In its statement of objection and further to the appropriate consultations, Belgium cited Article 7(3)(c) of Regulation (EC) No 510/2006, under which statements of objection are admissible if they ‘show that the registration of the name proposed would jeopardise [.] the existence of products which have been legally on the market for at least five years preceding the date of the publication provided for in Article 6(2)’.

In support of that analysis, the appellant relies on Article 142a(2) of Regulation No 40/94, introduced by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of 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 Republic to the European Union and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) (‘the Act of Accession’), which provides: ‘[t]he registration of ...[+++] a Community trade mark which is under application at the date of accession may not be refused on the basis of any of the absolute grounds for refusal listed in Article 7(1) [of Regulation No 40/94], if these grounds became applicable merely because of the accession of a new Member State’.

The Commission argued that the decision should have been based exclusively on the treaty article which related to common commercial policy (at the time, Article 133 of the Amsterdam Treaty), and not on the article used (Article 175 of the same treaty, which covered environment policy).

The Commission argued that the decision should have been based exclusively on the treaty article which related to common commercial policy (at the time, Article 133 of the Amsterdam Treaty), and not on the article used (Article 175 of the same treaty, which covered environment policy).

1 By application lodged at the Registry of the Court of First Instance on 26 May 2004, the applicant, relying on Article 232 EC, brought the present action against the Commission for failure to act, seeking a declaration that the Commission is required to adopt, with respect to the Member States, legislation authorising and facilitating cross-border transfers of seats of companies with share capital and of partnerships without the legal orders of the Member States being able to make such transfers more difficult or impossible and, in particular, to convert into a directive the ‘proposal for a Fourteenth Company Law Directive of the Europ ...[+++]ean Parliament and of the Council on cross-border transfers of seats of companies with a change of the applicable law’.

Where in an individual case a restriction of competition within the meaning of Article 101(1) has been proven, Article 101(3) can be invoked as a defence.