Action brought on 27 May 2010 - Danzeisen v Commission

(Case T-242/10)

Language of the case: German

Parties

Applicant: Werner Danzeisen (Eichstetten, Germany) (represented by: H. Schmidt, lawyer)

Defendant: European Commission

Form of order sought

annul Commission Regulation (EU) No 271/2010, in so far as it amends Regulation (EC) No 889/2008 to the extent that paragraph 9 of Part A of Annex XI concerning the organic logo of the EU referred to in Article 57 provides in a legally binding way that use of the logo is to be 'in accordance with the rules accompanying its registration ... in the Benelux Office for Intellectual Property', in particular in so far as those rules (the regulations on the collective mark) provide

in Article 2(4), that nobody, including the applicant, may use the EU organic logo 'without empowerment from the bodies designed or recognised in accordance with the Community regulations';

in Article 4, for exclusion of liability, the European Union giving no warranty for the use of the EU organic logo in the European Union, except to the extent of its corporate existence and of its underlying entitlement to the organic farming mark, that is to say a limitation of the European Union's liability to the legal identity of the European Union and its entitlement to the registration of the mark;

in the second sentence of Article 7(2), that the collective mark regulations on use and management of the EU organic logo and European Union and national legislation can coexist, but 'that in case of conflict concerning the use of the organic farming mark, the provisions of the present regulations on use and management' shall be applied and take precedence over the other rules, in particular those contained in Regulation (EU) No 271/2010;

in Article 9(3), that the EU organic logo may not be used in any manner that is derogatory to or critical of the European Union or of the collective mark regulations which accompanied its registration in the Benelux Office for Intellectual Property;

in Article 12(1), that the European Union reserves its right to verify all marketing and promotion materials bearing the organic farming mark and periodically to send out requests for samples;

in Article 15(1), that the interpretation of the provisions of the collective mark regulations is reserved to the European Union, and by extension to its legal representative, the European Commission, and is thus not subject to the jurisdiction of the Courts of the European Union;

in Article 15(2), that the regulations on the use and management of the EU organic logo are governed by Belgian law;

order the defendant to pay the necessary costs incurred by the applicant.

Pleas in law and main arguments

The applicant challenges the new version of Annex XI of Regulation (EC) No 889/2008 ¹ introduced by Regulation (EU) No 271/2010. ²

In support of its action, the applicant claims first that there is an infringement of the third sentence of Article 297(1) TFEU, since Annex XI Part A, paragraph 9 of Regulation No 889/2008 in the version of Regulation No 271/2010 refers to the Commission regulations on the collective mark which accompanied the registration of the European logo for organic products in the Benelux Office for Intellectual Property and those regulations were not published in the Official Journal, although they have the same binding legal effects as the text of the Commission Regulation itself.

Second, the applicant claims that the automatic cross-reference to the Commission's regulations on the collective mark gives the Commission the opportunity to alter the actual meaning of Regulation No 271/2010 at will, excluding the Member States, and thereby circumventing and undermining the legitimacy of the legislative measure conferred by the participation of the Member States.

Third, the applicant complains that the regulations on the collective mark provide that nobody may use the European Union logo for organic products without being empowered to do so by the bodies designed or recognised in accordance with European Union regulations. According to the applicant, that is not in conformity with Article 24(2) and Article 25(1) of Regulation (EC) No 834/2007 ³ because those provisions provide for a right for organic holdings to use the European Union logo for organic products for organic products which comply with the regulation.

Fourth, the applicant claims that the regulations on the collective mark provide for an exclusion of liability for the European Commission by which it also releases itself unlawfully from its legal obligation to avoid harm being caused to the applicant.

Fifth, the applicant argues that the provisions of the collective mark regulations provide in the case of coexistence of its provisions with the other legislative measures of the European Union and of national laws that in the case of conflict the regulations will always take precedence, meaning that the primacy of European Union law is not observed.

Sixth, the applicant complains that the regulations on the collective mark preclude him from using the European Union logo for organic products in any manner critical of the European Union. His fundamental right to freedom of expression is thereby infringed, arbitrarily and without justification.

Seventh, the applicant claims that the regulations on the collective mark provide that the European Commission may request samples from users of the European Union logo for organic products and may verify them, giving the Commission direct rights to intervene with regard to undertakings and departing from the division of competences with regard to the Member States.

Eighth, the applicant complains about the registration of the European Union logo for organic products by the European Union as a collective mark, because that is inter alia incompatible with Regulation No 834/2007.

Ninth, the applicant argues that in the regulations on the collective mark the Commission reserves the right to interpret those regulations itself, thereby infringing the monopoly on interpretation of the Court of Justice.

It is finally arbitrary that the regulations on the collective mark lay down that Belgian law also applies to the applicant.

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¹ - Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1)

² - Commission Regulation (EU) No 271/2010 of 24 March 2010 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007, as regards the organic production logo of the European Union (OJ 2010 L 84, p. 19)

³ - Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1)