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7.6.

2003 EN Official Journal of the European Union C 135/33

however, provides that operations to colour sugar or to form Commission, it argues, was wrong to turn down the request
sugar lumps constitute insufficient processing to confer OCT for a derogation on the ground that, both for sugar from an
origin. Those products of the applicant thus no longer qualify ACP country and for sugar from a non-ACP country, the added
for OCT origin. value after processing by the applicant came to more than
45 %. According to the applicant, Article 37(7) of Annex III to
the OCT Decision makes no provision for such a comparison
and consequently makes no provision for any such ground for
The Kingdom of the Netherlands subsequently applied for a rejection of the request for a derogation.
derogation in favour of the applicant. That request was rejected
in the contested decision.
(1 ) Council Decision 91/482/EEC of 25 July 1991 on the association
of the overseas countries and territories with the European
Economic Community (OJ 1991 L 263, p. 1).
The applicant first of all raises an objection that Article 5(1)(g) (2 ) Appendix 2 to Annex III to Council Decision 2001/822/EC of
of Annex III to the OCT Decision is unlawful. In the applicant’s 27 November 2001 on the association of the overseas countries
view, it is incorrect to state that operations to colour sugar or and territories with the European Community (‘the OCT Decision’)
to form sugar lumps constitute insufficient processing for the (OJ 2001 L 324, p. 1).
(3 ) Council Decision 2001/822/EC of 27 November 2001 on the
purpose of conferring OCT origin. The applicant submits that
association of the overseas countries and territories with the
this provision infringes the principle of non-discrimination European Community (‘the OCT Decision’) (OJ 2001 L 314, p. 1).
and that it is arbitrary and at variance with the principles of
the protection of legitimate expectations and of legal certainty.

The applicant goes on to argue that the Commission had no


power in view of the fact that the contested decision was
adopted after the expiry of the decision-making period of 75
working days laid down in Article 37(8)(a) of Annex III to the Action brought on 28 March 2003 by Arran Aromatics
OCT Decision. The applicant contends that the request for a Limited, Mr Iain Russel and Mr Allastair Rennick against
derogation ought therefore to be deemed to have been the Commission of the European Communities
accepted pursuant to Article 37(8)(b) of Annex III to the OCT
Decision.
(Case T-109/03)

The applicant concludes by arguing that there has been a (2003/C 135/54)
breach of Article 37 of Annex III to the OCT Decision and a
manifest misappraisal of the facts. The applicant submits that (Language of the case: English)
the Commission is confusing the conditions of Article 37 of
Annex III to the OCT Decision.

An action against the Commission of the European Communi-


The applicant argues that cumulation of origin does not ties was brought before the Court of First Instance of the
represent an alternative solution for it. Importation of ACP European Communities on 28 March 2003 by Arran Aro-
sugar cannot be justified in view of the high price. Such sugar, matics Limited, Isle of Arran, Scotland, Mr Iain Russel, Isle of
it argues, is also unsuitable with regard to quality. The Arran, Scotland, and Mr Allastair Rennick, Isle of Arran,
applicant submits that the condition governing derogation set Scotland, represented by Mr C. Pouncey, Solicitor and
out in Article 37(4) of Annex III to the OCT Decision is Mr L. Van Den Hende, lawyer.
thereby also satisfied.

The applicant claims that the Court should:

The applicant goes on to argue that, under Article 37(3)(b) of — Order the defendant to pay damages pursuant to
Annex III to the OCT Decision, application of the existing Article 288 EC for the losses sustained by them through
rules of origin would significantly reduce its prospects of the breaches of community law set out in the application,
continuing to export to the EC. In its view, the Commission is all sums to be increased with compensatory interest at a
wrong to impose as a necessary condition for a derogation the rate of 8 % to be applied from the day on which the
requirement that application of the existing rules of origin damage materialised;
would lead to cessation of its activities.
— Order the defendant to pay legal interest on such sums as
are found to be due at a rate of 8 %;
The applicant further contends that the Commission misap-
plied Article 37(7) of Annex III to the OCT Decision. The — Order the defendant to pay the costs of the proceedings.
C 135/34 EN Official Journal of the European Union 7.6.2003

Pleas in law and main arguments the Court of First Instance of the European Communities on
27 March 2003 by L’Oréal S.A., Paris, France, represented by
Mr X. Buffet Delmas d’Autane, lawyer.
In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98 ( 1) and Commission Regulation
No 2362/98 (2), was WTO-incompatible. Following that ruling, A further party to the proceedings before the Board of Appeal
the United States, with WTO authorisation, adopted certain was Revlon (Suisse) S.A.
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company The applicant claims that the Court should:
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of that company. The — annul the decision of the Fourth Board of Appeal of
applicants allege that as a result of the retaliatory measures, the OHIM of 15 January 2003 regarding the appeal
the first applicant’s sales to the US decreased substantially No R0396/2001-4 relating to the opposition proceedings
causing it to suffer serious material losses and subjecting the No B 215048 (Community application No 1011576);
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application — order that the costs of the action and the appeal are to be
they submit that, by adopting Regulation 2362/98, the borne by the OHIM.
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality, Pleas in law and main arguments
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
Applicant for the Com- L’Oréal S.A.
breach of law is manifest and serious and the rules of law
munity trade mark:
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the Community trade mark The word mark ‘FLEXI AIR’ for
applicants, entitling the latter to compensation. sought: certain goods in class 3 (Sham-
poos; gels, mousses and balms;
essential oils; ...) (Application
( 1) OJ L 210, 28.7.1998, p. 28. No 1011576)
( 2) OJ L 293, 31.10.1998, p. 32.
Proprietor of mark or Revlon (Suisse) S.A.
sign cited in the oppo-
sition proceedings:

Mark or sign cited in Several national word marks


opposition: ‘FLEX’ for certain goods in class 3
and 34 (soaps, essential oils,
Action brought on 27 March 2003 by L’Oréal S.A. against Shampoo, ...)
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)
Decision of the Oppo- Rejection of the community trade
sition Division: mark application.
(Case T-112/03)
Decision of the Board of Dismissal of the appeal brought
(2003/C 135/55) Appeal: by L’Oréal S.A.

Pleas in law: — Breach of article 43(2) of


(Language of the case to be determined pursuant to Article 131(2)
Council regulation No 40/
of the Rules of Procedure — language in which the application was
94 ( 1) and rule 22(1) Com-
submitted: English)
mission Regulation
No 2868/95 ( 2) in that there
is, according to the appli-
cant, no time limit for the
An action against the Office for Harmonisation in the Internal applicant to request evidence
Market (Trade Marks and Designs) (OHIM) was brought before of use.