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9.10.

2004 EN Official Journal of the European Union C 251/21

With regard to Article 4(3) of Regulation No 1972/2003 the Pleas in law and main arguments
applicant argues that the Commission lacked competence and
that there has been a breach of the first paragraph of Article
41 of the abovementioned Act of Accession and infringement With regard to Article 5 of Regulation No 60/2004 the appli-
of the principles of proportionality and non-discrimination on cant raises the following heads of complaint:
grounds of nationality, in so far as the level of duty laid down
in the contested provision exceeds the differential between the
Community customs rate and the Polish rate as on 30 April
2004. — infringement of the principle of the free movement of
goods through the introduction of customs duties in the
With regard to the eighth indent of Article 4(5) of Regulation amount of a customs rate applicable erga omnes and
No 1972/2003 the applicant argues that the Commission exceeding the level of customs rates in force during the
lacked competence and that there has been a breach of the first period prior to Poland's accession to the European Union;
paragraph of Article 41 of the abovementioned Act of Acces-
sion and infringement of the principle of proportionality in so
far as the contested provision covers products for which the — lack of competence on the Commission's part and breach
Polish customs rate for imports on 30 April 2004 was greater of Articles 22 and 41, first paragraph, and Part 5 of Annex
than or equal to the Community rate and also products in IV to the Act concerning the conditions of accession of the
respect of which there was, on 1 May 2004, no evidence of Czech Republic, the Republic of Estonia, the Republic of
surplus stocks at national level. Cyprus, the Republic of Latvia, the Republic of Lithuania,
the Republic of Hungary, the Republic of Malta, the
Republic of Poland, the Republic of Slovenia and the Slovak
With regard to all of the contested provisions of Regulation No Republic and the adjustments to the Treaties on which the
1972/2003, the applicant argues that the Commission abused European Union is founded (1) through the adoption of
its powers by adopting measures the real objective of which measures altering the conditions defined in that Act for the
was not to facilitate Poland in adopting the rules of the adoption by the Republic of Poland of the rules governing
Common Agricultural Policy but rather to protect the market the customs union and through the inclusion by the
of the Community of 15 States against competition from Polish contested provision of products that are not covered by the
agricultural producers. Common Agricultural Policy;

(1) OJ 2003 L 236, p. 33. — infringement of the principle of non-discrimination on


grounds of nationality by reason of the adoption of
measures providing for treatment of persons from Poland
that differs from that of persons from the Community of
15 States who are in a comparable position;

Action brought on 28 June 2004 by the Republic of — breach of a fundamental procedural requirement by virtue
Poland against the Commission of the European Commu- of the inadequate reasoning of the measures adopted;
nities
— infringement of the principle of the protection of legitimate
(Case T-258/04) expectations by reason of the introduction of a method, at
variance with the conditions laid down in the abovemen-
(2004/C 251/39) tioned Act of Accession, of dealing with products which
were in temporary storage on 1 May 2004, were covered
by customs procedures or were in transit within the
(Language of the case: Polish)
enlarged Community, and in particular by reason of the
introduction of customs duties exceeding the level of
customs rates in force during the period prior to Poland's
An action against the Commission of the European Commu- accession to the European Union.
nities was brought before the Court of First Instance of the
European Communities on 28 June 2004 by the Republic of
Poland, represented by Jarosław Pietras, acting as Agent. With regard to Article 6(1) and (2) of Regulation No 60/2004,
the applicant argues that the Commission lacked competence
and that there has been a breach of Article 22, the first para-
The applicant claims that the Court should: graph of Article 41 and Part 4 of Annex IV to the abovemen-
tioned Act of Accession, in conjunction with Council Regu-
— declare invalid Articles 5, 6(1), (2) and (3), 7(1) and 8(2)(a) lation (EC) No 1260/2001 of 19 June 2001 on the common
of Commission Regulation (EC) No 60/2004 of 14 January organisation of the markets in the sugar sector (2) — to the
2004 laying down transitional measures in the sugar sector extent to which the contested provisions provide for account
by reason of the accession of the Czech Republic, Estonia, to be taken by the Commission of processed products
Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia containing sugar (sugar equivalent) when determining the exis-
and Slovakia (OJ 2004 L 9, p. 8); tence of surplus quantities of sugar and isoglucose and impose
a prohibition on the elimination of surplus quantities of sugar
— order the Commission of the European Communities to and isoglucose by way of exportation of processed products
pay the costs of the proceedings. containing sugar (sugar equivalent).
C 251/22 EN Official Journal of the European Union 9.10.2004

With regard to Articles 6(3), 7(1) and 8(2)(a) of Regulation


No 60/2004, the applicant alleges infringement of the princi- Pleas in law: The applicant has shown that the
ples of solidarity and good faith in relations between the shape of the lighter in respect of
Member States and the Community institutions (Article 10 EC) which the application for registra-
by reason of the imposition on Poland, through the contested tion as a Community trade mark
measures, of obligations with which it is in practice not was made is widely recognised by
possible to comply, and by reason of the refusal to cooperate consumers as belonging to it.
with a view to overcoming difficulties which have arisen. The applicant has established that
the shape of the BIC lighter had
With regard to all of the contested provisions of Regulation acquired a distinctive character
No 60/2004, the applicant argues that the Commission abused within the meaning of Article 7 of
its powers by adopting measures the real objective of which is Regulation (EC) No 40/94.
not to facilitate Poland in adopting the rules of the Common
Agricultural Policy but rather to protect the market of the
Community of 15 States against competition from Polish agri-
cultural producers.

(1) OJ 2003 L 236, p. 33.


(2) OJ 2001 L 178, p. 1, as subsequently amended.
Action brought on 25 June 2004 by BIC S.A. against the
Office for Harmonisation in the Internal Market

(Case T-263/04)

Action brought on 25 June 2004 by BIC S.A. against the


(2004/C 251/41)
Office for Harmonisation in the Internal Market

(Case T-262/04)
(Language of the case: French)
(2004/C 251/40)

(Language of the case: French)


An action against the Office for Harmonisation in the Internal
An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the
Market was brought before the Court of First Instance of the European Communities on 25 June 2004 by BIC S.A., estab-
European Communities on 25 June 2004 by BIC S.A., estab- lished in Clichy (France), represented by Michel-Paul Escande,
lished in Clichy (France), represented by Michel-Paul Escande, lawyer.
lawyer.

The applicant claims that the Court should: The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the


Office for Harmonisation in the Internal Market (Trade — annul the decision of the Fourth Board of Appeal of the
Marks and Designs) of 6 April 2004 (Case R 468/2003-4), Office for Harmonisation in the Internal Market (Trade
in so far as it decided that Community trade mark applica- Marks and Designs) of 6 April 2004 (Case R 468/2003-
tion No 1 738 392 should be refused on the grounds laid 4), (1) in so far as it decided that Community trade mark
down in Article 7 of Regulation No 40/94, since BIC has application No 1 738 566 should be refused on the
shown that the conditions for the application of that article grounds laid down in Article 7 of Regulation No 40/94,
were not satisfied in the present case; since BIC has shown that the conditions for the application
of that article were not satisfied in the present case;
— order the defendant to pay the costs.
— order the defendant to pay the costs.
Pleas in law and main arguments:
Community trade mark Three-dimensional trade mark in
applied for: the shape of a lighter. Pleas in law and main arguments:
Goods or services: Goods in Class 34 (smoker's
articles, lighters) — application
No 1 738 392. Community trade mark Three-dimensional trade mark in
applied for: the shape of a lighter.
Decision contested Refusal to register by the exam-
before the Board of iner.
Appeal: Goods or services: Goods in Class 34 (smoker's
articles, lighters) — application
Decision of the Board Appeal dismissed. No 1 738 566.
of Appeal: