                                                                                            (1999/C 86/51)
The applicant has already brought an action against the
Commission in Case T-612/97 (1), challenging the                                    (Language of the case: German)
Commission's decision refusing the applicant additional
licences by way of compensation for hardship.
                                                                    An action against the Harmonisation in the Internal
                                                                    Market (trade marks and designs) was brought before the
The applicant now claims compensation on the ground                 Court of First Instance of the European Communities on
that, after the entry into force of Regulation (EC)                 21 January 1999 by DKV Deutsche Krankenversicherungs
No 2362/98 (2), it applied for the allocation of a reference        AG,       of Cologne,       represented     by Stephan        v.
quantity of 2 591 427 kg of bananas for the years 1994 to           Petersdorff-Campen, of Rechtsanwälte von Rospatt, von
1996, but the quantity allocated was reduced by                     der Osten, Prost, Düsseldorf, with an address for service
application of the adjustment coefficient.                          in Luxembourg at the Chambers of Marc Loesch, Loesch
                                                                    and Wolter, 11 Rue Goethe, Luxembourg.
The applicant argues that by adopting the years 1994 to
1996 as the reference period for the year 1999, the                 The applicant claims that the Court should:
Commission unlawfully put the reference period back by a
year, given that in accordance with Article 19(2) of
                                                                    Ð alter the contested decision and order the defendant to
Regulation (EEC) No 404/93 the reference period was the
                                                                         register the sign COMPANYLINE, application number
period from 1995 to 1997. Imports in 1994 had already
                                                                         319038, for the services claimed in class 36 (insurance
been used three times for reference purposes, namely in
                                                                         bodies; financial bodies) as a Community trade mark
the years 1996 to 1998. The applicant maintains that the
                                                                         in the register of Community trade marks subject to a
putting back of the reference period is arbitrary, a misuse
                                                                         disclaimer by the applicant that it will not claim any
of powers and insufficiently reasoned under Article 190 of
                                                                         exclusive rights in the constituent elements (namely
the EC Treaty. It also alleges infringement of Article I:1 of
                                                                         COMPANY and LINE) of the sign;
the GATT, Articles II and XVII of the GATS and
Articles I:2 and I:3 of the WTO Agreement on Licences.
                                                                         In the alternative
Moreover, as an ancillary, Article 4(2) of Regulation (EC)
No 2362/98 should be annulled for arbitrariness, lack of                 to annul the contested decision.
reasoning and misuse of powers, and the applicant placed
 ---pagebreak--- C 86/30              EN                 Official Journal of the European Communities                                  27.3.1999
Pleas in law and main arguments adduced in support:                Pleas in law and main arguments adduced in support:
Mark in question:                                                  The Commission refused Denkavit Nederland BV's request
                                                                   for access to the Belloli report concerning measures to
                                                                   combat swine fever in the Netherlands.
COMPANYLINE' Ð Application No 000 319038
                                                                   Denkavit's request was based on Commission Decision
Goods or services:                                                 94/90/ECSC, EC, Euratom of 8 February 1994 concerning
                                                                   access to Commission documents.
Insurance bodies; financial bodies (class 36)'
                                                                   The Commission's refusal was based on two grounds.
Decision contested before the Board of Appeal
                                                                   1. T h e       comunication         of    the    report    is
                                                                       contrary to the protection of the general
Refusal of registration by the examiner                                interest (namely inspections and inve-
                                                                       stigations)
Pleas in law:
                                                                   According to the Commission, the investigation has not
                                                                   yet been concluded, and is still to be the subject of
Ð infringement of Article 7(1)(b) of Regulation (EC)               consultation between the Commission and the
    No 40/94                                                       Netherlands authorities.
    Ð misapplication of Article 7(1)(c) of Regulation              Referring to press articles, the applicant submits that the
        (EC) No 40/94                                              investigation has been concluded and that there is no
                                                                   question of future consultation, meaning that the refusal is
    Ð failure to take into account Article 12(b) of                based on an error of fact.
        Regulation (EC) No 40/94
                                                                   According to the Commission, the report concerns
                                                                   breaches of Community law, and publication would
                                                                   undermine any legal proceedings which may be brought.
                                                                   According to Denkavit, the Netherlands State, against
Action brought on 20 January 1999 by Denkavit                      which those proceedings would be brought, has already
Nederland BV against Commission of the European                    been in possession of the report for some time and the
                        Communities                                differences of opinion between the Netherlands State and
                       (Case T-20/99)                              the Commission as regards the content have been made
                                                                   common knowledge by the press, meaning that the reason
                       (1999/C 86/52)                              for the refusal is also incorrect in that respect.
               (Language of the case: Dutch)                       2. T h e        requirement        of    protection       for
                                                                       b u s i n e s s s e c r e c y.
An action against the Commission of the European
Communities was brought before the Court of First                  According to Denkavit, the Commission should have given
Instance of the European Communities on 20 January                 an abstract description of the type of information
1999 by Denkavit Nederland BV, whose registered office             concerning pig farms contained in the report, without
is at Voorthuizen (The Netherlands), represented by E. A.          referring to the undertakings concerned by name.
Buys, Advocaat.
                                                                   Furthermore, according to Denkavit, business secrets are
The applicant claims that the Court should:                        information which can affect the competitive position of
                                                                   the undertakings concerned. The information in the Belloli
                                                                   report is nothing of the kind, since it concerns the manner
Ð annul the Commission decision of 17 November 1998                in which the pig farms concerned reacted to the measures
    refusing to publish documents,                                 adopted by the Netherlands authorities to combat swine
                                                                   fever. The report therefore contains no business secrets.
Ð order the Commission to pay the costs of the
    proceedings.